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TMI Blog2022 (6) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... The gist of the discussion made above is that the proposition canvassed by Shri Surana, assessee that by virtue of provisions of section 47 and section 75 of the Registration Act, the transfer will be deemed to be complete on the date of presentation of the deed to the sub registrar is not well founded and is, therefore, repelled. So far as the contention the assessee that since the title of the assessee was defective, therefore, there was no transfer, we do not find any force in the above contention of the ld. counsel for the assessee. The registered sale deed executed in favour of the assessee by Shri Sujit Kr. Bindal has never been set aside by any court of competent jurisdiction. Though, the plea of the assessee is that his sale deed was not valid, whereas, the assessee, himself, has sold the above said property by way of three registered sale deeds to Priyanka Promoters and Developers. Moreover, the alleged gift executed by Shri Sujit Kr. Bindal allegedly to his brother, in our view, will not have any impact until and unless the registered sale deed in favour of the assessee by the said Sujit Kr. Bindal is not declared null and void by any court of competent jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per Sanjay Garg , judicial Member The present appeal has been preferred by the assessee against the order dated 27.02.2019 of the Commissioner of Income Tax (Appeals), Siliguri [hereinafter referred to as 'CIT(A)'] passed u/s. 250 of the Income Tax Act (hereinafter referred to as the 'Act'). 2. The brief facts of the case are that the assessee is an individual who furnished his return of income for the assessment year 2014-15 on 31.03.2015 declaring a total income of Rs. 2,29,360/-. The return was selected for limited scrutiny assessment under CASS for the reason, sale consideration of property in ITR is less than sale consideration of property reported in AIR . The Assessing Officer asked the assessee to produce the details of sale of property along with supporting documents; in response to which, the assessee submitted the copy of the purchase deed of the said property, from which it transpired that the assessee had on 11.09.2002 had purchased from one, Shri Sujit Kumar Bindal, a piece of land measuring 5 kathas/0.8 decimal. I was further transpired that on 11.09.2002, the assessee's wife namely Smt. Manju Devi Rampuria also purchased a pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly executed Gift Deed dated 30 September, 2011. Ongoing through the papers and making enquiry from the office of Registrar of Assurances I was really shocked to learn that by executing conveyance deed in my favour in 2002, I have really been cheated. I was now desperate to get rid of the entire episode and transaction and realize my money somehow. I am a middle class advocate, somehow trying to meet my family needs. It was a great loss to me. However, somehow I got hold of Priyanka Promoters and Developers to whom I narrated the entire story. The said purchaser agreed to purchase the property as is where is basis but offered only Rs. 10 lakhs. Since, I was getting my investment back and desperate to come out of the deal, I readily agreed for the transaction and executed the deed in his favour. Considering the entire episode referred above and keeping in mind the vital fact that the purchase deed executed in my favour may or may not be genuine, the consideration received was quite fair reasonable. In fact that if the purchase deed executed in my favour was not genuine, then in fact there was no transfer of any immovable property by me so as to apply the provisions of sec. 50C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a registered deed of conveyance. 4. Being aggrieved by the aforesaid action of the Assessing Officer, the assessee preferred an appeal before the ld. CIT(A), however, the ld. CIT(A) dismissed the appeal of the assessee, observing as under: The only effective ground of appeal is against the addition made by the Ld. A.O invoking the provisions of Section 50C and determining Long Term Capital Gain of Rs. 68,24,967/- which was not disclosed by the appellant. The Ld. A.O has determined the above long term capital gain by critically analyzing, based on the date of transfer of the property. On perusal of the statement of facts, it is seen that the appellant did not substantiate any submissions/documents in respect of the grounds of appeal filed. Accordingly the addition made by the Ld. AO in respect of Long term capital gains of Rs. 68,24,967/- is hereby confirmed. 