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TMI Blog2021 (1) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2016 on the following substantial questions of law: "Whether on facts and circumstances, the Tribunal was right in holding that there was no transfer of the property by the assessee and as such no capital gains arise even when the ingredients of Section 2(47) of the Income Tax Act, 1961, are clearly satisfied in the case of assessee?" 2. Facts leading to filing of this appeal briefly stated are that a search was conducted under Section 132 of the Act in the premises of one Prakash Shetty, partner of M/s. Gold Finch Hotels Group and others at Bengaluru. During the course of search, certain incriminating material were found and it was also found that the assessee had sold certain properties and had not paid capital gains. Thereupon, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer and therefore, provisions of Section 2(47) of the Act cannot be invoked to the fact situation of the case. In the aforesaid factual background, the revenue has filed this appeal. 4. Learned counsel for the revenue submits that as per Section 2(47) of the Act, the expression 'transfer' includes extinguishmet of the rights. It is also submitted that Section 2(47)(ii) of the Act stipulates "any transaction involving allowing of the possession of any immovable property to be taken or retained in part performance of the contract of the nature referred to Section 53A of the Transfer of Property Act and further Section 2(47)(v) read with explanation (2) stipulates transfer which includes part performance. It is further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the property is one of the essential ingredients of transfer under Section 2(47) of the Act. It is further submitted that the assessee has neither received the balance consideration of Rs. 5,01,37,720/- nor has handed over the possession of the property. Therefore, the transaction in question has rightly been treated to be not a transfer under Section 2(47) of the Act. It is also urged that the property is still recorded in the name of the assessee in the revenue records and a litigation is pending between the assessee and the prospective purchaser in an appeal namely RFA No.1758/2016 c/w RFA No.1610/2016 in which an interim order has been passed restraining the parties not to alter the nature of the property. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of reference: "(k) to submit applications, affidavits, statements, returns to the Government of Karnataka and/or the Authorities under any state or central stature, to obtain necessary clearance, exemption, sanctions and permissions required under the Act. (l) to enter into agreements for sale with regard to the Schedule property or any portions/shares thereof or enter into any kind of agreement/s on such terms as my Attorney deems fit and to get the Agreement/s registered as well to cancel the said registration; (m) to transfer and convey by way of sale, the Schedule property or any portions. Shares thereof and execute necessary deeds of sale/conveyance in favour of the Attorney himself and any intending purchases/transferee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay such dues on my behalf as may be necessary for the purposes of obtaining such clearance certificate/s from the concerned authority. (r) to apply for and obtain permission/no objection certificate under any of the provisions of the income Tax Act, 1961 and to appear before, file objection statements etc., to the Competent Authority or Appropriate Authority as the case may be under the provisions for obtaining the permission for the transfer of the Schedule property or any portion or portions thereof. (s) to apply for and obtain transfer and registration of Katha in regard to the Schedule Property or any portion/s thereof to the names of the Purchasers of the Schedule property or portions thereof. (t) to apply for and obtain bifurcat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to delegate all or any of the aforementioned powers granted to any other person and to cancel/revoke such delegated powers to others person." 8. Thus, from perusal of relevant clauses of the Power of Attorney which was executed on the same day, it is evident that all rights in the property including the possession constructively infact has been handed over by the assessee to the purchaser. Therefore, we have no hesitation in holding that the aforesaid transaction is the same within the meaning of Section 2(47) of the Act and the Assessing Officer as well as the Commissioner of Income Tax (Appeals) has rightly treated the same to be a transaction of sale. However, the Tribunal, without taking into account the incriminating material on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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