9911796707
TMI Blog2003 (7) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be transfer of the capital asset and the profit earned on such transfer would be a short-term capital gain of the assessee – Thus, we are of the view that the income accrued on account of transfer of the property would be the short-term capital gain – Question is answered in negative - - - - - Dated:- 28-7-2003 - Judge(s) : P. P. NAOLEKAR., I. A. ANSARI. JUDGMENT The judgment of the court was delivered by P.P. NAOLEKAR C.J.-In the financial year 1991-92, the appellant-assessee entered into an agreement on January 2, 1992, to purchase a plot of land measuring 1B, OK, 5L (27.42 centiares) situated in Dag Nos. 711, 712 of KP Patta No. 126 in village Japorigog under Mouza Beltola of Dispur Circle in the district of Kamrup along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee from other sources and is taxable as such. Aggrieved by the order passed by the Assessing Officer, the company-assessee has preferred an appeal before the Commissioner of Income-tax (Appeals), Guwahati. The appellate authority has held that by virtue of the extended definition of transfer under section 2(47) of the Income-tax Act, 1961, the agreement to sell a property being of the nature as provided under section 53A of the Transfer of Property Act, 1882, the same would be held to be a transfer. The appellate authority has recorded a finding that in pursuance of the agreement to sell, the assessee has paid the entire amount mentioned therein and has been placed in possession and was enjoying the benefit of full possession. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irtue of the agreement to sell. The Tribunal has not arrived at a finding nor a decision that the transaction of sale of the property by agreement to transfer does not satisfy the essential ingredients of section 53A of the Transfer of Property Act. There is no finding recorded by the Tribunal that the amount mentioned in the agreement to sell has not been paid by the assessee to its vendor nor is there a finding that the possession has not been delivered in pursuance of the agreement to sell. The Tribunal, however, on the basis of interpretation of the power of attorney and for the reasons recorded by it, has reached the conclusion that the profit earned is not of capital nature and would be an income from other sources. This has given ris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital asset and fall within the purview of transfer under the Income-tax Act, 1961. For application of section 53A of the Transfer of Property Act, the necessary ingredients, so far it relates to the case in hand, would be that (i) there is a contract for transfer of immovable property in writing; (ii) the contract of transfer is for the consideration mentioned in the written contract; (iii) the written contract is signed by the transferor or by some other person on his behalf; (iv) the terms under the contract to transfer the property can be ascertained with reasonable certainty; (v) the transferee in part performance of the contract has taken possession of the property or any part thereof; and (vi) if the transferee is already in possess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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