TMI Blog2022 (2) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... on 15.12.2007, which date falls in the previous year relevant to the A.Y. 2008-09 and, as such, the amount of capital gain becomes chargeable to tax in such preceding assessment year. Since the transfer of the property took place on execution of sale deed in the preceding year, we hold that the amount of capital gain cannot be charged to tax for the A.Y. 2009-10 under consideration. On a specific query, the ld. AR candidly admitted that no capital gain was offered for taxation by the assessee in her return for the A.Y. 2008-09 or any other year. AO is at liberty to take necessary action for taxing the amount in the correct assessment year as per law. Assessee appeal is allowed. - ITA No.1849/PUN/2018 - - - Dated:- 17-2-2022 - Shri R.S. Syal, Vice President For the Assessee : Shri V.L. Jain For the Revenue : Shri M.G. Jasnani ORDER PER R.S.SYAL, VP : This appeal by the assessee takes exception to the order passed by CIT(A), Pune-5, Pune on 27.09.2018 in relation to the assessment year 2009-10. It is a recalled matter inasmuch as the earlier order passed by the Tribunal on 16.04.2019 u/s 254(1) of the Income-tax Act, 1961 (hereinafter referred to as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility was inadvertently not dealt with in the order u/s 254(1) of the Act. This is how, the Tribunal recalled the original order passed u/s 254(1) for the limited purpose of dealing with the contention about the correct year of taxability. 3. I have heard both the sides and scanned through the relevant material on record. The ld. AR opened his arguments by harping on the contention that the transaction of sale of property was cancelled by mutual consent and hence no transfer took place so as to attract chargeability under Chapter IV-E of the Act. This argument, in my opinion, has lost relevance anent to the Tribunal forum because it has already been dismissed by the Tribunal in its original order passed on 16.04.2019. It was only pursuant to the Miscellaneous Application filed by the assessee on the raison d etre that the sale deed was executed on 15.12.2017 and transfer, if any, should have been considered in A.Y. 2008-09 and not A.Y. 2009-10 under consideration, that the Tribunal recalled the earlier order for the limited purpose of adjudicating the year in which the transfer is to be considered to have taken place. Thus, the decision of Tribunal, as per the original order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that the decision in Balbir Singh Maini (supra) has no application to his case as the same has been rendered in the context of transfer u/s 2(47)(v) of the Act. Au contraire, the transfer in the case of the assessee was covered by section 2(47)(i) of the Act. 6. At this stage, it is significant to take note of the mandate of section 17(1) of the Registration Act with the caption Documents of which registration is compulsory providing, inter-alia, that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property are required to be registered compulsorily. Section 49 of the Registration Act with the caption Effect of non-registration of documents required to be registered provides that no document required by section 17 of the Registration Act or by any provision of the TPA to be registered shall, inter alia, affect any immovable property comprised therein or be received as evidence of any transaction affecting such property or conferring such power, unless it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n tax. 8. The position underwent change by the 2001 amendments, the object of which was to do away with the part performance of the contract as amounting to transfer unless the sale deed is actually registered. To give effect to this intention, firstly, sub-section (1A) came to be added to section 17 of the Registration Act providing that: The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A . Simultaneously, proviso to section 49(1) of the Registration Act was amended to exclude the expression or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882 . Side-by-side, an amendment was also carried out in 2001 to section 53A of the TPA omitting the expression the contract though required to be registered, has not been registered, or . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed between the parties in the document, it is from its execution that the parties intend to act upon it and make it operational. Section 47 of the Registration Act states that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made (that is, on its execution). It means that the time lag between the execution of a document and its registration is ignored insofar as its operation is concerned. Thus, all the documents, whether or not requiring registration, operate from the date of their execution and the date of registration, where registration is mandatory, is irrelevant insofar as their operation is concerned. Whereas, section 17 of the Registration Act lists the documents whose registration is compulsory and section 49 of the Registration Act deals with the effects of non-registration of documents required to be registered u/s 17 of that Act, section 47 of the Registration Act deals with an altogether different aspect of time from which a registered document operates. It is only after a document required to be registered is actually registered as per section 17 of the Registration Act th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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