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TMI Blog2022 (5) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... and handed over the possession to the assessee way back in the year 1997. After obtaining the possession, the assessee had installed electric connection provided by the Electricity Department and has been paying house tax to the Ghaziabad Municipal Committee. Assessee has proved his possession of the property which is evident from the installation of electricity connection in his name and house tax charged by the local tax authority. Therefore, the Ld.CIT(A) under these undisputed facts, ought to have taken a liberal approach for granting benefit of indexation as requested by the assessee. I therefore, set aside the impugned order on this issue and direct the AO to give benefit of indexation to the assessee as per law treating him in the possession of the flat since 1997. Ground raised by the assessee is allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... clining the benefit of indexation w.e.f 1997. 6. Ld. Counsel for the assessee reiterated the submissions as made in the written synopsis. The submissions of the assessee are reproduced as under:- "It is most respectfully submitted that: 1. The appellant is an individual by status and a salaried class person having income from salary, profession, capital gain and other sources. 2. The appellant filed his return of income for assessment year 2009- 10 declaring income of Rs. 23,09,859/- on 30.07.2009 vide acknowledgement no. 0100027785. Copy of acknowledgement of ITR along with computation of income is enclosed as per Annexure '1'. 3. AIR notice dated 15.12.2015 was issued to the appellant for explaining the source of investment of Rs. 5,00,000/- in mutual funds. Copy of notice is enclosed as per Annexure '2'. 4. In compliance to the AIR Notice, the appellant submitted his reply vide his letter dated 8th January, 2016. The appellant filed photo copies of his saving bank accounts, pass book along with copy of ITR and computation of income. Copy of reply letter enclosed as per Annexure '3'. 5. The case of the appellant was opened for reassessment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. The power of attorney was registered with the Sub Registrar, NOIDA. The possession of the flat was handed over to the appellant. Copy of sale agreement and the power of attorney is enclosed as per Annexure'10 13. The assessee started living in the flat in the year 1998. The electricity connection was taken in the name of the appellant in the year 1998. House-tax was also levied on the flat by Nagar Nigam, Ghaziabad with effect from 01-04-1998. These all papers clearly indicated that the appellant had purchased the flat in the year 1997. Copies of Electric Meter sealing certificate and Nagar Nigam House Tax receipt were also issued in the name of the appellant and these papers were submitted before the Id. Assessing officer at the time of hearing of the case. Copy of house tax bill and electric meter sealing certificate is enclosed as per Annexure'11. 14. The appellant made payment of remaining installments towards the cost of flat during the period from October, 1997 to June, 2003. 15. The flat was registered in the name of the appellant in the year 2003, after making payment of all installments of the flat. 16. The assessee sold the flat on 18-02-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be a contract for consideration in writing and same should be signed by the transferor; 2. The contract should be for transfer of immovable property and from therein the term necessary to constitute transfer should be certainly ascertained ; 3. The transferee should has taken possession of the property and has done something for furtherance of the contract; 4. The transferee should be ready and willing to perform his part of the contract; and 5. In this case even without execution of sale deed, the transferee acquires the right in the property and the transferor cannot claim any right in respect of property under consideration other than the rights expressly provided in the terms of contract. 22. a) In the present case, a sale agreement was executed between the transferor and the appellant for a consideration of Rs. 3,06,650/- on 03-10-1997. This sale agreement was in writing and was signed by the transferor as well as the transferee, the appellant. b) The contract was for transfer of a flat i.e. immovable property and all the terms and conditions to constitute transfer were clearly mentioned in the sale agreement. c) The transferee, the appellant took the possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Order passed by the Id. CIT (Appeals), Ghaziabad is enclosed as per Annexure '12'. The Honorable CIT (Appeals) failed to appreciate the following facts: i) An agreement was executed between the appellant and the seller of the flat on 03-10-1997 i.e. at the time of purchase of flat by the appellant. This agreement was duly notarized. ii) Power of Attorney was executed between the appellant and the seller of the flat on 04-10-1997. This Power of Attorney was registered with the Sub-Registrar, NOIDA. iii) The electricity connection was sanctioned in the name of appellant. The meter sealing certificate dated 19-03-1998 was in the name of Mr. Ashish Srivastava, the appellant. All the above mentioned documents clearly indicate that the appellant had taken possession of the flat in the Financial Year 1997-98, whereas the Honorable CIT(Appeals), mentioned, while deciding the appeal, that the appellant failed to evidence that the possession of the said property was taken by the appellant in 1997-98 In the view of the above facts and circumstances of the case, it is prayed to your honor that it be held that addition of Rs. 2,93,166/- on account of not allowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Authority ("GDA") vide letter dated 25.12.1997. However, flat was registered in the name of the assessee in the year 2003 only, after making balance installments. The case of the assessee is that the house was allotted to the original owner and possession was given to the original owner by GDA. However, the original owner by way of Agreement to Sale and registered Power of Attorney transferred the ownership in favour of the assessee, and handed over the possession to the assessee way back in the year 1997. After obtaining the possession, the assessee had installed electric connection provided by the Electricity Department and has been paying house tax to the Ghaziabad Municipal Committee. In my view, the assessee has proved his possession of the property which is evident from the installation of electricity connection in his name and house tax charged by the local tax authority. Therefore, the Ld.CIT(A) under these undisputed facts, ought to have taken a liberal approach for granting benefit of indexation as requested by the assessee. I therefore, set aside the impugned order on this issue and direct the AO to give benefit of indexation to the assessee as per law treating him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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