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TMI Blog2021 (6) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration of Rs. 5.00 crores, the Ld Commissioner of Income Tax (Appeals) - VII, Hyderaba ought to have held that there was a breach of 'contractual obligation' on the part of the realtor, M/s Aashi Realtors and Mr Sukesh Gupta and thereby the Agreement of Sale referred to by the Ld Assessing Officer ought to have been regarded as VOID IN LAW; 3. Going by the fact that there was no DELIVERY OF POSSESSION of the Property by the Appellant to the Realtor, aforesaid, beyond any iota of dispute which is pending adjudication in a Court of Law, the Ld Commissioner of Income Tax (Appeals) - VII, Hyderabad ought to have noticed that there is no transfer within the meaning of Section 2(47)(v) of the Act read with Section 53A of the Transfer of Property Act, 1882 and this technical ground, he ought to have held that the addition made by the Ld Assessing Officer under the head 'Capital Gains' for the Assessment Year under review, viz., AY 2009-10 is DEVOID OF ANY MERIT AND VOID AB-INITIO; 4. Having held emphatically at para 12.0 of his order under dispute that the whole matter of sale is SUBJUDICE in a Court of Law, the Ld Commissioner of Income Tax (Appeals) - VII, Hydera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the suit scheduled property. (b) The I.A 401 was was filed for restraining the respondents (above named persons) from interfering with the peaceful possession and enjoyment of the petitioner in respect of the suit schedule property. (c) The points of determination set out by the Court in para 6 on 6 of the order were:- "(1) whether the petitioner/plaintiff is entitled for temporary injunction restraining the respondents from alienating the petition/suit schedule premises to any third parties? (2) Whether the petitioner/plaintiff is entitled for temporary injunction restraining the interference of respondents / defendants in respect of the petition/suit schedule property? (3) What is the result of both petitions?" (d) The inconsistencies, the prima facie evidences, the triable issues and the net result of/outcome of the I.A petition is given in the court order from para lion page 9 to para 17 on page 14 is reproduced below for better appreciation. "11) For deciding interlocutory application, prime facie case alone needs examination. Clause II (2) (1) of agreement of salecum-irrevocable power of attorney document dated 21.03.2009, is clearly indicating that physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. It is not the case of the petitioner/plaintiff that power of attorney was cancelled before execution of the sale deed by the first respondent in favour of respondents 3 and 4. Legal notice was got issued by the petitioner on 14.01.2012. As per the recitals in the teoe! notice, transaction between the petitioner and respondents ought to have been completed within 30 days. Further, a close reading of legal notice dated 14-01-2012 testifies that petitioner/plaintiff woke up on receipt of notice from Income Tax Department. petitioner/plaintiff remained silent till January, 2012. When agreement of sale cum irrevocable general power of attorney document was not acted upon by respondent no.1 as per schedule why there was no action by plaintiff is a million dollar worth question left unanswered. Sale deed executed by first respondent in favour of respondents 3 and 4 is a registered document. Constructive notice u/s 3 of Transfer of Property Act can be imputed to the petitioner. 13) What is the effect of recital a to delivery of possession and as to balance sale consideration at Rs. 50,00,000/- are triable issues but they are prima facie running against the petitioner. Lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie case or balance of convenience in favour of the petitioner for granting injunction concerning possession of the suit schedule property, however, to the extent of injunction restraining alienation, this court finds that the respondents can be restrained from further alienating the property in order to preserve status quo and to avoid multiplicity of litigation and also to protect the interest of third party bonafide purchasers. 16) In view of the discussion made above, Point no.1 is decided in favour of the petitioner/plaintiff concluding that petitioner/plaintiff is entitled for temporary injunction restraining the respondents from alienating the petition/suit schedule property to any third parties and Point no.2 is decided against the petitioner/plaintiff concluding that petitioner/plaintiff failed to make out prime facie case, balance of convenience and irreparable loss in respect of interference over the petition/suit schedule property". 17) In the result, I.A. No. 00/2012 is allowed. Temporary injunction is granted restraining the respondents from alienating suit/petition schedule property till the disposal of suit". (e) The appellant had filed a further petition seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue's endeavour all along has been to treat the assessee's general power of attorney "GPA" document dt.21-03-2009 as "transfer" within the meaning of Section 2(47) of the Act giving rise to the capital gains addition of Rs. 5,84,34,495/- The taxpayer, on the other hand, has been all along been claiming that the said power of attorney is an instance of alleged cheating the transferee namely M/s.Aashi Realtors, wherein the latter has paid only Rs. 50 lakhs and therefore, on the balance consideration itself has not been received till date, both the lower authorities have erred in law and on facts in treating it as a valid "transfer" within the meaning of the Act. Learned counsel further invited our attention to the pendency of civil proceedings between the assessee and the vendee (supra). 5. We have given our thoughtful consideration to foregoing rival pleadings. We prima facie notice that the assessee's vendee herein has not paid the full amount of Rs. 5.50 crores since only an amount of Rs. 50 lakhs has been received. There is no material to the contrary in the case records. We make it clear that this is not the Revenue's case that the assessee has in fact received the balan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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