TMI Blog2019 (10) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... -stated. The assessee is bound to cooperate in the said, set aside proceedings, offering explanation/s qua the factual or legal aspects of the matter, if any, as may be raised by the assessing authority. The AO, needless to add, shall observe the time limit as prescribed u/s. 153, i.e., w.e.f. 01/6/2016. Assessee s appeal is allowed for statistical purposes. - I.T.A. No. 78/Asr/2015 (Assessment Year: 2007-08) - - - Dated:- 1-7-2019 - SH. SANJAY ARORA, ACCOUNTANT MEMBER Appellant by: Sh. P. N. Arora P. K. Singla (Advs.) Respondent by: Sh. Charan Dass (D.R.) ORDER Per Sanjay Arora, AM: This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals), Bathinda ('CIT(A)' for short) dated 17.12.2014, dismissing the assessee s appeal contesting his assessment u/s. 143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) dated 15.12.2009 for the Assessment Year (AY) 2007-08. 2. The issue in this appeal is the determination of the correct amount of capital gain arisen to the assessee on the sale of his land to Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant capital asset, the only recourse in law in case of non-recovery is the enforcement of the relevant contract under law. The assessee during hearing rebutted this on the basis of the decision in CIT v. Balbir Singh Maini [2017] 398 ITR 531 (SC), wherein it stands clarified that section 53A of the Transfer of the Property Act, 1882 and, thus, section 2(47)(v) of the Act would not get attracted after the coming into effect of the Registration and Other Related Laws (Amendment) Act, 2001, where the relevant agreement is not registered under the Registration Act, 1908. The argument is no doubt valid. It would however not be of much assistance to the assessee as clause (v) of s. 2(47) provides one of the modes of transfer as defined u/s. 2(47). To effectively meet the charge of transfer, it, therefore, ought not to fall under any of the clauses of sec. 2(47), for which the attention of the ld. counsel for the assessee, Sh. Arora, was during hearing drawn to s. 2(47)(vi), which reads as under: Definitions. 2. In this Act, unless the context otherwise requires, - (47) transfer, in relation to a capital asset, includes,- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be extended only with the mutual consent of the parties. How could, then, the sale be regarded as conditional? The agreement nowhere makes the sale deed as conditional to the court s decision. How could, rather, if the title was not clear, the assessee (and his brothers) enter into an ATS in the first place? The deferring of the sale deed by the parties, i.e., on their own violation, would not make the transfer conditional to the execution of the sale deed. Upon this being observed by the Bench during hearing, Sh. Arora would submit that the matter being sub judice, the sale deed could not in fact be executed. On the basis of the interim order of the Court (SDM) dated 25.11.2014, the Tehsildar made a detailed map of the area vide his order dated 24.12.2014 (PB pgs. 19-21). The certified copy of the order dated 25.11.2014 was obtained a few days after the passing of the impugned order, for which in fact the ld. CIT(A) was requested to, in anticipation, defer his order. In fact, the matter has since been resolved and the assessee is found to be the owner of only 20 Marlas of land out of the total 146 Marlas of land subject to the sale agreement, i.e., instead of 62 Marlas ostensibly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a sale on credit, allowing the buyer (of goods or services) time to make the payment for the same, even as the delivery of possession of goods or of services is immediate. 4.4 The matter, accordingly, is restored back to the file of the assessing authority for factual determination. As explained by the Apex Court in CGT v. Abdul Karim Mohd. [1991] 191 ITR 317 (SC), speaking in the context of a gift deed, that the recitals in the deed of gift are not conclusive to determine the nature of the validity of the gift. It clarified that it is the conduct and the entirety of the circumstances that are to be taken into account. I make it abundantly clear that the transfer u/s. 2(47) in the instant case would, irrespective of actual date of the sale deed, or even the non-execution thereof, arise on the basis of the ATS dated 04/12/2006 if the sale deed could be executed by the assessee on that date upon the receipt of the balance consideration. If not, as where there is a subsisting dispute qua the ownership of the subject land, irrespective of the recital/s in the ATS, transfer u/s. 2(47) cannot be said to have taken place on that date, but only on the date on which this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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