9911796707
TMI Blog2017 (11) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... o consider the value of properties amounting to Rs. 24,91,588/- in the block of assets and to allow depreciation claim by the assessee. 3. The appellant craves leave to add, amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of appeal. 4. The appellant prays that the order of CIT(A) on the above ground be set aside and that of the assessing officer be restored." 2. Briefly stated, the facts of the case are that the assessee is a custom house agent and engaged in the field of shipping, clearing and forwarding of export/import consignments from major gateway ports/airports, and also specialized in inland container depot operation related job during the year. The assessee had filed its return of income for A.Y. 2009-10 on 30.09.2009, declaring income of Rs. 9,72,794/-. The case of the assessee was taken up for scrutiny proceedings under Sec. 143(2) of the 'Act'. 3. The A.O during the course of the assessment proceedings observed that the assessee company had sold two properties for an aggregate consideration of Rs. 1,18,87,715/-. It was further noticed by the A.O, that the assessee had also claimed to have made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the property was delivered to the assessee and the same was put to use for its business purpose during the year under consideration, viz. A.Y. 2009-10, therefore, depreciation was allowable as per the provisions of section 32 of the 'Act." (B).Property marked as 94, Sector 2, Koparkhairane, Navi Mumbai: i). The Property marked as 94, Sector 2, Koparkhairane, Navi Mumbai was purchased by assessee, vide agreement dated 18.03.2009 for a consideration of Rs. 70.00,000/-. ii). The physical possession of the property was delivered to the assessee on 18.03.2009. The assessee in order to fortify its contention of having been put into possession of the property on 18.03.2009, placed on the record of the A.O a copy of the possession receipt evidencing the said fact. iii). The property was put to use for the business purposes of the assessee w.e.f. 18.03.2009. iv). That the assessee had capitalized the purchase consideration of Rs. 70.00 lac in its books of account. v). That substantial amount of purchase consideration was paid by the assessee to the seller on or before F.Y.2008-09. vi). That the clause in respect of the final installment of the purchase consideration to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property was registered, nor the full payment of purchase consideration was paid, during the year under consideration. (iv). The A.O observed that as per the deed of assignment and transfer dated.18.03.2009, the property was subject to prior approval from CIDCO in order to facilitate any transfer. That as per the A.O the assessee had during the course of assessment proceedings not furnished the copy of any such approval by the CIDCO. (v). The A.O observed that the character of the aforesaid property which was being used by the director of the company for residential purpose was also not changed before and after the execution of the deed of assignment and transfer dated. 18.03.2009. The A.O on the basis of his aforesaid observations, thus, holding a conviction that the purchases transactions of the aforesaid properties had not yet concluded during the year under consideration, as claimed by the assessee, therefore, excluded the respective additions of the same from the 'block of assets' of office premises. Thereafter, the A.O after reducing from the opening 'written down value' (as on 01.04.2008) of the 'block of assets' of office premises, the sale consideration of Rs. 1,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, any immovable property. Explanation-2 says that "transfer' includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterized as being effected or dependent upon or flowing from the transfer of a share or shares of a company registered or incorporated outside India. 9.2 Now from the plain reading of section 2(47) it is seen that the appellant's case falls under it. The property has been transferred in the name of the company and the property has been used for business purposes is proved by the documentary proof of office expenses, telephone expenses and other expenses bills produced and which were reflected in the profit and loss account. It is also seen that the sale of the said property ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven a thoughtful consideration to the facts of the case and are of the considered view that our indulgence in this case is sought to adjudicate as to whether in the backdrop of the facts borne from the records, it can be concluded that the purchase transactions of the aforementioned properties, viz. (i). Residential property at Nagpur; and (ii). Property marked as 94, Sector 2, Koparkhairane, Navi Mumbai, as claimed by the assessee, had concluded during the year under consideration, viz. A.Y. 2009-10, or not. We have deliberated on the contentions of the authorized representatives for both the parties in the backdrop of the facts available on record, and our view as regards the respective purchase transactions of the aforementioned properties, is as under:- (A). Residential property at Nagpur: (i). We find that as regards the residential property at Nagpur, the same is claimed to have been purchased by the assessee by way of an unregistered agreement to sell, dated. 