9911796707
Advanced Search 
TMI Blog2013 (8) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... being the value of the 3 grounds of plot, to be assessed as income from profession and to be assessed to capital gains ?" 2. The assessee entered into an agreement with one Chakravarthy and E.Umapathy on 10th October, 1995 in respect of the property situate in Puliyur village, Kodambakkam. The said Chakravarthy was the absolute owner of 3 grounds of land measuring about 7,200 sq.ft. The said Umpathy was the absolute owner of 2 grounds measuring about 4,800 sq.ft in the same property. At the time of registration of the document in favour of the above two persons, the vendor promised to furnish the copy of the proper layout plan to them. However, when the said parties found that there were no proper layout or even a rough sketch, leading to difficulties in identifying the boundaries, the purchasers viz., Chakravarthy and Umapathy approached J.Mahalingam, the assessee herein, seeking his services for getting necessary patta as well as for getting the necessary layout of the properties purchased by them. 3. Incidentally, it is a matter of record that the said J.Mahalingam is a practising Advocate. It is a matter of record that with the object of getting patta and layout, the owners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Projects Ltd., as Purchaser on 28th December 2005. 8. Referring to the Deed of General Power of Attorney dated 21.08.1996, giving the assessee full power to sell three grounds of property, an agreement was executed to transfer the property of an extent of 3 grounds to the purchaser on a sale consideration of Rs.1,50,00,000/- (Rupees One Crore and fifty lakhs only). The said amount was to be paid by the purchaser to the Vendors and Confirming Party (the assessee herein) at Rs.30,00,000/- (Rupees Thirty Lakhs only) in favour of Chakravarthy, Rs.30,00,000/- (Rupees Thirty Lakhs only) in favour of Umapathy and Rs.90,00,000/- (Rupees Ninety Lakhs only) in favour of the assessee as confirming party. The Agreement further pointed out that the Vendors and the Confirming Party agreed to adjust the sum towards the sale consideration and thereby releasing the purchaser from any further payment whatsoever towards the sale consideration. Evidently the sale agreement did not mention about the first agreement between the assessee and the owners of the property viz., Chakravarthy and Umapathy. 9. In the background of these facts, when the assessment was taken up for consideration for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal held that the receipts at the hands of the assessee could only be treated as income available for capital gains. The Income Tax Appellate Tribunal further pointed out that even though the assessee was put in possession of 5 grounds of land, what was offered in the agreement as towards his services was only 3 grounds. The General Power of Attorney executed in favour of the assessee also pointed out that out of 5 grounds, only 2 grounds were to be retained for the benefit of the owners and 3 grounds was given to the assessee. Thus, the Tribunal pointed out that "receipts" should be read in the context of the transfer of 3 grounds "for the services rendered" and not "for the professional services rendered" or "for services rendered as a lawyer". Thus, the Department's contention therein was not accepted on its face value. In this view of the matter, the Revenue's appeal was dismissed. Aggrieved by the same, the present Tax Case Appeal is preferred by the Revenue. 13. Learned Standing counsel appearing for the Revenue submitted that considering the fact that the assessee is a practising lawyer and had received the consideration on the sale of the property and the income rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enjoyment of, any immovable property." 16. Section 53A of the Transfer of Property Act defines "Part performance" in the following manner:- " Where any person contracts to transfer for consideration any immovable 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 where there is an instrument of transfer that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
