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TMI Blog2015 (5) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer in computing and taxing the LTCG of Rs. 85,08,270/- in the relevant year without appreciating that the possession of the property was not handed over due to litigation amongst the co-owner and ultimately the transaction was not materialised, therefore transfer had not taken place in the relevant year n/s. 2(47) of the Act. 4. The Id. ClT(A) failed to appreciate that due to right of pre-emption purchase available with co-owners the assessee could not have sold/transferred the property to third party, more so when the application in the final decree of CS 543 of 1989 was pending in court for partition by metes and bounds, therefore there could not be any transfer of undivided share. III. Valuation: 5. The learned CIT(A) erred in accepting the valuation report dated 30-01-2012 valuing the assessee's 1/24th share at Rs. 1,67,000/- as on 1-4-1981 for the purpose of computing LTCG without providing adequate and proper opportunity of hearing. 6. The Id. CIT(A) failed to appreciate that reference to Asst. Valuation Officer (AVO) for valuation a property beyond Rs. 10 lacs is bad in law, the matter ought to have been referred to DVO, therefore the reference was bad in law. 7. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal gain in the hands of the assessee in view of the provisions of section 53A of the Transfer of Property Act, 1882 and also in view of clause (v) of section 2(47) of the Act. In reply, the assessee explained that the provisions of section 2(47)(v) of the Act are applicable in case of the transfer of immovable property which includes giving possession of immovable property under part performance. However, it was explained by the assessee that the possession of the property could not be handed over to the transferee. Reference was made to para 4 of the show-cause notice issued by the Assessing Officer, under which the court order dated 18.02.2008 is referred to. It has been ordered that Shri Sanjay Dattatray Kakade who was purchaser of the said property was restrained from taking the possession of the suit property without adopting due process of law, till disposal of the suit. The Assessing Officer rejected the explanation of the assessee in view of the fact that assessee had executed an irrevocable Power of Attorney in favour of the purchaser which as per the Assessing Officer established that the "transfer was definite and the possession is as good as handed over to the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areholders including the assessee who had 1/24th share in the property. The property was decreed on 07.06.1994 following an out of court settlement in which distinctive share in the property of each of the family members was determined. Compromise decree is reproduced by the CIT(A) under para 7.1 at pages 29 to 32 of the appellate order. The CIT(A) referred to the decree order of Civil Judge dated 18.02.2008 vide Special Civil Suit No.503/89 filed by some of the family members against the other family members including the assessee and the purchaser, Shri Sanjay Dattaraya Kakade. As per the said decree and as noted by the CIT(A) though the share in terms of the ratio/percentage of each family members were defined, there was no physical demarcation of the property by metes and bounds. It was also noted by the CIT(A) that the Civil Judge held that the members of joint family were entitled to sell their undivided share to third person subject to right of presumption i.e. the first offer having been given to the family members to purchase the same. It was further decreed that the third party had no right to step into the shoes of the members who sold his undivided share and enjoy the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per which respective undivided shares in the suit property were determined, including that of the appellant. The only issue that remain is that the purchaser is restrained by virtue of a court order dated 18.2.2008 from taking possession of the property without adopting due process of law. It is to be noted that the court has not cancelled the agreement which is the issue of the present appeal. The court has merely directed that the purchaser Shri Sanjay Kakade should await the final decree application pending in respect of CS 543 of 1989 for partition by metes and bounds and to thereafter obtain possession of the undivided share sold to him. Thus a reading of the Civil Judge's order in CS No. 613/2007 dated 18.2.2008 shows that during such time that the properties partition by metes and bounds the purchaser is not entitled to disturb the joint possession of other members who are occupying the property." 8. The CIT(A) concluded by holding as under :- "7.11. The decision of the Civil Judge, Pune dated 18.2.2008 does not amount to cancellation of the sale deed executed by the appellant. It has only postponed the factum of actual handing over of physical possession of the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted at the time of hearing that the proceedings in the civil court are yet continuing. To support the proceedings in the civil court, the following documents were annexed in the form of Paper Book:- 1. Copy of Affidavit dated 07.02.2013 by Plaintiff in Special Civil Suit No.613/2007 along with list of Documents; 2. Copy of Extract of Property Register card of Suit Property dated 15.07.2006 along with English translation; 3. Copy of Will executed by Mr. Balaji Bhavansa Walvekar dated 27.09.1996 along with English transaction; 4. Copy of Will executed by Smt. Chandrabala Balaji Walvekar dated 02.09.1996 along with English translation; 5. Copy of Decree in Special Civil Suit No.503/1989 dated 16.05.1994 along with English translation; 6. Copy of letter issued by some of the Plaintiffs and Defendant to the Plaintiff No.1, dated 06.05.2005 along with English translation; 7. Copy of Notice published by Plaintiff in daily Sakal dated 29.09.2005 along with English translation; 8. Copies of correspondence i.e. Notices issued by Advocate for Defendant Nos.1, 4, 7 and another to Plaintiff Nos.1 and 2 dated 28.10.2005 and interim reply to Notice/s dated 28.10.2005 issued by the Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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