TMI Blog2023 (5) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the transaction of gift under consideration is not to be regarded as transfer for the purposes of section 45. As held in the case of Gillanders Arbuthnot and Co [ 1968 (9) TMI 49 - CALCUTTA HIGH COURT] that the provision of section 47 have to be strictly construed which decision has been affirmed by the Hon ble Supreme Court [ 1972 (9) TMI 13 - SUPREME COURT] . Therefore, the impugned transaction of gift is not exigible to capital gains tax. By no stretch of imagination the impugned gift of immovable property can be brought to tax in the hands of the recipient donee Smt. Manju Garg under section 56(2)(vii)(b). Firstly, the provision of section 56(2)(vii)(b) came into existence w.e.f. 01.10.2009 and therefore will apply for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2009-10. 2. As per AIR information, the assessee had sold an immovable property for Rs. 1,72,80,000/- on 19.11.2008 during the financial year 2008-09. The Ld. Assessing Officer ( AO ) sought information under section 133(6) of the Income Tax Act, 1961 (the Act ) by issue of notice to the assessee which was not complied with. In the absence of PAN, it could not be ascertained whether the assessee had filed return for assessment year 2009-10 and declared capital gain from the said transaction. The Ld. AO, therefore, issued notice under section 148 of the Act on 28.3.2016 after obtaining approval of Pr. CIT, Noida under section 151(ii) of the Act. The notice was served upon the assessee but no compliance was made. Subsequent notices a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 26/12/2000 from the Noida Authority whereby the lease subsistence in the name of late Hukum Chand Bansal being the father of the appellant was transferred in favour of the appellant. The appellant also enclosed a copy of indemnity bond issued in favour of the Noida Authority which is undated but was attested by an advocate M/s. R.K. Samson, Advocate on 15/05/2000 for mutation of the subject immovable property in favour of the appellant. Copies of affidavits affirmed by the mother (Smt. Darshan Devi) and two sisters of the appellant (Smt. Manju Garg and Smt. Suman Gupta) stating that they have no objection over mutation of the subject property existing in the name of the deceased father of the appellant in favour of the appellant were also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not applicable to the case of the assessee. The said provision was substituted by the Finance Act, 2010 with retrospective effect from 01.10.2009 and applies in relation to assessment year 2010-11 and subsequent years whereas the impugned transaction of transfer by way of gift took place during the financial year 2008-09 relevant to the assessment year 2009-10. 5.2 The Ld. AR argued that provision of section 50C is not relevant to the assessee s case as it applies to a case where there is under-statement of consideration in acquisition of property. There is no such allegation in the case of the assessee. 5.3 The Ld. AR submitted that plot was allotted by Noida Authority to the father of the assessee on which his father constructed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered; that the transferor/ donor is the brother of the transferee/ donee and that they are closely related and have got love and affection to each other; that in consideration of love and affection, the transferor/ donor has agreed to gift lease hold rights/ ownership rights in respect of the said property in favour of transferee/ donee; that the transferor/ donor has obtained the permission of Noida authority vide their letter No. Noida/AGM/(IND)/2007/9120 dated 19.12.2007 to transfer/ gift the said property in favour of the transferee/donee; that the transferor/ donor has transferred and assigned all his rights, titles and interest in the said property TO HOLD the same to the transferee/ donee by virtue of this transfer/ gift deed; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circular No. 5 dated 03.06.2010 reported in (2010) 324 ITR (st) 293. Secondly, proviso under section 56(2)(vii) says that this clause shall not apply to any property received from any relative. The expression relatives under Explanation (e) to section 56(2)(vii) means brother or sister of the individual . Since the impugned transaction of gift of property is between brother and sister it falls outside the ambit of the provision of section 56(2)(vii)(b) of the Act. Therefore, the question of taxability of the impugned gift in the hands of the recipient donee Smt. Manju Garg does not arise at all. 7.3 As stated earlier, invocation of section 50C to the case of the assessee is irrelevant as the said provision applies where there is unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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