9911796707
TMI Blog2023 (8) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... the transfer is by the agreement holder and not by the appellant. 4. The learned First Appellate Authority failed to appreciate the fact that the appellant had already transferred her property vide doc.dt.04.02.2008. 5. Without prejudice to the above. The learned Commissioner of Income Tax (Appeals) did not adjudicate the Ground (3)(a) and (b) in regard to the consideration and indexed cost of acquisition. 6. The appellant reserves her right to add, amend, delete or substitute any ground or grounds during the course of hearing." 2. At the outset the learned AR for the assessee submitted that the assessee filed an application for accepting the petition for admission of additional evidence/documents wherein it has submitted as under: "In the above case, before the lower authorities the appellant claimed that her share along with other owners in the property in question was sold as per registered agreement of sale doc no 1331/08 executed on 04/02/2008 and thus the transfer was completed in the assessment year 2008-09 and not in A.Y 2009-10 as assessed by the assessing officer. In support of this claim the assessee now wishes to file the confirmation letter from the purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the present letter of the assessee cannot be accepted. 6. We have perused the material available on record. For the purpose of admitting any additional documents after a period of 12 years, it is necessary to substantiate that the assessee was prevented by any reasonable cause from filing the above documents before the Tribunal. The assessee was having adequate opportunities before the Assessing Officer to file and demonstrate that the possession of the property was taken on 4.2.2008 and not on 11.12.2008. However, the assessee failed to make out a case that the assessee was unable to produce the said document at the time of the assessement proceedings/appellate proceedings. In the present case, the Assessing Officer had passed the assessment order on 30.12.2016 after granting number of opportunities to the assessee. The assessee in fact has filed various documents at the time of assessement proceedings. However, the assessee failed to prove based on the said document that the possession was given on 4.2.2008. Furthermore, the assessee was having opportunities to prove her case before the appellate commissioner, however despite adequate opportunities were granted to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 through which he submitted that the assessee in fact has parted with the possession by the registered agreement to the agreement holder/developer. It was the contention of the learned AR that after receiving 25% of the estimated sale consideration, the remaining sale consideration was required to be paid within a period of 90 days from the date of agreement and the assessee was left with no right to specifically enforce the agreement, therefore, save and accept to claim remaining amount along with interest. It was submitted that the sale deed dated 11.12.2008 is nothing but continuation of the original agreement dated 4.2.2008 which is clear from the various conditions mentioned in the sale deed dated 11.12.2008 and for that purpose he drew the attention of various clauses of the sale deed. The learned AR submitted that once the possession has been handed over by the assessee to the third party, then for all the purposes, the transfer within the meaning of section 2(47) has taken place on 4.2.2008 and hence, the capital gain, if any, would be arise on the date of the execution of the said agreement and not at the time of sale of agreement dated 11.12.2008. He also relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.13 31 A - Total land Ac 5.15 gts 32 B - share of owners 10 to 17 (B) and agreement holder (C) in built up area 33 C - share of developer (D) in built up area 2 52 to 60 Supplementary agreement dated 5.5.2008 2.1 58 Clause 1 - Interest free refundable deposit of Rs. 3,48,75,000/- to owner 10 to 17 (B) 3 61 to 90 Sale deed dt.11.12.2008 a) Owner 1 to 11 (A) Vendors b) agreement holder (C) c) Developer (D) d) Asian Theknes Projects (P) Ltd - Purchaser (E) 3.1 64 Agreement holder (C) nominated purchaser (E) for the purpose of execution of sale deed 3.2 64 Clause - 1 - in consideration of amount received from Agreement holder.... Agreement holder discharged 3.3 65 Schedule balance payment - Total Rs. 38,92,05,000 only Clause - 2 (a) Vendors and agreement holder induct purchaser into joint possession b) Purchaser shall be entitled to all benefits of agreement holder as per terms of agreement Without any further reference to vendors/and agreement holder c) Developer agrees for the change. 11. Per contra, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorrect. The document executed on 4-2-2008 is merely a Memorandum of Agreement to develop the property entered between 17 parties including the assessee referred as owners and agreement holder namely Walden Properties Pvt. Ltd. and developer namely Welbilt Properties Ltd, and according to this tri-party agreement dated 4-2-2008 only right to construction was sought to be given to the Developer and fixing entitlements of share of the built up area of the property, fixing the date of payment of consideration to the vendors including the assessee, subject to fulfillment of several other conditions in future. The opening words of the document dated 4.2.2008 starts as under: "This Memorandum of Cum-General Power of Attorney Sale-cum- Development is made Agreement and Fourth day of executed on this February, 2008, at Hyderabad, by and between-" 5.1 According to this agreement dated 4-2-2008, assessee has received Rs. 74,68,750/- on 4-2-2008 as 1st installment being appellant's share of 25% of the estimated sale consideration value of Rs. 10,07,50,000/- from agreement holder and balance 75% of the value of appellant's share of sale consideration amounting to deducting Rs. 2,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Final Sale Deed dated 11-12- 2008. The total number of owners mentioned in the sale deed dated 11-12-2008 was 11 including assessee." 13. From a perusal of the above, it is abundantly clear that in the sale deed 11.12.2008 that for the first time the possession was handed over by the assessee to the purchaser namely Asara Themes Projects (P) Ltd. For the above said purposes, we may reproduce para 2 of the sale deed at page 12 of the CIT (A) order which mentioned as under: "2. The vendors and the Agreement Holder have today inducted the Purchaser herein into joint possession of the Schedule Land and the Purchaser shall be entitled to enjoy the Schedule Land as per the terms of the Agreement and shall be entitled to deal with the Developer as absolute owner in respect of the Schedule Land and receive all the benefits of the Agreement as per the terms of the Agreement without any further reference to the Vendors and the Agreement Holder. The Developer hereby acknowledges and agrees for the said change in favour of the purchaser". 14. Section 54 of the Transfer of Property which defines the sale as under: "Section 54 in The Transfer of Property Act, 1882: 54. "Sale" defined.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be the signatory of the sale deed, therefore, the Developer cannot issue a document contrary to the contents of the registered document to which he is a signatory. Undoubtedly, the possession has been given only on 11.12.2008 and therefore, it was taken place only on 11.12.2008 and hence we do not find any merit in the appeal of the assessee. Accordingly, the same is dismissed. 16 In the result, appeal filed by the assessee is dismissed. ITA No.8/Hyd/2021 - Smt. Yashoda Gundavarapu -A.Y 2009-10 17. In the above appeal, the assessees raised similar issues as in ITA No.538/Hyd/2018 and we have already decided the issue against the assessee. Following similar reasonings, these two appeals are also dismissed. ITA No.14/Hyd/2019 Shri M. Hanmanth Reddy, - A.Y 2009-10 18. It is pertinent to mention here that none appeared on behalf of the assessee in this appeal despite number of opportunities granted. Since the grounds of appeal and the facts of the instant appeal are identical to the grounds raised by the assessees in the above two appeals, therefore, the findings given in the above appeals will apply mutatis mutandis. Accordingly following similar reasonings appeal in Ita No.14/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
