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TMI Blog2017 (9) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of short term capital gain-Rs. 32,18,000/-. i. The Ld. CIT(A) erred in confirming the action of the lxi. A. 0. in making addition on account of Short Term Capital Gain amounting to Rs. 32, 18,000/- without appreciating the facts and circumstances of the case. The Appellant, therefore, prays that the addition on account of Short Term Capital Gain is without any basis and the same may be deleted. ii. The Id. CIT(A) failed to appreciate that the Appellant has not transferred any part of the impugned property to Mrs. Minu Chawla and the shop was always in the exclusive possession of the Appellant. Thus, the addition on account of Short Term Capital Gain is without any basis and the same may be deleted. iii. The Id. CIT(A) further failed to appreciate that the Agreement to sale dated 19.07.2004 has been cancelled and nullified by making refund of the consideration received by the Appellant. Hence, the property is in possession of the Appellant. Thus, addition on account of Short Term Capital gain by treating the part of the shop as being repurchases is not at all justified and the same may be deleted." 3. Briefly stated facts are that one Shri Puran Chand was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -07-2004, wherein both the parties have agreed to cancel the earlier agreement to sell as the total property was occupied by the tenant due to which the assessee could not hand over the vacant possession of the property. On cancellation, the assessee returned back all the cheques received from the parties who were supposed to purchase half share in the said shop on encashing them. In these agreements, it was also agreed between the parties to the present agreement that all the rights, title and interest and the interest of the vendor in the said property will remain in assessee's favour. Relevant clause in the agreement dated 03-12-2008 clearly direct that the agreement to sale dated 18-07-2004 is nullified and cancelled. The assessee finally decided to sell this shop to some other party and for that finally on 03-12-2008, assessee entered into an agreement to sell with Manoj Kumar Pruthi, son of late Balwant Rai Pruthi to sell this shop No.6A Khan market, New Delhi for a total consideration of Rs. 75 lakhs. 4. In term of the above facts, the assessee filed return of income for AY 2009-10 and disclosed long term capital gain in respect of sale of this shop at Delhi for a considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 53A requirement is met with by the transferee. In terms of the transferor (in this ease the appellant) not encashing the cheques, it is in no way a reflection on the part of the transferee not performing or willing to perform her part of the contract, and, therefore, again this requirement of Section 53A to deem this transaction as transfer in relation to Capital Asset is also met with. In fact in page 5 para I of agreement dated 28.12.2008, it is again mentioned that AND WHEREAS the parties have mutually agreed that the vendee shall re-purchase the said share of the said property from the Vendors, by refund of the said amount of Rs. 4.90,000/- to the Vendors, so as to nullify/cancel the said Agreement to sell dated 19.07.2004. resulting whereby the Vendee shall become 11w full and complete owner/lessee of the said property and the Vendors shall cease to have any rig/it in the said property or any part thereof'. This clearly shows that the appellant has himself nowhere disputed or challenged the fact that lie is repurchasing the said property, albeit by returning the said amount as was received on 19.07.2004. This fact of not returning the said amount alone cannot construe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty will remain forever. 7. In view of this fact, the assessee claimed that the said agreement to sale dated 19-07-2004 was never acted upon and sale was not completed since assessee has not encashed the cheques for an amount of Rs. 4.50 lacs except the cash receipt of Rs. 40,000/- which was ultimately returned back on cancellation agreement dated 03-12-2008. This clause on page No. 4 to 5 of the agreement dated 03-12-2008 i.e. the cancellation of agreement clearly states as under: - "....and whereas the said Shri Naresh Kukreja (the vendee herein ), entered into an agreement to sell dated 17-07-2004, duly registered as document n. 18628, in Addl. Book No. I, Volume No. 1392, on page 7 to 2 on 19,07,2004/ 25.02.2005, in the office of the Sub Registrar VII, New Delhi, for the sale of 1/s (one half) undivided share of shop bearing No. 6A, Measuring 534 Sq. ft (Equivalent to 267 Sq. Feet), situated at Khan Market New Delhi (hereinafter referred to as the said share of the said property), with Mrs. Minu Chawala and Mrs. Meenakshi Chawala (the vendors herein), on the terms and conditions contained therein. Pursuant to the said agreement to sell, the vendors paid a sum of Rs. 4,90,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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