TMI Blog2021 (3) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant : Shri R. R. Makwana, Sr. DR For the Respondent : Shri S. N. Soparkar, AR ORDER PER Ms. MADHUMITA ROY - JM: The instant appeal filed by the Revenue is directed against the order dated 03.07.2018 passed by the Commissioner of Income Tax (Appeals) 11, Ahmedabad arising out of the order dated 27.03.2015 passed by the DCIT, Central Circle-1(2), Ahmedabad under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to the Act ) for Assessment Year 2012-13. 2. The deletion of addition of ₹ 8,29,16,210/- on account of long term capital gain has been impugned before us. 3. The short fact leading to the case is this that the appellant along with co-owner entered into an agreement for sale of a plot of land admeasuring 19628 sq. meter, lying and situated at Survey No. 255, F. P. No. 157 at Village Makarba in the district of Ahmedabad on 23.02.2011 for a consideration of ₹ 6,00,00,000/- upon making payment of ₹ 29,40,000/- as stamp duty in terms of Jantri value prevailing as on 23.02.2011. The purchaser received the sale consideration on various dates i.e. on 22.04.2010, 26.05.2010 and 09.06.2010 by cheques. The appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of transfer was not fulfilled as the house was completed prior to the date of registration of the date and, thus, the exemption under Section 54F was finally denied by the Ld. AO as contended by the Ld. DR. 5. On the other hand, the Ld. Senior Counsel appearing for the assessee submitted before us that the fact that the deed of sale of the plot of land in question made on 23.02.2011 upon making payment of stamp duty of ₹ 29,40,000/- for the total consideration of ₹ 6,00,00,000/- ought to have been taken into consideration while assessing the long term capital gain in the hands of the assessee. It was further contended by the Ld. AR that the sale consideration was paid by cheques on 22.04.2010, 26.05.2010 and 09.06.2010 which is reflected in the deed of sale dated 23.02.2011 registered in the Office of the sub-registrar, Ahmedabad when the stamp duty of ₹ 82,22,600/- was paid on Jantri value. In fact, the possession of right title interest of the said land was already handed over to the buyer as on 23.02.2011 which is also reflecting in the said deed of sale. Since the consideration received in full and possession therein was also handed over to the buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.04.2010, 26.05.2010 and 09.06.2010 as the full settlement of the sale consideration. The vendor discharged the liabilities by transferring the right title and interest of the said plot of land by handing over possession of the property as on 23.02.2011 as appeared from the registered deed. Eventually the said document was registered on 05.08.2011 upon making further stamp duty of ₹ 52,82,600/- which can never be the condition of assessing the long term capital gain of the assessee considering the Jantri value of the property as on that date i.e. 05.08.2011 when the deed got registered in the office of the sub-Registrar. The test would be as to when the transfer takes place meaning thereby the transfer of possession of the property upon payment of consideration or transfer by way of ultimate registration of the deed of conveyance. Needless to mention that the owner transferred the right, tile and interest of the capital asset to the purchasers when the consideration is made. Simultaneously the purchaser started enjoying the possession of the property upon making payment for the same. Merely because the sale deed was executed on a letter date only to invoke taxing statute the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer will be complete, then in that case, if the document is not registered, though the assessee will be enjoying the property, he will say that he is not liable to pay the tax. But that is not the intention of the Legislature. In our opinion, the word transfer as indicated in the Incometax Act is required to be considered and not sale as indicated in the Transfer of Property Act. If the intention of the Legislature was different, then there would have been specific reference. Relevant provision of clause (47) of section 2 is as under: Unless context otherwise requires, transfer is to be understood in the simple meaning as it is indicated which includes sale, exchange of relinquishment of the asset or the extinguishment of any rights there or the compulsory acquisition thereof under any law. If the words are defined in the Act itself, then it is not proper to read the meaning of the similar words given in another statute unless otherwise expressly provided. In the Income-tax Act, wherever Legislature has thought fit to have the meaning of the word provided in different statute specific provision has been made. In our opinion, therefore, transfer as defined in the Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document, i.e., conveyance is not executed but the transferee exercises all the rights of the true owner, one cannot emphasize for the taxation purpose that unless and until the deed of conveyance transferring the rights in property is executed, the transferee is not liable though did everything which is required for acquiring a property. As pointed out, vendor is not permitted in law to disposes or question the title of the vendee. We find that the Hon ble Court has been pleased to give credence on the date of transfer of possession of the property by way of transferring the right, title and interest of the property and not the date of registration of the deed of conveyance. Thus, we find that the ratio laid down in the above judgments passed by the Jurisdictional High Court has rightly been applied by the Ld. CIT(A) by holding the said transfer took place on 23.02.2011 when the possession was handed over to the purchaser relevant to the A.Y. 2011-12 and consequently deleting the addition of ₹ 8,29,16,210/- without any ambiguity so as to warrant interference. Hence, the appeal preferred by Revenue is found to be devoid of any merit and hence dismissed. 8. In the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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