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TMI Blog2022 (3) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... oregoing discussion, it is clear that the argument made by the assessee about his having no interest in the property in question transferred, has no merit and is hereby rejected. This contention is, ergo, repelled. When the transfer of the property in question took place? - Necessarily and as a sequitur , it follows that the mandate of section 17 of the Registration Act requiring the registration as a pre-condition for transfer, after the 2001 amendment, applies to all the clauses of section 2(47) dealing with the immovable property. Execution of an unregistered sale deed is no more treated as `transfer unless the sale deed is registered in the same manner, as the position has become after the 2001 amendments qua the transaction of part performance of contract as per section 53A of the TPA covered under section 2(47)(v) of the Act. When the facts as prevailing in the extant case are viewed in the light of the above legal position, it becomes ostensible that the transfer of the property in question took place only on the execution of the registered sale deed in 2010 relevant to the assessment year under consideration and not in the year 2001 when the unregistered Agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of capital gains. Despite the specific request of the assessee, the AO did not make any such reference to the DVO and proceeded to compute capital gain on the basis of the stamp value only. It would be in the fitness of things if the impugned order is set-aside and the matter is restored to the file of AO for re-deciding the issue afresh as per law in terms of discussion made herein above. Needless to say, the assessee will be allowed a reasonable opportunity of hearing. - ITA No.669/PUN/2017 - - - Dated:- 16-3-2022 - Shri R.S. Syal, Vice President For the Appellant : Shri Shrenik R. Gandhi For the Respondent : Shri M.G. Jasnani ORDER PER R.S.SYAL, VP : This appeal by the assessee is directed against the order passed by the CIT(A)-2, Pune on 08-08-2016 in relation to the assessment year 2011-12. 2. The assessee is aggrieved by the confirmation of addition of ₹ 25,69,200/- on account of capital gain on transfer of land. 3. Tersely stated, the facts of the case are that an immovable property situated at Survey No.122/1, Kedgaon, Ahmednagar (hereinafter called `the property in question ) was sold through registered sale deed on 07-12-2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty in question hence, no capital gain was chargeable in his hands, did not find favour with the AO. The AO observed that the stamp value of the property in question was ₹ 1,64,01,000/-. As the transfer took place on the execution of registered Sale Deed on 07-12-2010, the AO computed capital gain by taking stamp value as the full value of consideration as per section 50C of the Act at ₹ 1.64 crore and determined the amount of long term capital gain at ₹ 1.28 crore. The assessee s 1/5th share was computed at ₹ 25,69,200/-. No relief was allowed in the first appeal. Aggrieved thereby, the assessee has come up in appeal before the Tribunal. 4. I have heard both the sides and gone through the relevant material on record. Multiple arguments were advanced by the ld. AR during the course of hearing, starting with that the assessee was not a co-owner but only a consenting party to the sale deed executed in 2010; the transfer took place in 2001 and not on registration of the sale deed; the registered sale deed of 2010 was set aside by the Tenancy Tribunal order; and, in any case, the AO erred in computing capital gain without making any reference to the DVO. I w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides that no document required by section 17 of the Registration Act or by any provision of the Transfer of Property Act to be registered shall, inter alia, affect any immovable property comprised therein or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. On reading section 17 in juxtaposition to section 49 of the Registration Act, it becomes evident that immovable property of the value of one hundred rupees and upwards requires compulsory registration for transfer and if it is not accordingly registered, the transfer shall not take effect. 7. A cursory glance at the above provisions transpires that an immovable property can be transferred from one person to another only by means of compulsory registration. If the registration is not done, no transfer takes place. Adverting to the facts of the case, it is seen that the assessee is claiming the receipt of three properties in the year 1990 from his father through an affidavit issued by self in that year, which was sought to be corroborated by an affidavit of his father issued in the year 1994. Neither any registered transfer Deed was executed in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby rejected. This contention is, ergo, repelled. II. When the transfer of the property in question took place? 10. The ld. AR contended that the property in question was transferred in the year 2001 and the execution of the registered Sale Deed in the year under consideration does not involve any transfer within the meaning of section 2(47) of the Act. He vehemently relied on the fact that the assessee s father received ₹ 50,000 out of total consideration of ₹ 5.00 lakhs on executing Agreement to sell the property in the year 2001. The argument of the transfer taking place on 03-05-2001 is founded on the execution of an Agreement to Sell, which is an unregistered document. The Sale Deed was actually executed and registered on 07-12-2010 and the possession was also given to the buyers at that time as per such deed. 11. At this juncture, it is relevant to mention that section 53A of the Transfer of Property Act (TPA), prior to its amendment in 2001, construed completion of transfer on any person contracting to transfer for consideration any immoveable property by writing signed by him from which the terms necessary to constitute the transfer can be ascer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Registration and other related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. . Simultaneously, proviso to section 49(1) of the Registration Act was amended to exclude the expression `or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882 . Side-by-side, an amendment was also carried out in 2001 to section 53A of the TPA omitting the expression the contract though required to be registered, has not been registered, or . The net effect of these amendments is that the part performance of the contract without requiring registration, subject to fulfillment of certain conditions, which was hitherto considered as `transfer for the purposes of the TPA and the Registration Act, and also consequently the Act, ceased to be so. The position after the 2001 amendments is that registration of the documents is compulsory even in part performance of contract cases and the effects of non-registration apply to such cases in the same manner as to the other general cases requiring registration. Necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission before transferring the property . It further records: ` that in the present case, the disputed land appears to be in the permanent possession of the tenant. Hence, the transfer of the disputed land by the opponent Nos. 1 to 5 to the opponent Nos. 6 to 7 without following procedure prescribed vide section 164 (C) becomes legally untenable. Hence the disputed property is required to be transferred to the State Government vide section 84 (C)(3) and thereafter undertake further process vide section 84 (C)(4) . However I am convinced that immediate action vide section 84 (C)(4) will not be possible since the tenant has not submitted any details with respect to annual rent . The operative part of the order reads as under: Order 1. Incidental to the disputed land, the transfer of the disputed land by the opponent Nos. 1 to 5 to the opponent Nos. 6 to 7 is declared legally invalid in terms of section 84 (C)(4). Of the Mumbai Tenancy and Agricultural Lands Act 1948. 2. The disputed property be surrendered to the State Government after the expiry of time period for appeal against this order. 3. The order be communicated to all the concerned. 16. On go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration. In the third scenario of the property in question getting vested in the State Government, again several consequences will follow as regards the timing and the amount of computation of capital gain. These aspects of the matter have remained unanswered. At this stage, it is relevant to mention that the argument about the order of the Tehsildar and Agricultural Lands Tribunal, Ahmednagar, dated 9.11.2013 setting aside the registered sale deed executed in the year 2010, was taken up before the Tribunal for the first time. No such plea was there before the AO or the ld. CIT(A) that the sale made through registered Sale Deed 07-12-2010 was set-aside by the Tehsildar and Agricultural Lands Tribunal, Ahmednagar, even though the impugned order came to be passed in the year 2016, much after the order of the Tehsildar and Agricultural Lands Tribunal, Ahmednagar. Considering these peculiar facts, I am of the considered opinion that this issue needs consideration at the end of the AO in the hue of the above discussion. IV. Computation of capital gain Reference to the DVO 17. The ld. AR stated that the assessee submitted before the AO that the stamp value was excessive a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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