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TMI Blog2015 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... - ITA No. 413/Hyd/11, 414/Hyd/11, 415/Hyd/11 - - - Dated:- 9-1-2013 - SHRI CHANDRA POOJARI AND SMT. ASHA VIJAYARAGHAVAN, JJ. For the Appellant : Shri A.V. Raghuram For the Respondent : Smt. Vidisha Kalra ORDER Asha Vijayaraghavan (Judicial Member).- These three appeals preferred by the assessees are directed against separate orders of the Commissioner of Income-tax (Appeals)-V, Hyderabad, all dated February 14, 2011 for the assessment year 2007-08. As a common issue is involved, these appeals are clubbed and heard together, for being disposed of with this common order for the sake of convenience. 2. Let us take up for consideration first, the appeal of Shri Vimal Kumar Agarwal, viz., I. T. A. No. 414/Hyd/2011. 3. Briefly the facts of the case are that the assessee filed his return of income for the assessment year 2007-08, on October 29, 2007 admitting a total income of ₹ 23,20,013 from house property, capital gains and other sources. During the course of scrutiny proceedings, the Assessing Officer found that the assessee had received an amount of ₹ 2,45,00,000 as his share of sale proceeds from sale of house property, but, had admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) that the Assessing Officer found that the assessee along with Sri Purushothamdas Agarwal (HUF) and Sri Satish Kumar Agarwal sold a house property bearing No. 6-3-249, Road No. 1, Banjara Hills, Hyderabad vide registered sale deed executed on January 1, 2007. The Assessing Officer held that the property was sold by the assessee on September 3, 2005, since the physical possession was handed over on the said date as established from the sale deed. Consequently, the Assessing Officer held that the capital gains derived by the assessee on the said property, should be assessed in the assessment year 2006-07 and not in the assessment year 2007-08, viz., the year under appeal. The learned authorised repre sentative for the assessee submitted that the possession as per the unregistered sale deed was not given and the actual possession as given on December 11, 2006 and accordingly, the capital gains is to be assessed in the current assessment year, only, viz., 2007-08. He also submitted written submissions, which, as summarised by the Commissioner of Income-tax (Appeals) in paragraph 5.1 read as follows : 'The appellant is an HUF has no sources of income but had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or hold, possess and enjoy the schedule property hereby conveyed and receive all rents, profits, thereto and income therefrom without any let up, hindrance, interruption, claim or demand whatsoever from the vendors herein or any person or persons or any party claiming through them.' (2) The property was sold by M/s. Viceroy Hotels on January 31, 2007 to Smt. Ameena Khaton and M/s. AZ Developers. In this sale deed, Shri Purushothamdas Agarwal, Shri Vimal Kumar Agarwal and Shri Satishkumar Agarwal have also signed as confirming parties. (3) In the agreement, it was clearly mentioned that the vendor, M/s. Viceroy Hotels purchased the property on September 3, 2005 and has been in actual physical possession and has conveyed all rights on the property as the owner till the date of sale to Smt. Ameena Khatoon and M/s. AZ Developers. (4) During the proceedings before the Commissioner of Income- tax (Appeals), the authorised representative of the assessee has taken a stand that he had not given the possession as per the unregistered sale deed and instead gave possession on October 1, 2006. The asses see's authorised representative submitted additional evidence in the form o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration was received by the assessee, through cheques and all the rights in the property were transferred to M/s. Viceroy Hotels. Hence, the assessee has transferred all the rights in the property in the year 2005-06 itself. (6) As for the additional evidence filed by way of telephone bills, water bills, etc., the Commissioner of Income-tax (Appeals) held that they are not of much significance and do not indicate that the assessee was living in the premises. The Commissioner of Income-tax (Appeals) also held that the letter received from the chairman of the Viceroy Hotels stating that the possession of the property was taken in October, 2006 is unreliable, since the said letterhead does not contain the address and telephone or any other details about the Viceroy Hotel. The Commissioner of Income-tax (Appeals) doubted the very authenticity of the said letter. (7) Further, the Commissioner of Income-tax (Appeals) distinguished the decision in Asst. CIT v. Hotel Harbour View [2010] 2 ITR (Trib) 178 (Cochin) relied upon by the authorised representative for the assessee before him, observing that in that case, there was non performance of the contract and accordingly, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. It does not, of itself, create any interest in or charge on such property. 8. Learned counsel for the assessee also invited our attention to page 5 of the sale deed dated January 31, 2007, wherein it has been stated as follows : Whereas the 'confirming parties' have purchased the 'schedule property' through three registered sale deed bearing document Nos.250/94, dated December 15, 1993, 1154 of 1993, dated April 7, 1993 and Doc. No. 1585 of 1993, dated May 18, 1993 and the confirming parties have sold the scheduled property to the vendor under an unregistered sale deed. Since the sale deed executed by the 'confirming parties' in favour of the vendor, they are joined as confirming parties in the said above sale deed. Referring to the above extract from the sale deed, learned counsel for the assessee submitted that the fact that the property was transferred at a later point of time is clearly evident. 9. The learned Departmental representative countered the arguments of learned counsel for the assessee stating that Sri Purushotham Agarwal, HUF and Vimalkumar Agarwal were merely confirming parties and hence, nothing can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not created any charge or encumbrance, third party right or interest etc., over the schedule property. 5. Indemnity : The vendors hereby undertake to indemnify the purchaser in the event of any claim or right or interest over the schedule property by third party/parties or in the event the title of the vendor is found to be defective and undertake to make good the entire loss suffered by the purchaser. 8. The vendors have handed over the original authenticated title documents, link documents along with all other relevant documents, i.e., tax paid receipts, sanction plan, etc. to the purchaser. 12. The above clauses undisputedly confirm the fact that the possession of the property has been handed over to the purchaser on September 3, 2005. The evidences produced by the assessee, such as, filing of telephone bills and ration card etc. are not the conclusive material. The fact remains that the sale deed was executed on September 3, 2005 and consideration was also received in September, 2005. From the clauses of the sale deed dated September 3, 2005, it is clear that the possession was also handed over in the assessment year 2006-07 itself. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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