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TMI Blog2023 (3) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... Ankit Gupta , Adv . For the Revenue : Ms. Sapna Bhatia , CIT - DR ORDER Per Anubhav Sharma , JM : The appeal has been filed by the Assessee against order dated 27.03.2022 passed for assessment year 2012-13, by the Pr. Commissioner of Income Tax, Noida (hereinafter referred to as the First Appellate Authority or in short 'Ld. F.A.A.') in regard to the appeal before it arising out of assessment order dated 25.11.2019 u/s 147/143(3) of I.T. Act, 1961 (hereinafter referred to as 'the Act') passed by ITO, Ward 5(2)(5), G Budh Nagar (hereinafter referred as Ld. Assessing officer or in short Ld. AO). 2. The assessee is an individual and filed return of income declaring income of Rs. 11,14,480/- on 27.02.2013 and subsequently the case was re-opened vide notice u/s 147 r.w.s. 148 dated 25.03.2019. In response to said notice the assessee filed return on 09.09.2019 disclosing income of 11,14,480/-. After inquiries the Assessing Officer accepted the return income, by assessment order u/s 143(3) r.w.s. 147 dated 27.12.2019. However, Ld. PCIT considered Assessment order to be erroneous and prejudicial to the interest of revenue, accordingly a notice u/s 263 dated 09.03.2022 was issued up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ambit of section 2(47)(v), read with section 53A of the 1882 Act. Only one of the conditions is satisfied in the instant case - only written agreement has found to have been executed but the possession of the impugned property has not been proved to be delivered to the vendee, by the vendor. Therefore, is unambiguously held that the impugned property has not been transferred on 05.08.2009 to the assessee, by Smt. Sangita Gupta, consequently, the sale consideration (Rs. 60,00,000/-) allegedly agreed upon by this unregistered Agreement to sell cannot be relied upon. In the instant case, the very Agreement to self dated 05.08.2009 is admittedly neither registered under section 17(1 A) of the Registration Act, 1908 nor given possession which is the condition precedent to give effect to the provision of section 53A of the Transfer of Property Act. Reliance is placed on the principle enunciated by the Hon'ble Supreme Court in the case of CIT v, Balbir Singh WSaini /2Q17 86 taxmann.com 94 /251 Taxman 202/ 398 ITR 531 SC) wherein, the Hon'ble Supreme Court held that in the case of immovable property, after the year 2001, the delivery of possession of the immovable property in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the contract, hence, the transaction of Rs. 60,00,000/- cannot be treated as sale consideration under Part Performance, as envisaged in section 53 A of the Transfer of Property Act, consequently, the same is void, in the eye of law. In view of the factual as well as legal discussion above, the cost of purchase to be taken Rs. 42,32,555/- instead of Rs. 62,40,000/-. 4.4. Further, though, the assessee declared his share in the impugned property at 50% in the return of the income however, it can be concluded from the followings that his wife Smt. Cheenu Goel is merely a name-sake co-owner. : 1. Smt. Cheenu Goei (wife of the assessee), allegedly made total investment of Rs. 14,50,000/- through banking channels (Rs. 5.0 lacs paid vide Cheque No. 156996 dt 07.07.2009 and Rs. 9.30 lacs paid vide Cheque No. 156995 dt. 03.10.2009 from the bank (A/c No. 1448149 with Royal Bank of Scotland), however, it is revealed from the said bank statement that she had no regular source of income, the desired fund received from some credit entries, prior to the payment. The evidence with regard to identity, creditworthiness of the lender and genuineness of the transactions has not been filed du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the AO is rendered erroneous in so, far as it is prejudicial to the interest of the revenue. 4.6. In view of above facts and circumstances, I find that the assessment order dated 04.07.2019 by the AO, Circle-1, Noida is erroneous in so far as the same is prejudicial to the interests of the revenue." 4. The assessee is in appeal here in Tribunal raising following grounds; "1. That the notice issued under section 263 of the Income Tax Act, 1961, and the order passed under said section are illegal, bad in law and without jurisdiction. 2. That the notice by the Pr. CIT under Section 263 does not show that the Assessing Officer committed any error in passing the assessment order under Section 147/143(3). Therefore, the jurisdiction assumed by the CIT under Section 263 is illegal and without jurisdiction and is liable to be quashed. 3. That the Pr. CIT has erred in not appreciating the fact, that the assessing officer has wrongly assumed the jurisdiction u/s 147 of the ACIT, on the basis of the incorrect reason to believe, which is illegal bad in law and without jurisdiction. 4. That, the Pr. CIT has failed to appreciate, that, the assessing officer has complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 263 is liable to be quashed. 12. That the Pr.CIT has erred in not providing proper and adequate opportunity to Appellant to place the material on record and the impugned order passed is against the principle of natural of justice. 13. That all the facts and circumstances of the case and the material available on record have not been properly considered by the Pr.CIT while passing the order under Section 263. The impugned order is illegal, arbitrary and bad in law. 14. The appellant craves leaven to add, amend, alter and or modify the grounds of appeal of the said appeal." 5. Heard and perused the record. 6. Ld. AR made submissions primarily on facts of the case as reproduced above. The primary contention was that the notice u/s 142(1) dated 11.09.2019 had raised the issue for which a detailed reply was given available on page no. 3 of the paper book and thus in the light of reply and relevant document being examined by the Ld. AO, there is no question of any lack of inquiry. It was submitted that if assessing officer has taken one of the possible views. The assessment order cannot be interfered u/s 263 of the Act. 7. Ld. DR however supported the orders of Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid for transfer of capital asset". The distinction arises from the fact that transfer of capital asset is concluded by way of transfer of title through execution of sale deed. Which may be preceded by an agreement to sell or any other transaction where by, a person agrees to transfer an enforceable interest in property to the prospective buyer. Thus, under sale deed the title is transferred from the seller to the buyer while in the case of agreement to sell the transfer of title has to take place at a future time and subject to some condition thereafter to be fulfilled. Such agreement may even be oral or implied but sale deed is concluded by registration and the stamp duty value in a sale deed only means value adopted by registration authority for the purpose of payment of stamp duty for the transfer of title in the immovable property. Same is higher of either the actual sale consideration paid by the purchaser or the circle rates determined by the Government. It may not be the 'cost of acquisition of the asset'. 11. The 'cost of acquisition of the asset' thus not only includes the sales consideration incorporated in sale deed or value of asset taken by registration authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;cost of improvement" has no relevance for deciding the present case, the cases relied upon by CIT(A) have no application on the facts of present case. 14. Looking the matter from this aspect and having regard to the plain language of Section 54F, we find that there is no scope of extending the meaning of word "purchase" to "cost of acquisition". The specific word "purchased" is used by legislature in Section 54F. If the intention of the legislature would have been to allow exemption with regard to "cost of acquisition" and "cost of improvement", these terms could have been used in this section as well as the same have been used in Section 48. Thus, the word "purchased" found place in Section 54F cannot be interpreted in a manner to include within its ambit the term "cost of acquisition and cost of improvement." 13. Thus in present case in hand Mrs Sangita Gupta was the intermediary being original allottee from builder. The builder was under an obligation to transfer title to her only or to anyone to whom she assigns her right to have title in that property from the builder. Builder could not have transferre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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