TMI Blog2019 (6) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or substance in the miscellaneous application filed by the Revenue. - MA No. 20/JP/2019 (Arising out of ITA No. 557/JP/2018 - - - Dated:- 17-6-2019 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri P.C. Parwal (C.A.) For the Revenue : Dr. Ram Singh (ACIT) ORDER PER: VIJAY PAL RAO, J.M. By way of this miscellaneous application the Revenue is seeking rectification of the mistake in the order dated 18.09.2018 of this Tribunal. 2. We have heard the ld. DR as well as ld. AR and considered the relevant material on record. The ld. DR has submitted that the Tribunal while passing the impugned order has allowed the claim of deduction U/s 54B of the Act by considering the payment of purchase consideration of agricultural land vide sale deed 29.11.2012 and receipt of sale consideration of the existing asset by sale dated 28.01.2013. The ld. DR has pointed out that though some of the purchase consideration was paid subsequent to the receipt of the sale consideration of the existing asset however, to the extent of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not subsequent to the sale of agricultural land. The assessee has relied upon the agreement to sell dated 22/11/2012 and submitted that when the assessee received the consideration through post dated cheques on the date of agreement to sell and also handed over the possession of the land to the purchaser then the transaction of transfer of existing agricultural land completed on 22/11/2012 which is prior to the purchase of the new asset vide sale deed dated 29/11/2012. The Assessing Officer and the ld. CIT(A) has doubted the existence of the agreement to sell dated 22/11/2012, however, we find that the details of consideration as mentioned in the agreement to sell as well as subsequent sale deed dated 28/01/2013 are same. For sake of completeness, we reproduce the details of cheques through which the assessee received the sale consideration as under: Sl. No. Cheque No. Name of the Bank Amount Dated 1. 358891 Vijaya Bank, Vidyadha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the date of agreement and since the assessee was simultaneously purchasing the new agricultural land, therefore, the assessee has also paid the purchase consideration of the new agricultural land through post dated cheques. We note that the entire purchase consideration was paid by the assessee through the cheques which were encashed after the sale deed dated 29/11/2012. We find from the bank statement that the first part of the purchase consideration was paid on 12/12/2012, the second part of the consideration was paid on 21/12/2012 and the third part of the consideration was paid on 16/01/2013. Thus, the encashment of the cheques of sale consideration as well as purchase consideration clearly shows that the assessee received the sale consideration through post dated cheques and also paid the purchase consideration through post dated cheques. The part payment of the purchase consideration was made after receipt of the part purchase consideration of ₹ 88.00 lacs on 07/01/2013 whereas the purchaser consideration was paid on 16/01/2013. All these transactions were completed even prior to the sale deed dated 28/01/2013. Hence this explanation of the assessee that the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The concession/benefit given in Section 54B will be forfeited if the assessee transfers the fresh land acquired by him within a period of three years from the date of its purchase. Thus the objection and scheme of granting the benefit U/s 54B is to relieve the genuine assessee from the burden of capital gain tax on transfer of agricultural land if the assessee has purchased new agricultural asset by investing the capital gain and as such the purpose was to substitute the existing agricultural land by new agricultural land. Therefore, in order to determine the eligibility of benefit of Section 54B of the Act, the predominant and substantial condition of substituting the agricultural land has to be satisfied. The date of actual transfer of existing land or even the purchase of new agricultural land may not be always relevant for the purpose of Section 54B of the Act. For instance, in case of acquisition of land by the government, the transfer of the land took place when the government takes over the possession but that does not mean that the assessee has received the compensation and even in some cases enhanced compensation is received after lapse of so many year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has established the existence of the agreement to sell dated 22/11/2012 under which the purchase consideration was received by the assessee. The subsequent documents consist of correction deed as well as the affidavit of the purchaser has supported the fact that the consideration for sale of the existing land was received at the time of the agreement to sell dated 22/11/2012 and possession was also handed over on the said date of agreement. Hence when the agreement was subsequently acted upon and in performance of the said agreement, the parties have finally executed the sale deed then the transaction will be considered as transferred as on the date of the agreement. An identical issue was considered by the Coordinate Bench of this Tribunal in the case of M/s