TMI Blog2019 (5) TMI 1499X X X X Extracts X X X X X X X X Extracts X X X X ..... Lamp Industries Pvt. Ltd. (Supra), we hold that there was no transfer of the land upon the execution of power of attorney in favor of the party. Thus the transaction for the transfer of property has not been affected in the assessment years 2010-11 and 2012-13 as claimed by the assessee upon the execution of power of attorney. Accordingly, we decide the issue against the assessee. There was no transfer of the impugned property in the year under consideration as alleged by the AO. It is because the sale deed was registered as admitted by the AO on 19 April 2012 i.e. financial year 2012-13 corresponding to assessment year 2013- 14. Hence there cannot be any addition to the total income of the assessee on account of capital gain for the year under consideration. The provision of section 45 of the Act requires to tax the income in the year of transfer of the property. Capital gain income on the sale of the land cannot be taxed in the year under consideration. Accordingly, we reverse the order of the ld. CIT-A and direct the AO to delete the addition made him. Hence the ground of appeal of the Revenue is partly allowed. - ITA No. 1605/Ahd/2016 - - - Dated:- 23-5-2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrevocable general power of attorney dated 21/07/2010 and 28/03/2012 for a consideration of ₹ 7,75,000/- and ₹ 37,00,000/- respectively. As the assessee transferred the said land by irrevocable power of attorney, therefore it treated the said transfer was made as per the provision of section 2(47)(vi) of the Income Tax Act. The amount of stamp duty on the registration of irrevocable power of attorney with sub-registrar was also paid. The assessee further submitted that the said agriculture land bearing survey no. 934 admeasuring 2428 sq.mts situated at village unvarsad was purchased for a consideration of ₹ 10,00,000/- which was paid in two parts on 19/03/2010 20/03/2010 through cheques and cash respectively. After that, the conveyance deed was registered on 13/04/2010. The assessee incurred the total cost for the acquisition of the Agriculture Land amounting to ₹ 10,63,950/- including stamp duty, registration fees other legal expenses. The assessee accordingly recognizes the capital gain on sale of agriculture land in two assessment years. Firstly on the transfer of 1365 sq.mtrs in A.Y. 2010-11 and another secondly on the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 1,66,56,080/- as the valuation made by the stamp valuation authority. Thus the AO recomputed the STCG on the whole of the agriculture land in A.Y.2012-13 by presuming that the land was transferred in A.Y.2012-13 which comes to ₹ 1,23,57,940/- and added to the total income of the assessee. 4. The aggrieved assessee preferred an appeal before the Ld. CIT (A). The assessee before the Ld. CIT (A) besides the submission made before the AO, further submitted that it had rightly declared the STCG in two years as the transfer was considered within the meaning of the provision of section 2(47)(vi) of the Income Tax Act. The assessee also claimed that the irrevocable power of attorney was executed along with the payment of consideration received so that the irrevocable right in the property was created in favor of the purchaser. The assessee further submitted that the value adopted by the AO for sale consideration by applying the provision of section 50C was erroneous as the provision of section 50C of the Act will be applicable where the consideration is different from the valuation made by the stamp valuation authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to compute the STCG. After that the AO made the addition to the total income of the assessee in the A.Y.2012-13. However the Ld. CIT (A) deleted the addition made by the AO by observing that the STCG should be assessable in the A.Y.2013-14 instead of 2012-13. The Ld. CIT (A) also held that the transfer of the property through irrevocable power of attorney as a valid instrument for transfer of immovable property in terms of the provision of section 2(47)(vi) of the Act. From the preceding discussion, the issues that emerge for our adjudication is detailed as under: i. Whether the assessee transferred the impugned land on the date of sale deed, i.e. 19th April 2012 as held by the AO. ii. Whether the transfer of the property is valid by way of executing irrevocable power of attorney Whether the impugned land was transferred by the assessee on the date of sale deed, i.e. 19th April 2012 as held by the AO. At the outset, we note that AO himself in his order has taken the of sale deed, i.e. 19th April 2012 as the date of transfer of the impugned land. Thus as per the AO capital gain on the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of attorney executed by the party. In that context, the judgment was delivered by the Hon ble Delhi High Court after referring to the judgment of Hon ble Supreme Court in the case of Suraj Lamp Industries Pvt. Ltd. (Supra). A s such there was no issue regarding the transfer of the property under the income tax Act for working out the tax liability under the head capital gain. Thus we are reluctant to place our reliance on the judgment of Hon ble Delhi High Court in the given facts and circumstances. At this juncture, we also find important to refer the relevant provisions (bold letters) of section 2(47)(vi) of the Act which reads as under: 47) 88 [ transfer 89 , in relation to a capital asset, includes,- XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way 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 . A plai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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