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TMI Blog2023 (3) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... it was a typographical error and if it was not so, then he would have sought the approval from the Competent Authority for examining this aspect. The AO failed to do so. Now, at this stage when the facts are undisputed that the case was taken up for limited scrutiny for the reasons stated to be cash deposits in the bank account and transfer of immovable property. We find merit in the contention of assessee that the Assessing Authority exceeded its jurisdiction for making assessment in respect of acquisition of the property by the assessee during the year. Thus, the AO is directed to delete the impugned addition.Appeal filed by the assessee is allowed. - ITA No.156/Jodh/2020 - - - Dated:- 22-3-2023 - Shri Kul Bharat, Judicial Member And Shri Manish Borad, Accountant Member For the Assessee : Shri Sandeep Jhanwar, CA For the Revenue : Shri S.M.Joshi, JCIT-DR ORDER PER KUL BHARAT, J.M.: The present appeal filed by the assessee for the assessment year 2015-2016 is directed against the order of Ld. CIT(A)-1, Udaipur dated 11.09.2020. The assessee has raised following grounds of appeal:- 1. Under the facts circumstances of the case the Ld.CIT(A)-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e term transfer of property would include the purchase of property as well. He submitted that there is no infirmity in the impugned order, same deserves to be sustained. 7. We have heard Ld. Authorized Representatives of the parties and perused the material available on record and gone through the orders of the authorities below. The Revenue has not disputed the fact that one of the items for scrutiny was that the assessee had also transferred one or more properties during the year. Ld.CIT(A) dismissed the contention of the assessee by observing as under:- In the written submissions filed before me, the appellant has contended that the issue of purchase of immovable property has not been a reason for selection of assessee's case for scrutiny under CASS as the reason for selection of the case was transfer of the property whereas the assessee purchased an immovable property. By raising this contention, the appellant resorted to the plea that the transfer does not include purchase. However, I am not inclined to agree with this contention of the appellant. Here we need to consider what is transfer? According to section 8 of the Transfer of Property Act 1882 (The Act), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement of whatever nature), not being a transaction by way of sale, exchange or lease of such land, building or part of a building ; (f) transfer - (i) in relation to any immovable property referred to in subclause( i) of clause (d), means transfer of such property by way of sale or exchange or lease for a term of not less than twelve years, and includes allowing the possession of such property to be taken or retained' in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882). Besides, the conditions defined in Section 53A of the Transfer of Property Act are satisfied in the appellant's case. This section is reproduced below for ready reference: Section 53A : Part performance-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently purchase is the ideal mode for acquiring title. There is no dispute in appellant's case that there took an act of transfer of immovable property vide registered document dated 25-11-2014 and the appellant acquired title over the property by way of purchasing this property in the said transfer by acting as transferee. Transfer of property is an act of conveying property from one person to another. In this act of conveying property, the appellant was a purchaser. Therefore, it is not legally correct to argue that the transfer of property does not include the purchase of property and only restricted to sale of property. In simple words, definition of transfer includes both purchase and sale of property. If appellant's contention be accepted then the whole purpose of various Acts gets defeated. The appellant's case was selected for scrutiny mainly for following reasons:- a. Large cash deposits in savings bank account b. Assessee has also transferred one or more property during the year. The AO duly examined the issue of cash deposits in the bank account and also the issue of transfer of property and duly completed the assessment making additions on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 269UA. Explanation 2. For the removal of doubts, it is hereby clarified that transfer includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterised as being effected or dependent upon or flowing from the transfer of a share or shares of a company registered or incorporated outside India]. 9. Acquisition of capital assets would not fall under this definition as it is the case of acquisition of capital asset but not of a sale of capital asset. The assessee should have pre-existing rights into the capital asset which he intends to transfer in favour of a third party. Hence, the pre-existing rights, interests and the title is sine qua non for transferring. In this case, vendor of capital asset is a third party and the assessee is a vendee. In our considered view, there were two options available with the AO; either he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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