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TMI Blog2022 (7) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... ome force in the above argument of assessee. The paper book filed by the assessee shows that the assessee filed return of income for the A.Ys 2005-06 2006-07 and for subsequent years and has disclosed the rental income from the said property. In our opinion, the matter requires a revisit to the file of the AO since various documents filed by the assessee including the copy of the return for the A.Ys 2005-06 2006-07 disclosing the rental income from the property in question has not been verified by the lower authorities - we deem it proper to restore the issue to the file of the AO with a direction to grant one more opportunity to the assessee to substantiate his case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the Assessing Officer without seeking any adjournment under any pretext failing which the Assessing Officer is at liberty to pass appropriate order as per law including allowability of deduction u/s 54 - The grounds raised by the assessee are accordingly allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee made elaborate arguments. However, the learned CIT (A) was also not satisfied with the arguments advanced by the assessee and dismissed the appeal by observing as under: "5.4 The submissions of the appellant have been carefully examined. a) It is seen from the details, that the Agreement of Sale dated 05.10.2000 is not registered hence it is not a valid agreement. b) The appellant along with his brother Mohammed Layeeq had entered into an Agreement of Sale-cum-General Power Attorney as a GPA holder vide Document No.2691/2006 on 30.06.2006, for the property admeasuring 206.00 sq.yds or 172.23 sq. meters situated at 2-2-184, Turabnagar, Amberpet, Hyderabad for a total consideration of Rs.11,22,000/-, The GPA registered as document No.2691/2.006 dated 10.07,2006 at SRO, Chikkadapully, Hyderabad. The appellant and his brother Mohd Shakeel has sold the above property in the capacity of GPA holder, vide Sale Deed No,3347-2008 dated 13.10.2008 for a consideration of Rs.23,50,000/-. c) Since the possession of the property does not completed 3 years, the appellant is not eligible to claim the LTCG and it has to be taken as STCG. d) The appellant has not filed return of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent" just because it is not registered. 2. The appellant's submissions that he is in possession of the said Residential Property since 2000 as declared by the Vendors vide Para Four of the Agreement of Sale Dt.05.10.2000 is also not accepted by the CIT (A) though the same is also demonstrated by the appellant by admitting Rental Income from the said Property by filing his Return of Income even during the Asst. Year's : 2005- 06 up to 200'2-09 the copies of which are located and available on record., The return in response to notice D/s. 148 of the Income Tax Act, 1961 is also filed for Asst. Year: 2009-10 as a compliance. 3. The transfer of Property in favour of the appellant and his brother together with possession against payment of consideration is a valid and recognized transfer as defined vide Sec.2(47)(v) of the Income Tax Act, 1961 which reads: TRANSFER includes: "any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in Sec 53 A of the Transfer of Property Act, 1881 (4 of 1882)," Further Sec. 2(47) (vi) also reads. "any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the assessee. He submitted that the assessee in the instant case, has in fact, took possession of the property and let out the same and the rental income earned therefrom was duly declared in the return of income. He submitted that the assessee in the instant case in the return filed in response to the notice u/s 148 had admitted the deemed consideration as gross sale consideration for the purpose of LTCG on which the deduction u/s 54 was claimed. Although these evidences were filed, however, no cognizance of the same was taken by the learned CIT (A). The learned Counsel for the assessee submitted that the following documents filed before the CIT (A) would clearly show that the assessee had a title in the said property and when the property was sold, the income earned from it is LTCG and the assessee is eligible for deduction u/s 54 of the I.T. Act which was denied by the learned CIT (A). i) Agreement of Sale Dt.05/10/2000 ii) Registered Sale Deed cum GP A Dt. 30/06/2006 iii) Affidavit from the Original Vendor Dt.01/02/2017 Duly notarized. iv) Sale of the property by the Appellant vide Regd. Sale Deed Dt. 13/10/2008 v) Return of Income filed for the Asst. Year: 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return filed for the A.Ys 2005-06 & 2006-07 and therefore, the assessee was in possession of the property. It is the submission of the learned Counsel for the assessee that the lower authorities have not verified the documents properly and therefore, the assessee should be given an opportunity to substantiate his case. 9. We find some force in the above argument of the learned Counsel for the assessee. The paper book filed by the assessee shows that the assessee filed return of income for the A.Ys 2005-06 & 2006-07 and for subsequent years and has disclosed the rental income from the said property. In our opinion, the matter requires a revisit to the file of the Assessing Officer since various documents filed by the assessee including the copy of the return for the A.Ys 2005-06 & 2006-07 disclosing the rental income from the property in question has not been verified by the lower authorities. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to grant one more opportunity to the assessee to substantiate his case and decide the issue as per fact and law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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