TMI Blog2022 (5) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, it is not the claim of the assessee that it was a fraudulent transaction. It is also not the claim of the appellant assessee that he had no intention to enter in the transaction. From the Clauses of the Sale deed, it can be inferred that both the vendors and Vendee have full knowledge of all the clauses mentioned in the Sale deed. There is no evidence filed by the AR to prove that the contents of the said registered sale deed are not true or are false. Therefore, it means the possession was handed over to the Purchaser, purchaser had paid entire consideration to the seller and the purchaser became the legal owner of the impugned land on 1/11/2013. Neither the purchaser nor the seller has filed any FIR against the so called villagers who opposed the buyer. The assessee is a legal owner of the property, if there were any encroachments, appellant assessee had not filed any evidence to prove the so-called encroachments, therefore, the said claim of the assessee is unsubstantiated. The purchaser Mustak Saheblal Shaikh had paid the stamp duty and registration charges. Secondly the Appellant after 15 days have purchased the impugned land from Mr. Mustak Saheblal Shaikh by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. PN/CIT(A)-5/ITO Wd.7(2), Pune/217/2016-17 dated 29/09/2017 for the Assessment Year 2014-15. The Assessee has raised following grounds of appeal: 1. The learned Commissioner (Appeals) erred in sustaining the addition of Rs. 51,20,661/- being Long Term Capital Gain from sale of land at village Mahalung even though there was no valid transfer of a capital asset by the assessee company. 2. The learned Commissioner (Appeals) erred in not properly appreciating the peculiar facts of the assessee‟s case while sustaining the addition. 3. The addition of Rs. 51,20,661/- be deleted and the assessee company‟s income, be reduced to that extent. 4. Such other orders be passed as deemed fit and proper. 5. The appellant prays for leave to add to, modify or amend his grounds of appeal and lead evidence. 2. Brief facts of the case are that the appellant assessee is a company. As per the assessment order, assessee company was originally in the business of manufacture and sale of potable liquor, spirit, pharma products etc. The assessee company has suspended these business activities. During the year, assessee has shown income from capital gains and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfil its commitment and warned the Company and its management that i will regard any failure on their part to do so as a breach of contract with resultant consequences. To my utter regret the Company could not resolve the issue to my satisfaction. I was left with no other option than to urge the Company to cancel the sale immediately and refund me my money or otherwise I may be constrained to institute civil and/or criminal proceedings against the Company and its Directors. The Company thereupon acceded to my demand and re-purchased the concerned land from me at the same price of Rs. 63,50,000/- and that document was registered with Sub Registrar Malshiras on 16th November, 2013 at serial No. 4151/2013. 3.1 Therefore, the assessee company submitted before the A.O. that in this case, there is no transfer of the land as per the provisions of Section 54 and 55 of the Transfer of Property Act. The company further submitted that there will not be any capital gain. 3.2 The A.O. in para 5 of the assessment order has given his findings which are as under: 5. I have gone through the assessee submission carefully. In this regard, the Section 2(47) is reproduced as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted, Capital Gains from the sale would be taxable. 4.7 The Appellant has also contended during the course of Appellant proceedings and in the Statement of Facts, filed with the Appeal memo that, it resorted to cancellation of the sale by a registered document dated 16/11/2013. A copy of the said document has been submitted during the course of Appellate proceedings. A perusal of this document clearly shows that it is a second Sale Deed between Mr. Mushtak Saheblal Shaikh (the original purchaser) and Brihan Maharashtra Sugar Syndicate Ltd. registered on 16/11/2013 for Rs. 63,50,000/-. This document also indicates that there was no conditional sale or transfer. Thus, this statement of Cancellation Deed‟ as claimed by the Appellant. Similarly, the Sale Deed between Brihan Maharashtra Sugar Syndicate Ltd. and Mr. Mushtak Saheblal Shaikh was registered on 01/11/2013 for Rs. 64,50,000/- and there was no conditional sale or transfer in that Deed. Thus, the contention of the Appellant falls flat and the Assessing Officer has correctly held that, the Capital Gains accrued to the Appellant on this transaction. As this transaction was not shown in the Return of Income, the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the