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2020 (9) TMI 961 - AT - Income TaxLong term capital gain - actual owner of the property - Holder of Power Of Attorney (POA) - Transfer of asset u/s 2(47) - as per assessee he executed the sale deed in the capacity of agent/ power of attorney holder on behalf of six principal co-owners - AO recorded statements of the persons who had issued the power of Attorney and submitted that the land was sold to the appellant earlier for ₹ 2,50,000/- and they have not received the consideration in respect of the sale made by the appellant - DR submitted that the assessee was actual owner of the property and the assessee has not come forward to explain his conduct for the last 5 years after getting the power Attorney from the said 6 persons - HELD THAT:- Admittedly, immovable property can only be transferred by a person for a consideration by transferring the possession of property through a registered written document as per section 54 of the Transfer Of Property Act read with the corresponding provisions of Stamp Duty And Registration Act . In the present case the revenue has failed to bring on record any document demonstrating handing over of possession / transfer of possession from alleged seller to the assessee either by transfer of title from them to the assessee either by way of a gift or by way of a sale deed. In the absence of any transfer document coupled with transfer of possession it cannot be concluded that the assessee was owner of the property in law. Reliance by the assessing officer on Power Of Attorney, is misplaced as there is neither the handing over of the possession from these persons to the power Attorney holder (assessee) took place nor there is a reference of any sale consideration in the power Attorney. We are also of the opinion that the power Attorney was also revocable. It cannot be inferred or concluded that the 6 persons have transferred the property to the assessee or in other but the assessee was the owner of the property which was sold by the assessee for a consideration of ₹ 10 lakhs on which the long-term capital gain had arisen as the guidance value was more than 69 lakhs. Assessee has set up his case being that of the power Attorney holder, but the Assessing Officer has failed to bring on record the chain of the title document in the form of registered sale deed etc , which can prove that apprent was not real or in other words transfer took place within four corner of law by virtue of POA. In the present case needful has not been done by the assessing officer to bring on record the title of the assessee, by virtue of which the assessee became owner of the property . In the light of the above we are of the opinion that the assessee is able to make out a case for grant of relief favour and accordingly the case of the assessee is required to be allowed and the assessment made by the revenue is required to be deleted. As relying on cases M/S SESHASAYEE STEELS P. LTD. [2019 (12) TMI 702 - SUPREME COURT] and SURAJ LAMP & INDUSTRIES PVT. LTD [2011 (10) TMI 8 - SUPREME COURT] no transfer of property had taken place from these persons to the assessee, the addition in the hands of the assessee is bad in law and accordingly the appeal of the assessee is allowed .
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