5. Being aggrieved by the above order of the ld. CIT(A), the assessee has come in appeal before us with the following grounds of appeal: 1. For that the Ld. CIT(A) erred in confirming the order of the A.O when the facts of the case that the assessee had no legal and valid title over the land wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration. (4) The Registrar may, for the purpose of any enquiry under section 74, summon and enforce the attendance of witness, and compel them to give evidence, as if he were a Civil Court and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908 (5 of 1908). Referring to the section 47 of the Registration Act 1908, Mr. Surana has submitted that though, all the three sale deeds vide which the assessee transferred the property in question were not registered till the end of the financial year 2012-13 relevant to assessment year 2013-14, however, these deeds were presented for registration to the Sub-Registrar on 31.03.2013 i.e. in the financial year 2012-13 relevant to the assessment year 2013-14 itself. He has further submitted that though these deeds were registered on 1.4.2013 i.e. in the next financial year 2013-14 relevant to the assessment year 2014-15, however, as per the provisions of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate CWP No. 2563 of 2003 vide order dated 10.08.2009 to submit that merely because the sale deed was registered that does not been that the title of the assessee was perfect. That the registering authority was bound to register the document when it was presented and it was not required of him to make enquiry about the title of the property. 9. On the other hand, the ld. DR, Ms. Ranu Biswas, Additional CIT has submitted that the Assessing Officer has rightly taken the date of transfer of the property by the assessee as on 01.04.2013, she has submitted that as per the section 17 of the Registration Act 1908, any document of transfer of immovable property of the value of Rs. 100/- and above is required to be compulsorily registered, and if such document is not registered then as per the provisions of section 49 of the Registration Act, any document which is required to be registered as per section 17 of the Registration Act if not registered, will not affect any immovable property comprised therein and it will not be received as evidence of any transaction affecting such property except any and sue for specific performance or as evidence of any collateral transaction. She, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now estopped to take this additional ground at this stage. She has further submitted that reliance of the ld. counsel for the assessee on the provisions to section 75 of the Registration Act was misplaced. She, in this respect has submitted that part XII of the Registration Act 1908 containing sections 71 to 77 deals with the cases in which the Registrar may refuse to register a document and the procedure thereof. She has further submitted that date of presentation and certification of deed are separate processes and cannot be taken to be one and same; that the date of presenting of deed of conveyance of the Registrar cannot substitute with the date of registration. She has submitted that since, the date of registration in this case was 01.04.2013 relevant to assessment year 2014-15, therefore, the decision of the Hon'ble Supreme court in the case of Suraj Lamps and Industries Vs. State of Haryana (supra) was applicable and the Assessing Officer rightly invoked the provisions of section 50C of the Income Tax Act for the assessment year under consideration. She has, in this respect, has relied upon the following case laws: 1. Supreme Court in the case of Suraj Lamps an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully knowing that the registration of the said sale deeds would only be done on 01.04.2013 and thereby the plan was designed so that the execution of the sale deeds should be claimed to be done in earlier financial year and registration date mentioned would be of the next financial year so as to misguide the Income Tax Authorities as the sale deed would come in the public domain on its actual registration on 1.4.2013 i.e. in the financial year 2013-14 relevant to assessment year 2014-15. It is further to be noted that the assessee bifurcated the transfer of the chunk of land held by him along with his wife into three parts and presented three separate sale deeds for registration on the same day. It has not been explained as to why three separate sale deeds by the same sellers to the same purchasers were made by dividing the same chunk of land into three parts and thereby making three sale deeds which was allegedly presented for registration on the same date i.e. 31.03.2013 and got registered on 01.04.2014. The facts on the file, itself, show that the assessee deliberately divided the amount of sale consideration into three parts by way of three sale deeds so as to not to invite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the provision of section 50C in assessment year 2013-14. Even for assessment year 2014-15, the assessee did not raise this additional ground before the ld. CIT(A) and allowed the time to pass which was available to the Assessing Officer for reopening of the assessment for assessment year 2013-14. Now the assessee before this Tribunal has come with this additional ground that the Assessing Officer could have invoked the provision of section 50C for assessment year 2013-14 only not for AY 2014-15. It is apparent that the Assessee designed the evasion in such a manner that though the registration will be done in the subsequent year but the assessee will take the plea that the Assessing Officer cannot tax the same on the ground that the said transfer would relate back to the earlier assessment year. It is a case where the facts are apparent that the assessee has devised tax evasion scheme which cannot be appreciated. The Jurisdictional Calcutta High Court, in somewhat similar circumstances in the case of Bagri Impex (P.) Ltd. Vs Assistant Commissioner of Income Tax [2013] 31 taxmann.com 39 has held that the assessee cannot be allowed to adopt devices to defeat the provisions. