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TMI Blog2019 (6) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... t to reevaluate the fact and evidence already considered while passing the impugned order on merits. Hence, we do not find any merits or substance in the miscellaneous application filed by the Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee received the consideration through post dated cheques on the date of agreement to sell and also handed over the possession of the land to the purchaser then the transaction of transfer of existing agricultural land completed on 22/11/2012 which is prior to the purchase of the new asset vide sale deed dated 29/11/2012. The Assessing Officer and the ld. CIT(A) has doubted the existence of the agreement to sell dated 22/11/2012, however, we find that the details of consideration as mentioned in the agreement to sell as well as subsequent sale deed dated 28/01/2013 are same. For sake of completeness, we reproduce the details of cheques through which the assessee received the sale consideration as under: Sl. No. Cheque No. Name of the Bank Amount Dated 1. 358891 Vijaya Bank, Vidyadhar Nagar Branch, Jaipur 88,00,000/- 04/01/2013 2. 308537 Syndicate Bank, Seth Colony Branch, Jaipur 9,00,000/- 27/01/2013 3. 349005 Vijaya Bank, Vidyadhar Nagar Branch, Jaipur 80,00,000/- 25/02/2013 4. 349006 Vijaya Bank, Vidyadhar Nagar Branch, Jaipur 80,00,000/- 25/02/2013 5. 349008 Vijaya Bank, Vidyadhar Nagar Branch, Jaipur 57,77,440/- 28/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see that the purchase consideration as well as sale consideration were paid and received respectively through post dated cheques, are found to be correct from the record which can be verified independently being the statement of the assessee's bank account. Though in the first sale deed dated 28/01/2013 the entire facts were not narrated, however, subsequently on 15/2/2013 a correction deed was executed and registered wherein all these details and facts were clearly mentioned regarding the handing over the possession of the land in question at the time of the execution of agreement dated 22/11/2012. Hence, so far as the facts explained by the assessee are concerned, these are established from the documentary evidence which were neither questioned nor found to be bogus. The documents which are registered as sale deeds for purchase and sale of agricultural lands are also otherwise not in dispute and further the details of the receipt and payment of consideration as per the bank account statement of the assessee are also not in dispute. Thus, in these facts as established by the assessee that the sale consideration as well as purchase consideration was paid through post dated cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer and the actual receipt of compensation are not contemporaneous. Until and unless, the assessee received compensation/consideration, the acquisition of new agricultural land is not possible, hence the relevant date is the receipt of compensation or consideration and not the date of execution of document as held by the Hon'ble Allahabad High Court in the case of CIT Vs. Janardhan Dass 299 ITR 210. 6.2 The requirement for availing the benefit of Section 54B is to use the capital gain for purchase of new agricultural land and if the assessee does not receive the sale consideration then the question of purchasing new agricultural land does not arise and the very object of Section 54B of the Act would be defeated. Hence the receipt of compensation and payment of consideration for purchase of new asset are the relevant dates for determining the conditions of Section 54B of the Act are satisfied. In the case in hand, when the assessee has received the compensation prior to the payment of the purchase consideration for acquisition of new agricultural land then the transaction has to be looked into in the overall facts and surrounding circumstances in which the assessee sold existi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed except the obligation to get the property converted for non agricultural use and execution of the sale deed. The intentions of the parties are relevant and must be ascertained from a document as a whole. Where the deed of transfer has been executed though in violation of law prescribing for a previous sanction or subsequent validation by a competent authority and though not registered would still attract the application of doctrine of part performance. In the case in hand since, the agricultural land could not be sold in view of section 42 of the Rajasthan Tenancy Act, therefore, the parties entered into an agreement to sale dated 11.04.2007 and thereafter the lands were converted into non agricultural land and more specific Farm House Land on 03.02.2010 and 05.02.2010 and thereafter the sale deed was executed by the vendors on 13.04.2010. As it is clear from these act and events that it is continuous process of transfer which begins with the agreement to sale dated 11.04.2007, conversion of the land use on 03/05.02.2010 and ultimately execution on sale deed on 13.04.2010. The sale deed dated 13.04.2010 is a performance of obligation under the agreement to sale dated 11.04.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting the land converted to non agricultural use and execution on sale which has reaffirmed the status of the parties to the agreement and the transfer under the agreement instead of altering the same. The Hon'ble Supreme Court in case of Sanjay Lal vs. CIT 365 ITR 389 while considering the question as to whether the date on which agreement for sale was executed could be considered the date on which the property was transfer has held in para 20 to 25 as under:- "20. The question to be considered by this Court is whether the agreement to sell which had been executed on 27th December, 2002 can be considered as a date on which the property i.e. the residential house had been transferred. In normal circumstances by executing an agreement to sell in respect of an immovable property, a right in personam is created in favour of the transferee/vendee. When such a right is created in favour of the vendee, the vendor is restrained from selling the said property to someone else because the vendee, in whose favour the right in personam is created, has a legitimate right to enforce specific performance of the agreement, if the vendor, for some reason is not executing the sale deed. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforestated facts and in view of the definition of the term "transfer", one can come to a conclusion that some right in respect of the capital asset in question had been transferred in favour of the vendee and therefore, some right which the appellants had, in respect of the capital asset in question, had been extinguished because after execution of the agreement to sell it was not open to the appellants to sell the property to someone else in accordance with law. A right in personam had been created in favour of the vendee, in whose favour the agreement to sell had been executed and who had also paid ₹ 15 lakhs by way of earnest money. No doubt, such contractual right can be surrendered or neutralized by the parties through subsequent contract or conduct leading to no transfer of the property to the proposed vendee but that is not the case at hand. 22. In addition to the fact that the term "transfer" has been defined under Section 2(47) of the Act, even if looked at the provisions of Section 54 of the Act which gives relief to a person who has transferred his one residential house and is purchasing another residential house either before one year of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed. 24 Thus, a right in respect of the capital asset, viz. the property in question had been transferred by the appellants in favour of the vendee/transferee on 27th December, 2002. The sale deed could not be executed for the reason that the appellants had been prevented from dealing with the residential house by an order of a competent court, which they could not have violated. 25 In view of the aforestated peculiar facts of the case and looking at the definition of the term 'transfer" as defined under Section 2(47) of the Act, we are of the view that the appellants were entitled to relief under Section 54 of the Act in respect of the long term capital gain which they had earned in pursuance of transfer of their residential property being House No. 267, Sector 9-C, situated in Chandigarh and used for purchase of a new asset/residential house. " ..... X X X X Extracts X X X X X X X X Extracts X X X X
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