9911796707
TMI Blog2022 (5) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Such other orders be passed as deemed fit and proper. 5. The appellant prays for leave to add to, modify or amend his grounds of appeal and lead evidence." 2. Brief facts of the case are that the appellant assessee is a company. As per the assessment order, assessee company was originally in the business of manufacture and sale of potable liquor, spirit, pharma products etc. The assessee company has suspended these business activities. During the year, assessee has shown income from capital gains and income from other sources. During the year, appellant assessee had sold a non-agricultural plot of land(impugned land) situated at village- Mahalung for Rs.63,50,000/- vide registered sale deed dated 01/11/2013 to Mr. Mustak Saheblal Shaikh. As per the registered sale deed, vacant and peaceful possession has been given to the purchaser. The purchaser has paid entire cost to the seller. Subsequently, vide another registered sale deed dated 16/11/2013, the appellant assessee purchased the said impugned non-agricultural plot of land from Mr. Mustak Saheblal Shaikh. 3. As per the assessment order, said transaction was not shown in the return of income. The A.O. based on the ITS d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4151/2013." 3.1 Therefore, the assessee company submitted before the A.O. that in this case, there is no transfer of the land as per the provisions of Section 54 and 55 of the Transfer of Property Act. The company further submitted that there will not be any capital gain. 3.2 The A.O. in para 5 of the assessment order has given his findings which are as under: "5. I have gone through the assessee submission carefully. In this regard, the Section 2(47) is reproduced as under: "Transfer, in relation to a capital asset, includes: - (1) The sale, exchange or relinquishment of the asset." A transaction of sale of land has been executed by sale deed duly registered with the sub-registrar. From the sale deed, it is seen that total sale consideration has been received by the assessee and possession has been handed over to the purchaser. In view of the above and in term of condition laid down in section 2(47)(i) of the Income Tax Act, 1961, transfer of property has been affected and therefore gain arising from sale of land is taxable. The Capital gain is worked out as under: Sale consideration 6350000 Indexed cost of acquisition 1229339 Taxable Long Term Gain 5120661 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/11/2013 for Rs. 64,50,000/- and there was no conditional sale or transfer in that Deed. Thus, the contention of the Appellant falls flat and the Assessing Officer has correctly held that, the Capital Gains accrued to the Appellant on this transaction. As this transaction was not shown in the Return of Income, the Appellant is taking shelter in the Transfer of Property Act whereas, all the terms and conditions of Sec. 2(47)(1) of the I.T. Act are fulfilled. The confirmation given of the purchaser to demonstrate the underlying conditions cannot be considered as it is self-serving for the purchaser also, as he resold the land to the Appellant. The Assessing Officer is also directed to verify whether any Capital Gains arise to the Purchaser Mr. Mustak Shaikh and take necessary action as per law to tax the right amount in the right hands. The addition due to Capital Gains made by the Assessing Officer is sustained. The Appellant fails in this ground of Appeal which are accordingly, dismissed." 5. Before us, the ld. AR filed English version of the registered sale deed dated 01/11/2013 and 16/11/2013. Ld. AR also filed a paper book which contains copy of affidavit of Mr. Mustak Sahebla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed document duly registered with the Sub-Registrar, and whatever it says has to be accepted on its face value. We have, therefore, no hesitation in agreeing with the revenue authorities that the registered document is a genuine one and because the said document shows a consideration of Rs, 1,31,400 the sale consideration which passed is Rs. 1,31,400. The cost of the assets as shown is Rs. 12,887, Therefore, the capital gain has been rightly computed at Rs. 1,18,513 which we confirm. " 8. It is no doubt true that the evidentiary value has to be attached to a registered document but the said document cannot be a final word in the matter. It has to be remembered that capital gains accrue only if there is a sale or any other transfer of the capital asset and if the assessee is able to prove that in fact no sale took place in that case no capital gain accrued which could be assessed to income-tax. If the assessee, even in the face of the registered sale deed, is able to prove by cogent evidence and satisfy the Tribunal that no sale in fact took place, in that case, the Tribunal has to come to the conclusion that there was no capital gain. As is apparent from the observations made in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ival contentions of both the parties and perused the material placed on record. The assessee has not denied the fact that the it had entered into a registered sale deed dated 01/11/2013. Assessee has not denied receipt of the entire sale consideration. However, assessee claims that no possession was given. This submission of the assessee regarding possession of the land is not being given is against the recital of the registered sale deed. The registered sale deed categorically mentions that peaceful and vacant possession has been handed over to the purchaser. It has been held by Hon'ble SC in the case of PLACIDO FRANCISCO PINTO (D) by LRs & VS JOSE FRANCISCO PINTO & ANR. CIVIL APPEAL NO. 1491 OF 2007 vide order dated SEPTEMBER 30, 2021, Quote, " It is beyond dispute that a sale deed is required to be registered i.e. a document required by law to be reduced to the form of a document. Therefore, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding or subtracting from its terms. The proviso (1) of Section 92 of the Evidence Act on which reliance was placed is a proof of such fact which would invalidate any document such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt assessee that he had no intention to enter in the transaction. In the Registered sale deed following things are specifically mentioned: -Vacant and peaceful possession of the property has been given to the purchaser. -The purchaser has become the owner of the said property. -There is no encumbrance -Sale deed has been typed as per the Vendor, Purchaser's knowledge and instructions. -Both the vendor and the purchaser have read the sale deed. -Both the vendor and the purchaser have understood the contents of the said sale deed and they agree and admit that the contents of the said sale deed are true and correct. 7.2 From the above clauses of the Sale deed, it can be inferred that both the vendors and Vendee have full knowledge of all the clauses mentioned in the Sale deed. There is no evidence filed by the AR to prove that the contents of the said registered sale deed are not true or are false. Therefore, it means the possession was handed over to the Purchaser, purchaser had paid entire consideration to the seller and the purchaser became the legal owner of the impugned land on 1/11/2013. Neither the purchaser nor the seller has filed any FIR against the so called vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
