9911796707
TMI Blog2022 (5) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... his case, the assessee filed its return of income on 30.07.2009 declaring total income of Rs.23,09,860/- and the same was duly processed u/s 143(1) of the Income Tax Act, 1961 ("the Act"). Subsequently, the Assessing Officer ("AO") noticed that on perusal of computation of capital gain in respect of sale of house, it was noticed that the assessee had claimed indexed cost of acquisition of rs.11,55,741/-. The indexed cost of acquisition was calculated on various payment made on different dates. However, the property was purchased on 24.06.2003 on total payment of Rs.6,86,206/- which gives indexed cost of acquisition only Rs.8,62,574/-. Hence, a sum of Rs.2,93,166/- was shown less capital gain by the assessee. The AO after recording the reasons re-opened the assessment u/s 147 of the Act and issued a notice u/s 148 of the Act. In response to the notice issued u/s 148 of the Act, the assessee stated that return of income filed for the Assessment Year 2009-10 be treated as income tax return filed in response to the notice u/s 148 of the Act. Therefore, the reason of re-opening of assessment was communicated to the assessee. The assessee filed his objections and the AO disposed off thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- 3. Proceed from sale of house 14,00,000/- 4. Interest Income 32,500/- 5. Dividend Income 1,18,200/- However, On perusal of computation of capital gain against sale of house of Rs. 14,00,000/-, it is noticed that assessee has claimed indexed cost of acquisition of Rs. 11,55,741/-. However, The property was originally purchased on 24.06.2003 on total payment of Rs. 6,86,206/- which gives indexed cost of only Rs. 8,62,574/- as per calculation below: Rs. 6,86,206 * 582/463= Rs. 8,62,574/- This gives a difference of Rs. 2,93,166.70/- from the index cost adopted by the assessee for calculating the capital gain. Therefore, I have reason to believe that Income of Rs. 2,93,166/- has not been disclosed which has escaped assessment within the meaning of the section 147 of the I. T, Act. Copy of letter is enclosed as per Annexure '6'. 8. The appellant filed objection against reasons recorded for issuance of notice u/s 148 of the Income Tax Act, 1961, vide letter dated 27- 06-2016. Copy of letter Is enclosed as per Annexure '7'. 9. The Id. Assessing officer disposed the objections vide letter dated 07-11-2016. Copy of letter enclosed as per Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r mentioned the reason that the indexed cost shall be taken from the year in which actual registry is made in favor of the assessee and he acquires the complete right over the said property. 19. As per Section 2(47) (v), "transfer", in relation to a capital asset includes any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of property Act, 1882. 20. As per section 53A of the Transfer of Property Act, 1882, where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty Act, 1882. This sale agreement was duly signed by document writer, advocate, witness and by the notary also. Power of Attorney executed by the seller in favour of the buyer, the appellant was duly registered with Sub-Registrar, Noida. 23. The Government has amended Section 17A of the Registration Act, 1908 in the year 2001 in such a manner that the documents containing contracts to transfer for consideration of 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 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 purpose of Section 53A of the Transfer of Property Act, 1882, subject to one safeguard that unregistered agreement of sale executed earlier would be taken as a tool to enforce part performance of the contract by the other part. We may conclude that Power of Attorney, Sale agreement, Contracts to sale etc., made should be registered for transfer of valid title of ownership to the transferee. But provisions of section 2(47) (v) are appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.CIT(A) has decided the issue by observing as under:- 5.1. "Ground nos. 1, 2 and 3: The appellant has challenged the addition of Rs. 2,93,166/- on account of change in year of purchase of property for the purpose of indexing. During the course of appellate proceedings it has been submitted that appellant purchased the property that is a flat by GDA on 03.10.1997. At the time of purchase a sale agreement and power of attorney was executed between seller and the appellant duly registered with Sub Registrar, Noida. The possession letter issued to the seller by GDA of the flat was handed over to the appellant at the time of purchase by appellant on 03.10.1997. The appellant enclosed copy of electricity connection details and copy of house tax certificate were enclosed. Examination of the possession letter reveals that it is offer of possession given to the previous owners namely Smt. Lajjawati Arora and Shri Sita Ram Arora who were asked by GDA to take possession of property G-187A on 25.12.1997. However, flat was registered in the name of appellant in the year 2003 only after making balance installments. The appellant failed to evidence that the possession of the said property was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
