9911796707
TMI Blog2019 (7) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... .2019, passed by the Income Tax Appellate Tribunal Madras "A" Bench, Chennai ("the Tribunal"), in I.T.A.No.3083/Chny/2017, for the assessment year 2010-11. 2.The above appeal has been filed raising the following substantial questions of law:- "(i) Whether the Tribunal had right in law in holding that the capital gains arose and is taxable in the Assessment Year 2010-11 when the Assessee has offered capital gains tax on the same transaction in his return of income for Assessment Year 2009-10? (ii) Whether the Tribunal was right in law in holding that since the assessee has not registered the sale agreement as per section 17A of Transfer of Property Act, the sale/transfer took place only on the date of sale deed executed on 27.4.2009 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mrs.V.Pushpa, learned Junior Standing Counsel for the respondent/Revenue. 4.With consent of the learned counsel on either side, this appeal is taken for final disposal at the admission stage itself. 5.We need not labour much to answer the substantial questions of law raised for consideration, as in the connected matter, that is, pertaining to the other co-owners, this Court had an occasion to test the correctness of the order passed by the Tribunal dated 31.01.2017, in T.C.A.Nos.675 and 676 of 2017. In the said cases, identical substantial questions of law were raised at the instance of the Revenue. 6.The sum and substance of the contention raised by the Revenue is that whether, the Tribunal was right in holding that the transfer of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vendee and applied the provisions of Section 2(47)(v) of the Income Tax Act and the transfer is complete in all aspects. 7.The Tribunal noted the findings rendered by the Commissioner of Income Tax (Appeals) in paragraph 32 of its order and held that the observation of the Commissioner of Income Tax (Appeals) that the assessee had complied with the provisions in the financial year 2008-09 and paid capital gains and that there were no long term capital gains taxable in the assessment year 2010-11 to be just and proper. The above finding rendered by the Tribunal is on re-appreciation of the factual position as recorded by the Commissioner of Income Tax (Appeals). In respect of other co-owners, similar orders were passed by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment of the Hon'ble Supreme Court in the case of CIT vs. Balbir Singh Maini reported in [2017] 86 taxmann.com 94. In the said decision, the Hon'ble Supreme Court pointed out that for the purpose of application of Section 53A of the TP Act, the agreement should be registered, if it is entered after 2001, when Section 17A of the TP Act was amended. The Tribunal holds that the assessee has not registered the sale agreement in the instant case and therefore, the sale/transfer took place only on the date of sale deed executed on 27.04.2009, the capital gain is taxable in the assessment year 2010-11. 9.In our considered view, the Tribunal failed to take into consideration sub-Clauses (v) and (vi) of Section 2(47) of the Act read with Expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joint reading of the above provisions will clearly show that any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in Section 53A of the TP Act. Furthermore, Explanation 2 makes it abundantly clear that "transfer" includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterised as be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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