TMI Blog2015 (8) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... urt). The ld. CIT(A) has coterminous power and whatever additional evidences submitted by the assessee before him had not been adjudicated proper perspective and in legal framework as no application for filing of additional evidence had been referred by him and no finding had been given by the ld. CIT(A) that these evidences are required to decide the basic cause of the assessee. Therefore, in the interest of justice, we set aside the issue to the file of the AO to decide it de novo by providing reasonable opportunity of being heard to the assessee. - Decided in favour of revenue for statistical purposes. - ITA No. 708/JP/2012 - - - Dated:- 11-8-2015 - SHRI R.P. TOLANI AND SHRI T.R. MEENA, JJ. For The Revenue : Shri Purshottam Kashyap, JCIT For The Assessee : Shri Manish Agarwal, CA and Shri Javed Khan, Advocate ORDER PER T.R. MEENA, AM This is an appeal filed by the Revenue against the order of the ld. CIT(A)-II, Jaipur dated 04-05-2012 for the assessment year 2009-10 raising therein grounds as under:- On the facts and in the circumstances of the case, the ld. CIT(A) has erred in:- (i) accepting the assessee s plea that the plot in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 2.1 Brief facts of the case are that the assessee filed its return of income on 2-07-2009 declaring total income at ₹ 5,70,916/-. The assessee had income from house property. The case of the assessee was scrutinized u/s 143(3) of the Act. During the course of assessment proceedings, vide query letter dated 15-02-2011, the assessee was required to furnish the details of transactions of immovable property covered under AIR information. No such information was furnished by the assessee. It was gathered that the assessee had sold a house property situated at Krishna Tower, Dhuleshwar Garden, C-Scheme, Jaipur on 26- 04-2008 for ₹ 75,72,988/-. The AO gave reasonable opportunity of being heard to the assessee on this issue and asked to calculate the capital gain arising on sale of the property which has not been shown in the return. The assessee furnished the copy of the sale deed dated 28-04- 2008 and also computed the capital gain at nil after making the claim of indexed cost of acquisition and improvement. As per sale deed dated 28- 04-2008, the assessee alongwith co-owner Smt. Shashi Gajaria had sold a portion measuring 2670 sq. Ft situated at III floor of Krish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shwar Garden, Jaipur was purchased by them in the year 1980 by making part payment and possession was also taken in that year from Smt. Indira Ashok Gajaria. The assessee was called up to furnish copy of registered sale deed and proof of payment of taking possession and other documentary evidences to support this claim. The assessee had filed a photocopy of undated Vikray Anuband in support of the aforesaid claim which was not registered with the Registration Authorities and it was undated, not witnessed by anyone and the particulars of description of property given was also not correct. The AO therefore, asked the assessee to produce the original sale agreement in order to make further verification. However, the assessee failed to submit the original sale agreement on the pretext that same was not available. Therefore, the AO proposed to disallow the indexed cost acquisition in the year 1980. The assessee submitted reply vide letter dated 22-11-2011 which has been reproduced by the AO at pages 4 and 5 of the assessment order. The AO after considering the assessee's reply concluded as under:- 8.2 (i) First of all, the so called Vikray Anuband photocopy of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed before the Sub-Registrar, Jaipur City In this way, the buyer has paid all and entire sum of sale price to the seller. The receipt whereof the seller acknowledges herein this deed of sale. NOW AFTER HAVING RECEIVED ALL AND ENTIRE SALE PRICE, THE SELLER HAS SOLD OUT, DISPOSED OFF, CONVEYED AND TRANSFERRED 1/4TH UNDIVIDED PART OF THE SIAD IMMOVALE PROPERTY TO THE BUYER DESCRIBED IN GRATER DETAIL IN THE SCHEDULE-1 hereinunder and the property of which this part has been sold shown by yellow colour in the site plan enclosed to this deduction of sale which is an indispensable part and parcel of this deed of sale. AND THE SELLER HAS HANDED OVER ACTUAL PHYSICAL POSSESSIONOF SOLD OUT PROPERTY TO THE BUYER WHICH THE LATTER HAS TAKEN OVER FROM THE SELLER. AND NOW THE BUYER HAS BECOME ABSOLUTE OWNER OF THE SOLD OUT PART OF IMMOVABLE PROPERTY INSTEAD