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TMI Blog2021 (9) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... l) has erred in considering the fact that transaction of sale of land was never completed and become null and void due to the cheque dishonored, a predetermined condition for execution of sale deed. 4. That on the facts and in the circumstances of the case, the learned Commissioner of Income- tax (Appeal) has further erred in summarily ignoring the contemporary & conclusive evidence filed before him and rejected them without giving any proper reasoning for the same. 5. That on the facts and in the circumstances of the case, the learned Commissioner of Income- tax (Appeal) has erred in ignoring the settled principles of taxing real income as laid down by the Hon' ble Supreme Court in various pronouncements." 3. The assessee has filed e-return of income on 31.08.2015 declaring total income of Rs. 15, 47,110/- which was processed u/ s 143(1) of the Income Tax Act, 1961. Subsequently, the case was selected for scrutiny through CASS and the issue of capital gains has been examined. 4. Background of the transaction: Father of the assessee Sh. Ashok Tyagi has purchased land located at Khasra No. 962, Noor Nagar, Ghaziabad, UP for Rs. 3,18,835/- in joint ownership with one Mrs. Kamle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) against defendants No. 1 to 5, namely (i) Goel Flexible Packaging Pvt. Ltd., (ii) Umesh Goel, (iii) Brijesh Goel, (iv) Sudesh Goel and (v) Shri Krishnan Goel, for recovery of Rs. 8 crores with interest, pleading (a) that the defendants purchased plot measuring 4190 sq. mtrs. having Khasra No.962, situated at Village- Noor Nagar, Loni, Ghaziabad, U. P. for a sum of Rs. 13,15,00,000/- and a Sale Deed was executed between the plaintiff and the defendant No. 2 to this effect on 4 th September, 2013 ; (b) that for payment of sale consideration, the defendants issued post- dated cheques/ demand drafts to the plaintiff; (c) that four cheques, all dated 7 th July, 2014 of Rs. 2 crores each when presented, were returned unpaid owing to insufficiency of funds in the account on which the same were issued; and, (d) that the defendants had failed to pay the said amount inspite of repeated requests. 2. The suit came up first before this Court on 11 th May, 2016 and thereafter on 2nd June, 2016, 25 th July, 2016 and finally vide order dated 5th August, 2016 summons for appearance were ordered to be issued. 3. Vide order dated 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to deliver possession thereof back to the plaintiff. 12. The counsel for the defendants stated that the defendants were so willing. 13. However adverse orders against the plaintiff were deferred yesterday and the matter posted for today. 14. Today, Mr. M. S. Rahman, Advocate has again appeared for the plaintiff and states that he did not know about the Ghaziabad suit and has learnt of it only from the application under Order XII Rule 6 of CPC filed by the defendants and has called the plaintiff to the Court and identifies one person present in the Court as plaintiff. 15. The plaintiff present in Court, on enquiry in vernacular states that on delivery of possession, he is willing to refund Rs. 2 crores to the defendants. 16. I have perused the english translation of the Sale Deed in Hindi language, filed by the plaintiff himself. The same inter alia provides as under: " The actual, complete and ownership possession has been handed over to the Vendee on the land under sale. If the cheque of the above amount will cancel/ reject, then the Sale Letter will be considered automatically cancelled/ rejected. Now it is up to the Vendee to use the land as per his wishes, Sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement automatically void. Recently in S. Sarojini Amma Vs. Velayudhan Pillai Sreekumar (2019) 11 SCC 391 also, in the context of a conditional gift it was held that a conditional gift only becomes complete on compliance of conditions in the deed and when a gift is incomplete, the title remains with the donor and the gift deed might be cancelled. Reference may also be made to Kaliaperumal Vs. Rajagopal (2009) 4 SCC 193 and Surinder Pal Vs. Rainbow Promoters Pvt. Ltd. 2010 SCC On Line P& H 9366. 18. I have enquired from the counsel for the defendants, whether the defendants have dealt with the property in any manner whatsoever to the detriment of the plaintiff and/ or have mortgaged the same or created any third party rights in the same. 19. The counsel for the defendants states that the defendants have not done any such thing. 20. The defendants are bound by the aforesaid statement and which, if found to be erroneous, shall make the defendants l iable for contempt of the Court. 21. The counsel for the defendants also states that the defendants will agree to the declaration as null and void of the Sale Deed before the Ghaziabad Court or before any other forum and shall, in fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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