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TMI Blog2020 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee. It is only the amount thus arrived at, after such deductions under s. 48, would be the income chargeable under the heading capital gains. It is not necessary that in all such cases there should have been a lis between the parties and in such is the right to specific performance has to be given up. The CIT(A), in our view, fell into an error in holding that the Assessee did not file a suit for specific performance and therefore cannot claim the benefit of the ratio laid down by the Hon ble Karnataka High Court in the case of H.Anil Kumar [ 2011 (1) TMI 1159 - KARNATAKA HIGH COURT ] In the present case, there was no delivery of possession in part performance of the agreement for sale dated 09-02-2005 and therefore, there is no question of the agreement dated 09-02-2-005 being regarded as a document requiring compulsory registration. Therefore, the decision in the case of CIT Vs Balbir Singh Maini [ 2017 (10) TMI 323 - SUPREME COURT ] is not applicable to the facts of the present case. For the reasons given above, we are of the view that the sum in question is chargeable to tax under the head capital gains . We are of the view that income from relinquishing rights un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o obtain conveyance of the property from the owner. The preamble further recites that the conforming party nominated the purchaser to purchase the property and that out of the sale consideration of ₹ 1200/- agreed between the parties as sale consideration, a sum of ₹ 500/- per sq.ft was to be paid as sale consideration to the vendor i.e Shri Channakeshava and ₹ 700/- was to be paid to the Assessee who was a confirming party to the sale deed. The relevant recital in the preamble in the sale deed is as follows; And whereas, the confirming party being entitled to have the sale deed executed in respect of schedule property by the vendor in his favour or in favour of any of his nominee/s, has called upon the vendor to execute and register the sale deed in respect of the schedule property in favour of the purchaser herein for a total sale consideration calculated at ₹ 1200/- sq.ft from out of which the vendor would be entitled to receive a sum of ₹ 500/- sq.ft as sale consideration and the confirming party is required o be paid a sum of ₹ 700/- sq.ft by the purchaser as instructed by the vendor himself to defray the expenses so far incurred by the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of advance paid under the agreement dated 09-05-2005. According to the AO the Assessee did not possess any right over the property and there is no question of relinquishing or surrendering of such right and receipt of ₹ 48,300/- under the sale deed had to be taken under the head income from other sources . Consequently deduction U/s.54F of the Act was also denied to the Assessee. 6. Aggrieved by the order of AO, the Assessee filed appeal before the ld. CIT(A). Before the ld. CIT(A) Assessee had relied on the decision of the Hon ble Karnataka High Court in the case of CIT Vs H Anil Kumar (2011) 242 CTR 537 (Kar.). In the aforesaid decision, the Assessee received compensation for giving up his right to specific performance of an agreement to sell. The question before the Court was whether the sum received was assessable under the head long term capital gains . On appeal by the Assessee, the Hon ble Karnataka High Court held that the word capital asset means property of any kind held by the assessee which does not necessarily be confined to an immovable property. Similarly, when the word transfer in relation to a capital asset though includes sale, exchange or relinquishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. The ld counsel for the Asessee apart from relying on the decision of the Hon ble Karnataka High Court in the case of H Anil Kumar (supra) also placed reliance on the decision of the Hon ble Bombay High Court in the case of CIT Vs Vijay Flexible Containers 186 ITR 693(Bom.) and the decision of the Bombay High Court in the case of CIT Vs Tata Services Ltd., 122 ITR 594. The ld. counsel also placed reliance on the decision of the Hon ble Kolkata Bench of the ITAT in the case of Gautam Jhunjhunwala Vs ITO in ITA No.1356/Kol/2017 for assessment year 2012-13 vide order dated 07-09-2018, reliance was also placed on the decision of the Hon ble ITAT Ahmedabad Bench B Bench in the case of Smt. Sapnaben Dipakbhai Patel Vs ITO in ITA No.2414/Ahd/2013 for assessment year 2010-11 by an order dated 13-01-2016. In all these decisions the proposition laid down is similar to the decision of Hon ble Karnataka High Court in the case of H.Anil Kumar (supra). 9. The ld. AR submitted that the agreement between the Assessee and Shri Chandrakeshava dated 09-02-2005 was an unregistered agreement. It was submitted by him that u/s 17(1)(b) of the Registration Act, 1908 agreement for sale requires compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is between the parties and in such is the right to specific performance has to be given up. The CIT(A), in our view, fell into an error in holding that the Assessee did not file a suit for specific performance and therefore cannot claim the benefit of the ratio laid down by the Hon ble Karnataka High Court in the case of H.Anil Kumar (supra). 11. With regard to the submission of the ld.DR relying on the provisions of sec.17(1A) of the Registration Act, 1908, the relevant provisions which read as under; 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864 or the Indian Registration Act, 1866, the Indian Registration Act, 1871 or the Indian Registration Act, 1877, or this act or came or comes into force namely:- a) instruments of gift of immovable property; b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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