TMI Blog2017 (3) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the AO and the Ld. CIT(A) has disregarded the claim of the assessee without referring the same to the AO. Thus from the above it is clear that the issue of brokerage has not been adjudicated by the AO. Therefore, in view of the above and in the interest of justice, we are inclined to restore this issue to the file of the AO for fresh adjudication in accordance with law. - Decided in favour of assessee by way or remand. - I.T. A. No. 2231/Kol/2014 - - - Dated:- 3-3-2017 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER For The Appellant : A.K. Tulsyan, CA For The Respondent : Rajendra Prasad, JCIT ORDER Per Waseem Ahmed, AM 1. This is an appeal preferred by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in favour of the transferee. However, the assessee did not offer the gain in the current year on the ground that part payment from the transferee was received in the subsequent year. Therefore, the impugned sale of flats was completed in the subsequent F.Y. i.e. 2010-11. So, the capital gain was offered in the subsequent 2010-12 relevant to the A.Y. 2011-12. However, the AO disregarded the contention of the assessee by observing that the transfer of flat has taken place in the year under consideration as the conveyance deed was registered in favour of the transferee in the F.Y. 2009-10. Accordingly the AO treated the same as current year s income and added it to the total income of the assessee. Aggrieved assessee preferred an appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21,50,000/- was received during the year under consideration itself. There was no dispute arose with the purchasers with regard to sale, agreement/conveyance deed, sale consideration, mode of payment etc., therefore, as per definition of transfer as provided u/s 2(47) of the I.T. Act, 1961, the appellant had relinquished his right on the said properties as both the flats were sold as per agreement/ conveyance deed signed with the purchaser. Under these circumstances, the AO was justified to tax the same as short term capital gain during the year under consideration. Further, the case law cited by the appellant in the case of CIT vs Najoo Dara Deboo (2013) 218 tax man 473 (All) wherein the Hon'ble High Court of Allahabad has held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the conveyance deed was registered in favour of the assessee to the transferee by registering the sale deed in favour of the assessee. Such sale has been treated as transfer within the meaning of Section 2(47) of the Act which reads as under: transfer 79 , in relation to a capital asset, includes,- (i) the sale 79 , exchange 79 or relinquishment 79 of the asset ; or (ii) the extinguishment of any rights therein 79 ; or (iii) the compulsory acquisition thereof under any law ; or (iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment ;] 80 [or] 81 [(iva) the maturit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reveals that the assessee in the instant case has relinquished its right by executing the sale deed in favour of the assessee. Accordingly, we are of the view that the transaction has taken place, therefore, the gain is liable to the taxed in the year under consideration. As such, we find no infirmity in the order of the lower authorities. 11. Hence this ground of appeal of the assessee is dismissed. 12. The second issue raised by the assessee in this appeal is that the Ld. CIT(A) erred in confirming the order of the AO by sustaining the disallowances of brokerage expenses for ₹ 6,00,000.00. The assessee before the Ld. CIT(A) has claimed brokerage expenses for ₹ 6,00,000.00 which were incurred in connection with the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, it is noticed that the claim of expenditure made on account of brokerage was an afterthought and the same is appeared to be a colorable device adopted by the appellant to reduce his tax liability. In this regard reliance is placed on the judgment of Sumati Dayal Vs. CIT reported in 214 ITR 801 (SC) in which the Hon'ble Apex Court has discussed the issue of human probability and surrounding circumstances. It has been held that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. In view of the above, the claim of brokerage is not found to be allowable. 13. Being aggrieved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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