TMI Blog2011 (6) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that the provisions of sec. 53A of the Transfer of Property Act, 1882 were not complied with - clearly shows that the power of attorney granted was also a subject matter of revocation - expenses are recorded in the books, then obviously the assessee is entitled to the claim of expenses along with the indexation - Appeal dismissed - ITA No.1931/Mds/2010 & 98/Mds/2011 - - - Dated:- 24-6-2011 - Abraham P George, and George Mathan, JJ. Appellant Rep by: Shri P Ranga Ramanujam Respondent Rep by: Shri Shaji P Jacob Per: Abraham P George: ITA No. 1931/Mds/2010 is an appeal filed by the assessee and ITA No. 98/Mds/2011 is an appeal filed by the Revenue against the order of the learned CIT(Appeals)-V, Chennai in appeal No. 469 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance sale consideration, the assessee had filed criminal complaint against M/s. Vijay Shanthi Builders Ltd. Subsequently on 19- 07-2003 a compromise was reached between the assessee and M/s. Vijay Shanthi Builders Ltd. as also one Shri Chandan Kumar, as a consequence of which the sale consideration was reduced by a sum of Rs. 50 lakhs and the balance amount due to the assessee to the extent of Rs. 1.05 crores was agreed to be paid in 8 instalments supported by post-dated cheques, the last cheque being dated 25-01-2004. It was the submission that the possession of the property having been handed over to M/s. Vijay Shanthi Builders Ltd. through the power of attorney dated 27.11.1998, the transfer as per the provisions of sec. 2(47) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the subject matter of levy of capital gains tax. 4. In reply, the learned DR submitted that capital gain has not been offered by the assessee during any of the earlier assessment years in respect of the sale of the said property. It was the further submission that as per clause 15 of the sale agreement, the sale was clearly a conditional sale insofar as if the conditions of the sale agreement were not complied with, the agreement of sale shall automatically stand cancelled. It was the submission that the fact that the assessee had filed a criminal complaint against the purchasers clearly shows that the purchasers had not complied with the conditions of the sale agreement. It was the further submission that the Memo of Compromise entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the decision of the Bombay High Court in the case of Zuari Estate Development And Investment Co. Pvt. Ltd. v. J.R. Kanekar, Deputy Commissioner of Income-tax, reported in 271 ITR 269. 8. We have considered the rival submissions. A perusal of the agreement of sale clearly shows that the agreement had been entered into on 15.5.1998. The sale consideration has been fixed in clause 1 of the agreement. The advance is discussed in clause 3. The payment of the balance of the consideration is discussed in clause 4. Clause 15 (b) reads as follows : b. Equally if the PARTY OF THE SECOND PART does not comply with any of the above terms, it is open to the PARTY OF THE FIRST PART to return the advance already received after deducting damages at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into question when the criminal complaint was filed by the assessee. Further the fact that the compromise deed dated 19-7-2003 has ratified the power of attorney dated 27.11.1998 clearly shows that the power of attorney granted was also a subject matter of revocation. This also supports our view that the provisions of section 53A of the Transfer of Property Act stood violated and transfer did not take place on 27.11.1998 relevant to the assessment year 1999- 2000. In fact, the ratification of the power of attorney through the Memo of Compromise dated 19.07-2003 would show that the power of attorney was given its life again on 19.07.2003 relevant to the assessment year 2004-05. Further on the specific query from the Bench as to whether all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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