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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 ..... l gains addition to the tune of ₹ 5,34,34,495/-; back to the CIT(A) for his afresh detailed adjudication keeping in mind not only the relevant facts and circumstances of the transferee s alleged failure in not paying the balance consideration but also the final outcome of the civil proceedings to this effect as per law, within three effective opportunities of hearing. Assessee s appeal allowed for statistical purposes - I.T.A. No. 396/HYD/2014 - - - Dated:- 11-6-2021 - Shri S.S.Godara, Judicial Member And Shri Laxmi Prasad Sahu, Accountant Member For the Assessee : Ms.Lavanya for Shri M.Madhusudan, AR For the Revenue : Shri Sunil Kumar Pandey, DR ORDER PER S.S.GODARA, J.M. : This assessee s appeal for AY.2009-10 arises from the CIT(A)-VII, Hyderabad s order dated 30-12-2013 passed in case No.2715/2011-12/CIT(A)-VII/Hyd, involving proceedings u/s.144 r.w.s.153C of the Income Tax Act, 1961 [in short, the Act ]. Heard both the parties. Case file perused. 2. The assessee has raised the following substantive grounds in the instant appeal: 1. The order of the Ld.Commissioner of Income Tax (Appeals)-VII, Hyderabad in ITA No.2715/2011-12/CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead 'Capital Gains'. 6. That in facts and circumstances of the case and legal background putforth by the appellant before the Ld CIT(A), he ought to have ordered deletion of the impugned addition towards the Capital Gains of ₹ 5,84,34,495/ - holding that such addition is unfair, arbitrary and against all cannons of equity, justice and against the provisions of law. 7. For these grounds and other grounds which may be advanced during the course of hearing of the Appeal, it is prayed that the impugned addition referred to above may kindly be ordered to be deleted in the interests of equity and justice and also to be in conformity with the provisions of Law . 3. Both the learned representatives took us to the CIT(A) s detailed discussion on the foregoing role of assessment of capital gains issue reading as under: 9.0 The arguments and the written submissions filed are considered. The order of the Hon'ble Addnl. Chief Judge, City Civil Court, Hyderabad was pursued. The findings in this Court Order (Order dt 12/10/2012 in I.A No 400 of 2012 and LA No 401 of 2012 in O.S No 96 of 2012) are significant and have a bearing on the appeal filed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner/plaintiff was supposed to hand over link documents which were shown at the time of negotiation. But at the time of preparation of document, the petitioner/plaintiff expressed that said document was misplaced. Hence, Clause XIV(L) was added. Clause XIV(L) is dealing with delivery of possession. Learned counsel for petitioner argued that possession of property is not delivered. But learned counsel for respondents argued that Clause XIV(L) is relating to delivery of document but not possession of property. when total document is read, particularly, in the light of Clause II (2) (1) delivery of possession of property can be primafacie believed. Learned counsel for the petitioner/plaintiff argued that for the figure of ₹ 5,00,000/- (five erores) figure ₹ 50,00,000!- (fifty lakhs) is mentioned and to prove payment of amount, burden lies on the respondent/defendants, therefore, at this prima facie stage, it can be safely taken total sale consideration is not paid and respondents/defendants are not entitled to sell the property or interfere with the possession of the petitioner/plaintiff. 12) Agreement of sale-cum-irrevocable power of attorney document executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation the prime facie case, balance of convenience and irreparable loss are found favouring petitioner. But with regard to possession there are contradictory recitals in the document relied on by the petitioner and there is no clarify with regard to the stands of both sides burden cannot be thrown completely on respondents/defendants and petitioner/plaintiff shall succeed or fail on the strength of merits in his own case. There is long silence on the part of the petitioner/plaintiff. There is no material showing that petitioner/plaintiff is still in possession of the property. On the contrary, registered document executed by first respondent in favour of respondents 3 and 4 on behalf of petitioner and in the capacity of general power of attorney is showing delivery of possession. When all the facts and circumstances are considered, prime facie case for granting injunction restraining interference in response of the petitioner's possession is not found at petitioner failed to prove his exclusion possession over the property. 15) Observations made above in respect of the points framed are limited only to the extent of considering the primafacie case and for the disposal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that primafacie the appellant failed to prove his exclusive possession over the property (para 14 of the order). 11.0 The appellant's plea that the assessment made be annulled is now considered. The asst. order is legally correct and was based on material available in course of search. The rate difference between 5.50 crores and 6 crores that the appellant is making much issue of, is not a flaw at all. In fact, between an agreement rate of 5.50 crore and the actual regd. sale deed rate of ₹ 6 crores, the actual sale deed rate always has to be accepted and considered. The value mentioned in the sale agreement ceded ground to the actual rate mentioned in the regd sale deed. Any Assessing officer would examine further only when the actual-value in the registered sale deed is less than the value in the sale agreement-not otherwise. As regards the claim that the sale was done behind the back of the appellant and he was cheated by the GPA holder, M/s Aashi realtors, the AO was never even aware of such claims since no one represented before him either in person or even in written submissions. Thus there is nothing wrong in the assessment perse to be annulled as subm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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