26.08.2006, executed on a Non-judicial Stamp Paper of Rs. 100/-, while for the sale deed stood executed only as on 24.08.2009. We further find that the assessee taking support of the possession receipt, had claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is claimed to have been purchased by the assessee from its director Shri. L.D Fernandes, who had been using the same for his residential purpose. The aforesaid property was purchased by the assessee by way of an unregistered deed of assignment and transfer, dated. 18.03.2009, executed on a Non-judicial Stamp Paper of Rs. 100/-. We further find that the assessee taking support of the possession receipt, had claimed that the physical possession of the said property was received by him on 18.03.2009, i.e during the period relevant to the year under consideration. That as stands gathered from the records, the A.O had disbelieved the claim of the assessee that the possession of the property was received by him during the year under consideration, i.e A.Y. 2009-10. The A.O held a conviction that in the backdrop of certain material facts, viz. (i). the deed of assignment and transfer was unregistered, on the basis of which the same fell short of a valid document; (ii). no prior approval from CIDCO as statutorily required was obtained to facilitate the transfer; (iii). the total purchase consideration had not been parted with by the assessee in favor of the seller of the property, viz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable. We thus in the backdrop of the aforesaid facts, viz. (i). possession of the property was delivered to the assessee during the year; and (ii). substantial part of the purchase consideration of Rs. 67,04,768/(supra) was paid by the assessee to the seller during the year under consideration, viz. A.Y. 2009-10, would hereinafter proceed with and adjudicate the issue before us. 9. We find that pursuant to the amendment of Sec. 17 of the Registration Act, 1908 in the year 2001, the documents containing contracts to transfer for consideration any immovable property for the purpose of Sec. 53A of the Transfer of Property Act, 1882, are mandatorily required to be registered, if they have been executed on or after the commencement of Registration and other Related Laws (Amendment) Act, 2001. That in the backdrop of the aforesaid amendment, if such documents containing contracts to transfer are not registered, then they shall have no effect for the purpose of Sec. 53A of the Transfer of Property Act, 1882. We are of the considered view that the post amended Sec. 53A of the Transfer of Property Act, 1882 r.w Sec. 17 of the Registration Act, 1908, would regulate the respective agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een characterized as being effected or dependent upon or flowing from the transfer or a share or shares of a company registered or incorporated outside India." We thus are of the considered view that on the basis of the facts, viz. (i). possession of the aforementioned properties was delivered to the assessee during the year; and (ii). substantial purchase consideration in respect of both the properties was paid by the assessee to the sellers during the year under consideration, viz. A.Y. 2009-10, therefore, it can safely be concluded that in terms of the clarificatory Explanation 2 of Sec. 2(47)(v) as had been made available on the statute by the legislature in all its wisdom w.r.e.f 01.04.1962, the 'transfer' of the respective properties under consideration, viz. (i). Residential property at Nagpur; and (ii). Property marked as 94, Sector 2, Koparkhairane, Navi Mumbai, can safely be held to have concluded during the year under consideration, viz. A.Y. 2009-10. We further in the backdrop of our aforesaid observations find ourselves to be in agreement with the contentions raised by the assessee before the lower authorities that though the execution of the sale deed would be indis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received and possession delivered so as to confer dominion over the property on the assessee whereafter the assessee had in its own right allotted the quarters to the staff and they were being actually used by the staff of the assessee. It is common knowledge, under the various schemes floated by bodies like housing boards, houses are constructed on large scale and allotted on part-payment to those who have booked. Possession is also delivered to the allottee so as to enable enjoyment of the property. Execution of document transferring title necessarily follows if the schedule of payment is observed by allottee. If only the allottee may default the property may revert back to the Board. That is a matter only between the Housing Board and the allottee. No third person intervenes. The part-payments made by allottee are with the intention of acquiring title. The delivery of possession by Housing Board to allottee is also a step towards conferring ownership. Documentation is delayed only with the idea of compelling the allottee to observe the schedule of payment. 14. For the foregoing reasons, in our opinion, the High Court was not right in taking the view which it did. The appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
