9911796707
TMI Blog2013 (8) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... 008-09. In this appeal, the appellant has sought to raise the following substantial questions of law as arising out of the order of the Tribunal for our consideration. "1. Whether in law, the Tribunal was justified in sustaining the action of Assessing Officer in denying the benefit of exemption u/s. 54F of the Act to the Appellant overlooking the evidences produced? 2. Whether in law, the Tribunal was justified in negating the view of the Appellant by terming the evidences produced are 'not credible as such' when such evidences clearly establish the fact that the appellant held the subject property for more than 3 years to suit the requirement of section 54F of the Act? 3. Whether in law, the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and concluded the assessment on the premise that it was only short term capital gain after discussion with the representative of the assessee at the time of hearing. 5. The assessee appealed to the Appellate Commissioner that the assessing authority was not right in denying the benefit of exemption under section 54-F of the Act in respect of sale transaction dated 23.1.2008. Before the appellate authority, the assessee took up the stand that though no doubt the assessee had purchased the property in question as per sale deed dated 7.10.2005 registered on 10.10.2005, the possession of the property had been taken earlier by the assessee pursuant to an agreement to sell dated 15.09.2004 and such transaction agreement coupled with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F of the Act, is justified and on this aspect, dismissed the appeal to the extent of the claim under section 54-F of the Act is concerned. However, the assessee got the relief in respect of other aspects which we are not concerned with in this appeal. 7. In her further appeal to the Tribunal, the assessee reiterated her stand of the sale transaction having been preceded by earlier agreement for sale and putting the assessee in possession and therefore contended that the orders passed by the assessing authority and first appellate authority are liable to be set aside and prayed for setting aside the same. Quite naturally, the appeal was resisted by the revenue. 8. Learned counsel for the appellant - assessee contended before the Tribunal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as noticed earlier. 12. Appearing on behalf of the appellant - assessee, Sri. Mallaharao, learned counsel has vehemently urged that the definition of the word 'transfer' under section 2[47] of the Act includes transfer in the nature of agreement coupled with transfer of possession and therefore the authorities have committed a clear error when it is definite stand of the assessee that the assessee had got into possession of the subject land even on 15.09.2004 as per the agreement; that the copy produced before the appellate authority should have been accepted and acted upon. 13. On the other hand, Sri. K.V. Aravind, learned standing counsel appearing for the revenue has submitted that the recital in the sale deed very clearly says t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellant that the definition of the word 'transfer' under section 2[47] of the Act includes situation where transaction involving allowing of possession of any immovable property in part performance of the contract. But that should be made good on material placed on record and through cogent evidence. The claim of the assessee that there was transfer of possession to her under the agreement dated 15.09.2004 has not been made out on acceptable material facts before the three authorities and the finding of all the three authorities is that there is nothing to indicate that assessee was in possession of the subject land even as on 15.09.2004. If that is the finding of fact, we are afraid that there is no scope for interference f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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