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TMI Blog2024 (11) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. That on the facts and circumstances of case and in law, the orders passed by the Ld. CIT(A) and the Ld. AO are unsustainable and bad in law and hence, the same may kindly be struck down. 3. That on the facts and circumstances of case and in law, the Ld. CIT(A) erred in confirming the action of the Ld. AO in charging interest under section 234A and 234B of the Act." 3. Apart from this, assessee has raised following additional grounds of appeal:- "1. That on facts and circumstances of the case and in law, the Ld. CIT(A) erred in passing the order under section 250 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') without considering the stamp duty value as on date of agreement as per first proviso to section 56(2)(x) of the Act on the alleged ground that the agreement to sell is not registered without appreciating the fact that there is no mandate under the first proviso to section 56(2)(x) of the Act to register the agreement fixing the amount of consideration for transfer of immovable property. 2. That the appellant craves leave to add to and/or amend, alter, modify or rescind the grounds hereinabove before or at the time of hearing of appeal." 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression "enabling the enjoyment of" takes color from the earlier expression "transferring", so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof. 1 The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact." 6. The ld. Counsel for the assessee has submitted that the transfer of property u/s 2(47) of the Act was complete on the date of execution of the agreement and therefore, the addition, if any, was to be made u/s 56(2)(x) of the Act, that could have been made by the AO into the income of the assessee for A.Y. 2017-18 and not in the A.Y. 2018-19. 7. We have considered the above submission of the ld. Counsel for the assessee and gone through the documents and the copy of the agreement which has been placed at page no. 1-4 of the Paper Book. We have gone through the said agreement and perusal of the said agreement would reveal that it is mere an agreement to sale and in our view cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area 14 decimals, Total sold area 169 Decimals Along with factory Tin Shed measuring an area of 28216 Sq. f and Plant & Machinery fixed in the factory premises. IN THE WITNESS WHEREOF BOTH the parties put their signature on 30.12.2016. Sd/- Signature of First Party 8. Perusal of the aforesaid agreement would reveal that it is not a transfer deed. In the heading of the agreement, the words mentioned are 'Agreement for sale'. Further, in clause 1 of the agreement, it has been written that the second party will pay Rs.86 lacs, as full and final payment for sale of the property, which shows that no money was transferred at the time of execution of agreement. Though the sale consideration was to be paid on the same date i.e. on 30th December, 2016, however, Clause 3 of the agreement shows that the first party will be bound to execute the sale deed within two years of receipt of entire sale consideration, which shows that the transfer was dependent upon the execution of the sale deed. Though, in clause 4 of the agreement, it has been written that the first party on receipt of sale consideration, will deliver the possession of the premisses of the said property to second party, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So far as reliance of the ld. Counsel for the assessee on the decision of Hon'ble Supreme Court in the case of 'Balbir Singh Maini and Ors.' (supra), is concerned, we note that even the said decision of the Hon'ble Supreme Court is not applicable to the facts of the case in hand. The Hon'ble Supreme Court in the said case, while considering the provisions of Section 2(47)(vi) of the Act, has observed that the idea is to bring within the tax net a de facto transfer of any immovable property, where though title may not be transferred in law, there is, in substance, a transfer of title, in fact. However, in the case in hand, as observed above, there is no transfer of title in this case on mere execution of the agreement. Moreover, the object & purpose of the said provision, as held by the Hon'ble Supreme Court also, is to bring to the tax net the capital gains on de facto transfer, and that an assessee may not defer the payment of taxes pleading that the transfer deed is not registered. However, the said provision cannot be allowed to be misused by a defaulting assessee, who himself concealed the execution of unregistered agreement in the year in which it was executed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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