TMI Blog2023 (1) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer of Properties Act, it is essential that the possession should combine with the part/ full payment also, which are not the facts of the present case. As the appellant has acquired 'the 1st floor of the immovable property situated at Section 15A, Faridabad' on 12.12.2012. It is, therefore, held that the AO was justified in treating the same as short-term capital asset and denying the benefit of deduction - Decided in favour of revenue. - ITA No. 2390/DEL/2019 - - - Dated:- 13-1-2023 - Shri Kul Bharat, Judicial Member For the Assessee : None For the Department : Sh. S.L. Anuragi, Sr. DR ORDER PER KUL BHARAT, JM: This appeal, by the assessee, is directed against the order of the learned Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011. Therefore, the owners have agreed to transfer/sell the first floor of the property to Mrs. Amulya Madan on 26/05/2011 and contractor is responsible only for the construction as per agreement dated 26/05/2011. The copy of agreement dated 26/05/2011 was also submitted with the hon AO at the time of assessment proceedings and no queries were raised by the hon AO at that time. Also, the agreement has also not been considered by him while disallowing the deduction claimed by the assessee u/s 54 of the Income Tax Act,1961, which is bad-in-lavv anc unjustified. Your honor, hon AO has not considered the agreement dated 26/05/2011 which was made between the assessee and assessee s mother 8. mother s sister which establisnec a right in per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53A. Part performance.-Where any person contracts to transfer for consideration any immoveable 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 2[*** j where there is an instrument of transfer, that the transfer has not been completed in the manner presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. Notices of hearing sent to the assessee at the address furnished in form no. 36 have been returned unserved with the postal remark unclaimed . Therefore, the appeal was taken up for hearing in the absence of the assessee and is being decided after hearing the learned DR and on the basis of material available on record. 3. Facts giving rise to the present appeal are that in this case the assessee filed her return of income declaring total income of Rs. 2,65,080/- on 11.08.2015. Thereafter, the case was taken up for scrutiny assessment and the Assessing Officer noticed that the assessee ah computed long term capital gains on sale of property i.e. first floor, plot no. 215, Sector 15A, Faridabad for sale consideration of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of newly constructed house on 27.08.2012 and a Conveyance Deed was executed in respect of 1st Floor of the new house in favour of the appellant on 12.12.2012. Therefore, from these facts, it is evident that the appellant has entered into an agreement with the above persons to get the 1st Floor out of the newly built up property against consideration of Rs.36,21,000/-. For this purpose, after carrying out necessary construction, 'the property in reference' (1st Floor) came into existence only after the Occupancy Certificate has been obtained. Before this, 'the first floor' was never in existence. Provision of Section 2(47) of the Act read with Section 53A of the Transfer of Properties Act, 1882, are not applicable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an agreement with the above persons to get the 1st Floor (out of the newly built up property) against consideration of Rs.36,21,000/-. For this purpose, after carrying out necessary construction, 'the property in reference' (1st Floor) came into existence only after the Occupancy Certificate has been obtained. Before this, 'the first floor' was never in existence. Provision of Section 2(47) of the Act read with Section 53A of the Transfer of Properties Act, 1882, are not applicable to the facts of the present case as the appellant never obtained the possession of the 1st Floor on 26.05.2011 from which capital gain has accrued. Moreover, in order to comply with the provision of Section 53A of the Transfer of Properties Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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