OF THE SELLER AND THE BUYER IS ALL CAPABLE TO USE AND UTILIZE IT IN THE MANNER AS THE BUYER WISH. THE SOLD OUT PART OF THE SAID PROPERTY ALSO CONSISTS OF ALL RIGHTS, INTERESTS EASEMENT TO BE VESTED IN THE BUYER. Further, the registered sale deed in respect of the other 1/4th part of sold property dated 29-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s discussed above. He further referred to Transfer of Property Act in case of tangible immovable property and registration requirement and Section 53A of Transfer of Property Act for part performance. He relied on decision of Hon'ble Apex Court in the case of M/s. Suraj Lamp Industries (P) Ltd. vs. State of Haryana Ors 2011 STPL 879 (SC) wherein it was held that immovable property can be legally and lawfully transferred / conveyed only by a registered deduction of conveyance. The assessee later on entered into an agreement with the developer M/s. Blue Sky Buildestate (P) Ltd. for construction of a complex. This agreement clearly mentions that the property was purchased by the assessee alongwith the co-owner on 28th 29th Nov. 1997. The agreement further specifies that the charges for changing land used will be shared by both the parties according their respective share and in case developer obtains permission for additional area, fee charges shall be borne by both the coITA owners and the developer in proportion of 53% and 47% respectively. The agreement further specifies that the developer shall bear the cost incurred in installing transformer and electric connections in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 3786494 Less: Indexed cost of acquisition 27th /28th Nov. 1977: ₹ 495500+Rs. 495500 ₹ 991000x582 331 ₹ 1742483 20% thereof ₹ 348496/- ₹ 348496/ Indexed cost of improvement as Discussed above (20%) 2002-03 ₹ 47570x582 447 ₹ 61936 2003-04 Rs. 14542x582 463 ₹ 18280 2004-05 ₹ 7152x 582 480 ₹ 8671 ₹ 88887 thereof allowable LTCG ₹ 44443 ₹ 3393555 He further held that as to indexed cost of acquisition and indexed cost of improve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayments having been made to seller is evident from the registered sale deed itself and the agreement to sale entered into before executing the registered sale deed. 3. The buyer has been in possession of the said land since 1980 which in fact is evident and noted in the sale deed itself as well as the registration to sale. 4. According to the provisions of Section 2(47) of the I. T. Act, 1961, a capital asset is considered to be where the possession thereof has been transferred in part performance of a contract of the nature referred to in Section 53A of the Transfer of Property Act, 1882. Therefore, the date of acquisition has to be considered as the date of taking possession of the property i.e. May, 1980. 5. The AO has doubted only the enforceability of agreement to sale on the ground that the agreement was not witnessed and was not registered. However, the AO failed to appreciate the corroborating evidence in the shape of registered sale deed which also records the same facts as are recorded in the agreement to sale and thus, the sale deed corroborates the facts narrated in the agreement to sale. Therefore, when there is a supporting evidence/ registered sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2011) 332 ITR 306 (P H) (vi) Essar Oil Ltd. (ITA No. 3661 2827/M/2000) (vii) Mr. Ganesh V. Lakhia vs. Addl. CIT (ITA No. 1823/Mum/2010 A.Y. 2006-07, order dated 8-04-2011) (viii) Mahindra Engg. Chemical Products Ltd. (ITA Nos. 1258 to 1261/Mum/2010 A.Y. 2001-02 to 2004-05 The ld. AR of the assessee at last requested to dismiss the appeal of the Revenue. 2.6 We have heard the rival contentions and perused the materials available on record. We find from the records that the assessee has not produced the original sale agreements entered between the parties before the AO. The assessee has also not disclosed the capital gains in the return as well as in revised return. The AO got information through AIR that it was an immovable property sold by the assessee and on that basis, the AO asked the assessee to give particulars of property sold and capital gains earned on it. The assessee submitted partial evidences before the AO and claimed the capital gains in case of these immovable property transactions showing income at nil. However, the AO was not supposed to entertain the assessee's claim by relying on decision of Hon'ble Apex Court in the case of Goetze In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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