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TMI Blog2022 (3) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee i.e. 'Kabja Rashid to claim the capital gain in subsequent assessment order does not inspire of confidence, which cannot substitute the evidentiary value of registered instrument. CIT(A) in accepting the plea of assessee, that sale deed was executed on 03.04.2012, is factually incorrect. In fact, the transaction of transfer of immovable property would take effect from the execution of the sale deed - mere registration number, volume number and additional book number and pages number is given to the sale deed for the purpose of identification of sale transaction. The specific registration number was recorded on the registered document on 03.04.2014. So far as, the submission of assessee and observation of CIT(A), with regard to taxing of long term capital gain in the hand of co-owners in subsequent assessment order is concern, we find that observation of ld. CIT(A) and submission the assessee are misplaced. Assessee can claim parity under law only on the basis of legally and sustainable view taken in case of co-owners. We are further view that if some wrong approach was adopted which is not in accordance with mandate of law, is accepted in case of other co-owners, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.Whether on facts and in law, the Hon. CIT(A) was justified in deleting the addition merely on the ground that different approach has been adopted by the Assessing Officer for subsequent AY by accepting version of the assessee ignoring the fact wrong approach in another year does not correct the wrong decision for this year? Moreover, the order passed by the Assessing Officer in subsequent AY is not final as that order is liable to be modified by Revenue as erroneous and prejudicial under provisions of the Act. 6.Whether on facts and in law, the Hon. CIT(A) was correct in holding that only execution of sale agreement entails transfer for purpose of section 45 despite the fact that transfer is to be interpreted in accordance with the provisions section 2(47) of the Act? 7.Whether on facts and in law, the Hon. CIT(A) was justified in deleting the addition merely on basis of non-uniformity and inconsistency despite settled Law that doctrines of estoppels and res judicata do not strictly apply to proceedings under the Income Tax Act, especially where the impugned decisions are perverse and amenable to challenge and substitution by Revenue itself and in view of the Law la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted on 04.04.2012. The assessee also furnished copy of Kabja Rashid dated 04.04.2012. The Assessing Officer took his view that Kabja Rashid is nothing but a cooked up story to avoid long term capital gain in A.Y. 2012-13. 4. The Assessing Officer issued show cause notice and asked the assessee as to why long term capital gain, which is claimed in A.Y. 2013-14 should not be treated as income of assessee for A.Y. 2012-13. The assessee filed his reply dated 10.03.2015 and again on 27.03.2015 and stated at per definition of transactions three conditions must be satisfied. (i) there should be a contract in writing, (ii) transferee has paid consideration or is willing perform his part of contract and (iii) transferee should have taken possession of the property. In case of assessee only condition of payments and writing of contract were fulfilled on 23.03.2012. The reply of assessee was not accepted by the Assessing Officer, the assessing officer held that registered of sale deed was executed on 23.03.2012, the assessee has received full payment of consideration and as per clause at page 15 of the sale deed. It is clearly mentioned that possession of property has been given on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain in A.Y. 2013-14 on the ground that sale deed was duly registered on 03.04.2012. The assessee transferred the possession of land only on 03.04.2012 when possession was handed over. The assessee offered capital gain in A.Y. 2013-14, which has been accepted in A.Y. 2013-14 and taxing the same income in A.Y. 2012-13 would be double taxation of the same income. The copy of assessment order in A.Y. 2013-14was also furnished. The assessee further stated that they have filed an application for rectification of assessment order in A.Y. 2013-14 by filing an application under section 154 of the Act but there was no response from the Assessing Officer. The assessee prayed for consideration the long term capital gain in A.Y. 2013-14. The assessee also stated that co-owners / brothers no such issue of capital gain in A.Y. 2012-13 were raised. During appellate stage, the ld CIT(A) directed the assessee to file copies of Income-tax return, computation of income and assessment orders of co-owners, which were furnished by assessee. 8. The ld. CIT(A) after considering the submission of assessee recorded that assessee sold the land along with his four co-owners and executed the sale deed on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasid , which is nothing but a self-serving document of land. The Kabja rasid cannot be substitute the contents of sale deed dated 23.03.2012. The assessee has offered long term capital gain in subsequent assessment year, though earned in A.Y. 2012-13. The assessee cannot change the taxability by his own choice. The ld. CIT(A) in his order wrongly held that sale deed was executed on 30.04.2012[para 7.2(b)]. The ld. CIT-DR for the revenue further submits that ld. CIT(A) decided the issue on flimsy ground on uniform approach in case of other co-owners. The ld. CIT(A) failed to appreciate the wrong approach is adopted in other cases of co-owner by not bringing the capital gain to tax, do not render the correct decision in case of assessee as wrong. The ld CIT(A) failed to appreciate that the assessment order passed by Assessing Officer in those cases are neither final nor acceptable to the revenue as those orders are amenable to modification by revenue being erroneous and prejudicial to the interest of Revenue. The ld CIT-DR submits that the statement of fact filed before the Tribunal filed along with grounds of appeal may kindly to look into and prayed to set aside the order of ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able property is complete on receipt of consideration and registration of deed of transfer and paid stamp duty chargeable by State Government. Before us, the ld AR for the assessee strongly relied on 'Kabja Rashid dated 04.04.2012. The document dated 03.04.2012 (Kabja Rashid) cannot replace legality and authenticity of registered sale deed dated 23.03.2012. Thus, the document produced by assessee i.e. 'Kabja Rashid to claim the capital gain in subsequent assessment order does not inspire of confidence, which cannot substitute the evidentiary value of registered instrument. 13. We also find that ld. CIT(A) in accepting the plea of assessee, that sale deed was executed on 03.04.2012, is factually incorrect. In fact, the transaction of transfer of immovable property would take effect from the execution of the sale deed. However, mere registration number, volume number and additional book number and pages number is given to the sale deed for the purpose of identification of sale transaction. Thus, the specific registration number was recorded on the registered document on 03.04.2014. So far as, the submission of ld. AR of the assessee and observation of ld. CIT(A), with re ..... 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