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TMI Blog2025 (3) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. When the appeal was admitted on 28.9.2022, it was held that as against the order was passed under Section 264 of the Act, the statute does not provide for an alternate remedy and, therefore, prima facie, it was recorded that the writ petition was maintainable. 4. Today we have elaborately heard the learned advocates for the parties and carefully considered the materials placed on record. 5. The short issue which falls for consideration is to whether the claim of long term capital gains made by the appellant/assessee was just and whether the assessing officer was right in rejecting the stand taken by the assessee and holding that the date of acquisition of the subject property should be reckoned as 18.3.2008, when the agreement for sale was executed and registered in terms of the Maharashtra Apartment And Ownership Act and not from the date of allotment, namely, 1.8.2006. The PCIT while rejecting the revision petition solely relied upon the decision in the case of Suraj Lamp and Industries Private Limited v. State of Haryana and Another in (2012) 1 SCC 656. The PCIT was of the opinion that the allotment letter was issued by the developer prior to the agreement for purchase a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office unit as agreed with the assessee was fixed at Rs.64,37,000/- with three car parking. The promoter/vendor agreed that the assessee has paid a sum of Rs.3,13,000/- by means of cheque dated 29.7.2006 which was prior to the date of the allotment as part payment for the said office unit. The payment schedule for the balance payment was Rs.50,00,000/- within 15 days of allotment and Rs.11,24,000/- on or before possession is handed over. It is not in dispute that the assessee complied with the payment schedule and proceeded to pay accordingly and honured the condition of payment of Rs.50,00,000/- within 15 days of allotment. The property in question is situated in the State of Maharashtra and in terms of the Apartment And Ownership Act which was enacted by the State the agreement for sale was required to be registered. The assessee entered into the agreement for sale with the developer/vendor on 27.12.2007 and the document was presented for registration and registered on 18.3.2008. After the agreement for sale was executed and registered, the entire sale consideration was paid and at that juncture the assessee intended to transfer the property in favour of a company under the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. 15. In the instant case, Explanation 2 as contained therein would be relevant and applicable. Explanation 2 states that for removal of doubts, it is clarified that "transfer includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily by way of an agreement or otherwise ....". Thus, Explanation 2 in Section 2(47) of the Act gives the widest to possible meaning to the definition of transfer. 16. At this juncture, we need to bear in mind that the definition of transfer as defined under the Transfer of Property Act should not be emerged while considering whether a transaction is a transfer under the provisions of the Income Tax Act. 17. Undoubtedly, on the date of allotment, namely, 1.8.2006 a right has accrued in favour of the appellant/assessee. This is more so because the developer has accepted that the assessee has paid a sum of Rs.3,13,000/- by cheque dated 29.7.2006 which was prior to the allotment order dated 1.8.2006. 18. Therefore, this payment coupled with the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily by way of an agreement or otherwise. 19. Undoubtedly, the letter of allotment and the payment made thereafter has created in favour of the assessee an interest in the asset directly and it was by way of an agreement/or otherwise. 20. At this juncture, it would be beneficial to take note of the decision of the Hon'ble Supreme Court in Saraswati Devi v. Delhi Development Authority and Others in (2013) 3 SCC 571 for the purpose of understanding as to what would the term encumbrance mean. In paragraph 39 of the report the Hon'ble Supreme Court quoted with approval the decision of the Hon'ble Division Bench of the High Court at Madras in M. Ratanchand Chordia v. Kasim Khaleel in AIR 1964 Mad 209. In the said decision the Division Bench considered the word "encumbrances" in regard to a person or an estate denotes a burden which ordinarily consists of debts, obligations and responsibilities. In the sphere of law, it connotes a liability attached to the property arising out of a claim or lien subsisting in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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