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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 ..... reafter, the case was selected for limited scrutiny for the reason large cash deposits in saving bank accounts and the assessee had also transferred one or more properties during the year. Thereafter, the Assessing Officer ("AO") assessed the income of the assessee u/s 143(3) of the Act at INR 51,25,510/-. The AO while assessing the income at INR 51,25,510/-, had made addition in respect of unexplained cash deposit of INR 10,10,500/- and unexplained investment of immovable property u/s 69 of the Act at INR 34,77,600/-. 3. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A), who after considering the submissions, partly allowed the appeal. Thereby, Ld.CIT(A) sustained the addition made u/s 69 of the Act. However, in respect of bank deposits, Ld.CIT(A) accepted the contention of the assessee and deleted the addition. 4. Aggrieved against the sustaining of addition of INR 34,77,600/- by Ld.CIT(A), the assessee is in appeal before this Tribunal. 5. At the outset, Ld. Counsel for the assessee submitted that in this case, assessment was taken up for limited scrutiny and the items to be scrutinized, was related to cash deposits and transfer of one or more properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Act defines transfer as under:- " Transfer, in relation to a capital asset, includes,- (ii) the extinguishment of any rights therein; or (iii) the compulsory acquisition thereof under any law; or (iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment;] 6[or] (v) 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 section 53A of the Transfer of Property Act, 1882 1 (4 of 1882 ); or (vi) 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 or in any other manner whatsoever) which has the effect, of transferring, or enabling the enjoyment of, any immovable property." It is also necessary to understand the definitions of "immovable property" and "transfer" in section 269UA(d) and (f) of the Act, which read as under:- 269UA............................. (2)(d) "immovable property" means-(1) any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transfer has not been completed in the manner prescribed thereof by the law for the time being in force, the transferor or any person claiming under him shall debarred from enforcing against the, transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than the right specifically provided by the terms of the contract; Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof." A plain reading of Section 53A of the Transfer of Property Act shows that in order that a contract can be termed to be "of the nature referred to in Section 53A of the Transfer of Property Act" it is one of the necessary preconditions that transferee should have or is willing to perform his part of the contract. In order to attract Section 53A of the transfer of property Act, the following conditions need to be fulfilled:- (a) There should be contract for consideration; (b) It should be in writing; (c) It should be signed by the transferor; (d) It should pertain to the transfer of immovable property; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble ITAT Pune Bench allowed the assessee's appeal on the ground that the addition was made on the non-CASS issue without obtaining due permission from the superior authorities. Whereas in the instant case, the AO only examined the issues for which the case was selected for scrutiny and made the additions on these issues only. Accordingly, this contention of the appellant is rejected being devoid of merits." 8. We are unable to affirm the aforesaid reasoning of Ld.CIT(A) as the term "transfer" as defined u/s 2(47) of the Act speaks as under:- 2(47) "transfer", in relation to a capital asset, includes,- (i) the sale, exchange or relinquishment of the asset ; or (ii) the extinguishment of any rights therein ; or (iii) the compulsory acquisition thereof under any law ; or (iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment ; or (iva) the maturity or redemption of a zero coupon bond; or (v) 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 refe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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