TMI Blog2022 (12) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... aken one of the possible views, then the assessment order cannot be considered to be prejudicial to the interests of revenue merely for the reason that the Ld PCIT has got different view on the very same matter. Hence the impugned revision order is liable to be quashed on this ground alone. Thus we are unable to sustain the impugned revision order passed by Ld PCIT - Decided in favour of assessee. - ITA No.787/Mum/2022 - - - Dated:- 27-12-2022 - Shri B.R.Baskaran, Accountant Member And Shri Aby T Varkey, Judicial Member For the Assessee : Shri Gaurav Bansal For the Revenue : Shri Purushottam Tripuri ORDER PER B.R. BASKARAN (A.M): The assessee has filed the appeal challenging the revision order dated 30/03/2022 passed by ld. PCIT-19, Mumbai and it relates to A.Y.2016-17. The assessee is challenging the validity of revision order passed by ld. PCIT. 2. The facts relating to the case are stated in brief. The assessment in the hands of the assessee for the year under consideration was completed by the Assessing Officer u/s.143(3) of the Act on 22/06/2018 accepting income declared by the assessee. The ld. PCIT examined the assessment record and noticed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are not applicable here, as it is not a case of builders flat. In view of the above, if the documents are unregistered it cannot be taken as evidence of any transaction affection such property and thus for the transfer of his mother's share of property as per Section 2(47)(v) of the Income Tax Act it would not be apply unless the property is registered as per Section 53A of the Transfer of Property Act On perusal of the assessment records it is noticed that the assessee has submitted computation of income of his mother, ITR acknowledgment of his mother, however, in the computation of income she has declared income from salary, income from property house property received on rent and income from other sources (bank interest) and she has not declared any income from Capital gain nor she declared any transaction/income related to transfer of property to her son, Prerak Goel. The AO has not verified this assessment proceeding. Accordingly. The Assessing Officer is directed to examine the legal provisions whether unregistered Sale deed can be used as evidence of transfer of property for the purpose of claiming benefit u/s. 54F of the Act, the AO is also directed to verify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e registration of flat is not compulsory for availing deduction u/s 54 of the Act. He further submitted that the seller of property Smt Pushpa Goel has declared long term capital gain in AY 2017-18 on sale of the above said property and also furnished copy of computation of income of Smt Pushpa Goel relating to AY 2017-18. 7. The Ld D.R submitted that the AO has not made proper enquiries with regard to the claim for deduction made u/s 54F of the Act. Accordingly, he submitted that the Ld PCIT was justified in initiating the revision proceedings. He further submitted that the assessee has claimed to have purchased share of his mother in the flat, but he has not got the conveyance deed registered till date. Hence it was a colourable device adopted by the assessee in order to avail deduction u/s 54F of the Act. He submitted that the Ld PCIT has only directed the AO to examine the claim in accordance with law. With regard to the contention that the registration of conveyance deed is not compulsory for the purpose of availing deduction u/s 54F of the Act, the Ld D.R submitted that the circular issued by CBDT was in the context of DDA flats and hence the said circular cannot be applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income-tax Officer is unsustainable in law. The principle which has been laid down in Malabar Industrial Co. Ltd. [2000] 243 ITR 83 (SC) has been followed and explained in a subsequent judgment of the Supreme Court in CIT v. Max India Ltd. [2007] 295 ITR 282. The principles laid down by the courts are that the Learned CIT cannot invoke his powers of revision under section 263 if the Assessing Officer has conducted enquiries and applied his mind and has taken a possible view of the matter. If there was any enquiry and a possible view is taken, it would not give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has a different opinion in the matter. The consideration of the Commissioner as to whether an order is erroneous in so far it is prejudicial to the interests of Revenue must be based on materials on record of the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head Income from house property (hereafter in this section referred to as the original assessment), and the assessee has within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say, . From the above, it is clear that where a new property has been purchased within one year from the date of transfer, them exemption is allowed. The dispute is only in respect of transfer of the old property and there is no dispute in respect of other conditions. According to the assessee, the old property was transferred on 30-04-2004 and the new property was purchased on 25-06-2003, whereas, according to the AO, the new property was purchased on 25-06-2003 but the old property stood transferred only on 27-08-2004 when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract : Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contact or of the part performance thereof. After amendment : 53-A. Part performance.-Where any person contacts 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 ascertain 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which is to be constructed. Transactions of the nature referred to above are not required to be registered under the Registration Act, 1908. Such arrangements confer the privileges of ownership without transfer of title in the building and there are a common mode of acquiring flats particularly in multi-storeyed constructions in big cities. The definition also does not cover cases where possession is allowed 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. New sub-clauses (v) (vi) have been inserted in section 2(47) to prevent avoidance of capital gains liability by recourse to transfer of rights in the manner referred to above. The above clearly shows that there was certain situation where properties were being transferred without registration of transfer instruments and people were escaping tax liabilities on transfer of such properties because the same could not be brought in the definition of transfer particularly in many States of the country properties were being held by various people as leased properties which were allotted by the various Govt. Departments and transfers of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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