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is squarely applicable to the facts of the present case. Therefore, we are not inclined to admit the additional ground taken by the assessee. 11. Even otherwise, we do not find any force in the contentions raised by the Ld. Counsel for the assessee that by virtue of the applicability of the provisions of section 47 and section 75 of the Registration Act, the transfer would relate back to a date prior to the registration for the purpose of applicability section 50C of the Income Tax Act. Admittedly, the conveyance was not complete till it was registered on 1st April 2014. Merely because of the provisions to sections 47 or 75 of the Registration that after registration the sale deed will relate back to the date of execution/presentation, does not mean that the sale deed in any manner was complete till its registration on 01.04.2013, therefore, the Assessing Officer did not have any occasion to invoke section 50C in the assessment year 2013-14. A question pertaining to the scope of provisions of section 47 of the Registration Act came up for consideration before the Hon'ble Supreme Court in the case of Ram Saran Lall v. Mst. Domini Kuer, AIR 1961 SC 1747 wherein, the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e title under the sale deed relates back to the date of its execution and, therefore, though registration was completed on November 30, 1964, the transferee's title under the sale related back to the date of the execution, i.e., October 9, 1964. Assuming, therefore, that the application was presented on November 26, 1964, the transferee's title having related back to the date of the execution of the sale deed, the transfer must be deemed to be completed on that date, and, therefore, it was not correct that the right of reconveyance had not accrued to the appellant on November 26, 1964, or that the Collector had no jurisdiction on that date to accept the said application. This contention, however, cannot be accepted in view of the decision in Ram Saran Lall v. Mst. Domini Kuer [1962] 2 SCR 474; AIR 1961 SC 1747, where this court rejected an identical contention. Mr. Desai tried to distinguish that case on the ground that it was based on Mahomedan law which by custom applied to the parties there. But the decision is based not on any principle of Mahomedan law but on the effect of section 47 of the Registration Act. The majority decision clearly laid down that the sale there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration of the document and that, though, by virtue of section 47 of the Indian Registration Act, it would relate back to the date of execution, in such cases, insofar as third parties are concerned, particularly, the tax authorities, the relevant date for the levy of tax is the date of registration of the document. Similar view has been expressed by the Hon'ble madras High Court in the case of Commissioner of Gift-tax v/s Shree Shyam Sayee Corpn. [2005] 148 Taxman 216 (Mad.). In Paritala Narasimham v. Ayinampudi AIR 1957 AndhPra 535, it was held that the transfer cannot be antedated for the purpose of Section 54 of the Insolvency Act. 12. In view of the law laid down by the Apex court of the country and by various High courts including jurisdiction Calcutta High Court as discussed above, it can be safely concluded that the transfer of the immovable property cannot be said to be complete till the deed is registered and it cannot be said to have been completed earlier because by virtue of s. 47 or section 75 of the Registration Act 1908. These sections, therefore, have nothing to do with the completion of a sale. The object of these sections is to decide which of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d deed which constitutes transfer of capital asset as per the provisions of section 2(47) of the Income Tax Act. So far as the plea that there was a dispute relating to the title of the property, hence there was less saleable price of the property is concerned, we find that the said issue has not been properly considered by the ld. CIT(A). Though, it has been mentioned by the Ld. CIT(A) in the impugned order that the said Sujit Kr. Bindal has appeared before the Assessing Officer and had also furnished the copy of a suit filed against the Priyanka Promoters and Developers, however, no copy of the same has been produced on file before us. It is not clear as to who is/was in possession of the property in question. What are the allegations by the seller relating to the title of the property and whether those allegations/claim made by the original owner/seller had any bearing on the sale price of the property in relation to the sale deeds made by the assessee. Therefore, we restore the matter to the file of the CIT(A) with a limited direction that the ld. CIT(A) will make or cause to make such enquiry so as to ascertain the aforesaid facts and to find out whether there was any justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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