Rajasthan Agencies Pvt. Ltd. Vs ITO (supra) in para 6 and 7 as under: 6. Even otherwise the term transfer as per section 2(47) r.w.s. 48 of the of the Income Tax Act is wider than the term sale and it includes all rights and privileges in the property either in praesenti or accruing in future as vested in vendor. Once these rights vested in the vendor were subject matter of the transfer, the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sale deed as a single transaction of transfer with effect from the date on which such transaction was intended and conceived by the parties to the transaction. Hence, agreement to sale dated 11/04/2007 conversion of land use by JDA on 03.02.2010 and 05.02.2010 and execution sale deed dated 13.04.2010 are interlinked and inseparable chain of events necessary for transaction of transfer. The contents of the sale deed dated 13.04.2010 clearly show that it is in furtherance of agreement dated 11.04.2007. The sale deed clearly states that made of payment of consideration as per the details given in the agreement dated 11.04.2007. Therefore, the possession was handed over and consideration was received prior to the date of sale deed. The sale deed in fact ratify the transaction of transfer vide agreement dated 11.04.2007. The parties were very much aware about the need of conversion of land use and accordingly applied to JDA for conversion which was granted in the month of February, 2010 and thereafter the sale deed was executed. Hence, the transfer as per provisions of section 2(47) of the Act is to be considered at the time of agreement dated 11.04.2007. The intention of the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l asset. In the light of the aforestated definition, let us look at the facts of the present case where an agreement to sell in respect of a capital asset had been executed on 27th December, 2002for transferring the residential house/original asset in question and a sum of Rs. 15 lakhs had been received by way of earnest money. It is also not in dispute that the sale deed could not be executed because of pendency of the litigation between Shri Ranjeet Lal on one hand and the appellants on the other as Shri Ranjeet Lal had challenged the validity of the Will under which the property had devolved upon the appellants. By virtue of an order passed in the suit filed by Shri Ranjeet Lal, the appellants were restrained from dealing with the said residential house and a law- abiding citizen cannot be expected to violate the direction of a court by executing a sale deed in favour of a third party while being restrained from doing so. In the circumstances, for a justifiable reason, which was not within the control of the appellants, they could not execute the sale deed and the sale deed had been registered only on 24th September, 2004, after the suit filed by Shri Ranjeet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has observed that a purposive interpretation of the provisions of the Act should be given while considering a claim for exemption from tax. It has also been said that harmonious construction of the provisions which subserve the object and purpose should also be made while construing any of the provisions of the Act and more particularly when one is concerned with exemption from payment of tax. Considering the aforestated observations and the principles with regard to the interpretation of Statute pertaining to the tax laws, one can very well interpret the provisions of Section 54 read with Section 2(47) of the Act, i.e. definition of transfer , which would enable the appellants to get the benefit under Section 54 of the Act. 23 Consequences of execution of the agreement to sell are also very clear and they are to the effect that the appellants could not have sold the property to someone else. In practical life, there are events when a person, even after executing an agreement to sell an immovable property in favour of one person, tries to sell the property to another. In our opinion, such an act would not be in accordance with law because once an agreement t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is eligible for deduction U/s 54B of the Act in respect of the agricultural land purchased for total cost of ₹ 2,47,60,900/-. Accordingly, the orders of the authorities below are set aside qua this issue. Thus, the Tribunal has decided the issue on merits after analyzing and evaluation of the relevant facts and evidence. The said decision on merits of the case cannot be reconsidered in the proceedings U/s 254(2) of the Act. The Revenue is reiterating its stand and it was taken by the AO while disallowing the claim of deduction U/s 54B of the Act hence, we do not find that the miscellaneous application has pointed out any apparent mistake on the face of the order which can be rectified U/s 254(2) of the Act. The jurisdiction of the Tribunal U/s 254(2) of the Act is very limited and circumscribed to rectify the apparent mistake on record but not to reevaluate the fact and evidence already considered while passing the impugned order on merits. Hence, we do not find any merits or substance in the miscellaneous application filed by the Revenue. In the result, the miscellaneous application is dismissed. Order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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