opinion that the Tribunal fell in legal error in recording the following finding; If we are to ignore a document which is duly registered with the Sub-Registrar, we will be defeating the purpose of the Indian Registration Act of 1908, when an assessee intends to derive certain benefits from a statute, and that too the Indian Registration Act, where the registration of a document is a condition precedent and he cannot ignore the document so * registered, much less can we. Therefore, when the assessee contends that the sale deed executed and registered with the Sub-Registrar should be taken to be a sham and a bogus document and should be ignored we can do no better than condemn his contention, a contention which, if we may say so, is preposterous and 'dishonourable. We will not go by any other consideration but the one that the document before us is a registered document duly registered with the Sub-Registrar, and whatever it says has to be accepted on its face value. We have, therefore, no hesitation in agreeing with the revenue authorities that the registered document is a genuine one and because the said document shows a consideration of Rs, 1,31,400 the sale cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. 6. The ld.DR for the Revenue relied on the orders of the A.O. and the ld.CIT(A). Ld.DR submitted that as per the registered sale deed, vacant and peaceful possession was given to the buyer on 01/11/2013 and the buyer had paid entire amount to the assessee. Ld. DR submitted that no buyer will pay such a big sum without verifying the land and without taking possession. Ld. DR further submitted that the plea taken by the assessee is not verifiable and cannot be relied. Ld. DR specifically stated in any land transaction, the purchaser always carries out due diligence before entering the transaction. In this case, the purchaser has paid the entire amount to the seller, signed the registered sale deed, therefore, it is beyond human probability that the purchaser had not visited the land earlier or had not carried out due diligence before payment. 7. We have considered the rival contentions of both the parties and perused the material placed on record. The assessee has not denied the fact that the it had entered into a registered sale deed dated 01/11/2013. Assessee has not denied receipt of the entire sale consideration. However, assessee claims that no possession was give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould prove fraud, intimidation, illegality or failure of consideration to permit the respondents to lead oral evidence to dispute the sale deed dated 14.9.1970. Therefore, the judgments referred to by Mr. Mehta are of no help to support his arguments. Thus, the findings recorded by the First Appellate Court as affirmed by the High Court are clearly erroneous in law and are, thus, set aside. 30. Accordingly, the appeal is allowed and the judgment Unquote. Therefore, the recitals of the registered sale deed that the vacant and peaceful possession has been handed over to the purchaser have to be taken as the true fact. 7.1. It is not a claim of the assessee that it had not disclosed all the facts about the impugned land to the buyer Mr. Mustak Saheblal Shaikh. Therefore, it is not the claim of the assessee that it was a fraudulent transaction. It is also not the claim of the appellant assessee that he had no intention to enter in the transaction. In the Registered sale deed following things are specifically mentioned: -Vacant and peaceful possession of the property has been given to the purchaser. -The purchaser has become the owner of the said property. -There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d three years after the Sale deeds. It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act,1872 .Affidavits are therefore, not included within the purview of the definition of evidence as has been given in Section 3 of the Indian Evidence Act. Therefore, the said document is mere self-serving statement. 7.5 The assessee had relied on the decision of Hon ble Punjab Haryana high Court in the case of Hiralal Ram Dayal vs CIT 122 ITR461(PH). The Hon ble High Court observed that Tribunal fell into an error in refusing to examine the material put forth by the assessee to prove that the sale was a sham transaction . The said case law is distinguishable on facts. In the case of Hiralal Ram Dayal(supra), it was claimed that the transaction was sham, and the ITAT had erred in refusing to examine the material put forth by the assessee. However, the facts of the case under consideration are different. In the present case, assessee has not claimed that the transaction is sham. In the present case, we have considered all the evidences put forth by the assessee. 7.5.1 All these things establish that there was a val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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