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2022 (5) TMI 1371 - AT - Income TaxLong Term Capital Gain from sale of land - valid transfer of a capital asset or not? - Possession given or not? - assessee company submitted before the A.O. that in this case, there is no transfer of the land as per the provisions of Section 54 and 55 of the Transfer of Property Act - HELD THAT:- The assessee has not denied the fact that the it had entered into a registered sale deed dated 01/11/2013. Assessee has not denied receipt of the entire sale consideration - assessee claims that no possession was given. This submission of the assessee regarding possession of the land is not being given is against the recital of the registered sale deed. The registered sale deed categorically mentions that peaceful and vacant possession has been handed over to the purchaser. Recitals of the registered sale deed that the vacant and peaceful possession has been handed over to the purchaser have to be taken as the true fact. It is not a claim of the assessee that it had not disclosed all the facts about the impugned land to the buyer Mr. Mustak Saheblal Shaikh. Therefore, it is not the claim of the assessee that it was a fraudulent transaction. It is also not the claim of the appellant assessee that he had no intention to enter in the transaction. From the Clauses of the Sale deed, it can be inferred that both the vendors and Vendee have full knowledge of all the clauses mentioned in the Sale deed. There is no evidence filed by the AR to prove that the contents of the said registered sale deed are not true or are false. Therefore, it means the possession was handed over to the Purchaser, purchaser had paid entire consideration to the seller and the purchaser became the legal owner of the impugned land on 1/11/2013. Neither the purchaser nor the seller has filed any FIR against the so called villagers who opposed the buyer. The assessee is a legal owner of the property, if there were any encroachments, appellant assessee had not filed any evidence to prove the so-called encroachments, therefore, the said claim of the assessee is unsubstantiated. The purchaser Mustak Saheblal Shaikh had paid the stamp duty and registration charges. Secondly the Appellant after 15 days have purchased the impugned land from Mr. Mustak Saheblal Shaikh by entering into a registered Sale Deed, the said sale deed does not mention anything about the encroachments. There is no cancellation deed. This sale deed is an independent transaction. The second registered sale deed dated 16/11/2013 mentions Mr.Mustak Saheblal Shaikh as owner of the said impugned land. Thus, both the appellant and Mr. Mustak Saheblal Shaikh had admitted before the registrar while registering the sale deed that Mustak Saheblal Shaikh is the owner of the impugned land on16/11/2013. Thus in the second recital also facts have been admitted both by the assessee and Mr.Shaikh. Thus on 16/11/2013, Mustak Saheblal Shaikh was the legal owner of the impugned land as per the registered sale deed dated 16/11/2013. The assessee placed reliance on the “Affidavit” of Mr. Mustak Saheblal Shaikh dated 3/11/2016. This document is titled as “affidavit” on Rs.100/- stamp paper and it is notarised. This notarised document does not have more evidentiary value than the two registered Sale deeds. It was executed three years after the Sale deeds. It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act,1872 .Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Indian Evidence Act. Therefore, the said document is mere self-serving statement. In the present case, assessee has not claimed that the transaction is sham. In the present case, we have considered all the evidences put forth by the assessee. All these things establish that there was a valid legal registered sale deed dated 01/11/2013 by which vacant and peaceful possession of the impugned land was given to the purchaser and the purchaser had paid entire consideration to the seller. Therefore, it is a transfer of capital asset and hence attract capital gain tax. Therefore, the Assessment Order is upheld. Thus, the grounds of appeal raised by the assessee are dismissed.
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