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TMI Blog2023 (11) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have been extinguished. In the present case before us, the rights get extinguished on 19.07.2007 and not on the date of Agreement to sale i.e., 04.02.2006. As the issue is squarely covered by the decision of Hon ble Supreme Court in the case of Seshasayee Steels (P) Ltd., supra, and the fact in the present case is that the owner s right to property ger extinguished on the date of registration of sale deed i.e., 19.07.2007 and the assessment of capital gain can only be made in assessment year 2008-09 and not in this assessment year 2006-07. We quash the assessment on this sole issue. This issue of assessee s appeal is allowed. - Shri Mahavir Singh, Vice President And Shri Manjunatha. G, Accountant Member For the Appellant : Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 2008-09 and not in assessment year 2006-07 as noted by the AO. The CIT(A) also not accepted the claim of assessee and confirmed the addition. The CIT(A) rejected the claim of assessee that the transfer of property took place on 19.07.2007 in financial year 2007-08 relevant to assessment year 2008-09 whereas he confirmed the action of AO by holding that the assessee during original assessment proceedings in affidavit admitted that as per sale agreement dated 01.06.2006 and affidavit given by assessee dated 02.02.2006, the vacant possession of the property was handed over on 02.02.2006 in the presence of witness. It was noted by the CIT(A) that assessee also executed a General Power of Attorney dated 02.02.2006 in favour of one Smt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Sec.2(47)(v) (vi) of the I.T. Act and held that the transfer took place in FY 2005-06 and hence the assessee is liable for Capital Gains Tax for AY 2006-07 only. Hence, the Appellant's ground of appeal in respect of date of transfer is dismissed and the finding of the A.O is upheld. Aggrieved, assessee came in appeal before the Tribunal. 4. We have heard rival contentions and gone through facts and circumstances of the case. The ld.counsel for the assessee filed paper book consisting of 39 pages and in which sale deed executed for the original property sold by assessee on 19.07.2007 is enclosed. The ld.counsel for the assessee took us through the sale deed recitals and stated that the sale deed is executed on 19.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itigation and that the said schedule property shall at all times be peacefully entered and quietly enjoyed by the PURCHASER and the VENDOR has not done or knowingly suffered or been a party to or privy to any act, deed or thing by reason whereof the said property or any part thereof is charged or encumbered or affected in estate, title or otherwise and that the VENDOR has paid all the levies and taxes in respect of the 'said property upto date and the VENDOR shall keep the PURCHASER indemnified against all claims, actions, proceedings, demands, costs, damages and expenses whatsoever which the PURCHASER may be put to by reason of any defect in title or any breach of any of the covenant, assurances and representations, contained herein an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit of the assessee supports the arguments of Revenue. But the legal position settled by the Hon ble Supreme Court in the case of Seshasayee Steels (P) Ltd., vs. ACIT, [2020] 115 taxmann.com 5 (SC) following the decision of Hon ble Supreme Court in the case of CIT vs. Balbir Singh Maini, [2018] 12 SCC 354 held that the transfer will complete in regard to property rights whenever owners rights have been extinguished. In the present case before us, the rights get extinguished on 19.07.2007 and not on the date of Agreement to sale i.e., 04.02.2006. The Hon ble Supreme Court in the case of Seshasayee Steels (P) Ltd., supra, has considered this issue as under:- We now turn to the argument of the learned senior counsel appearing on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid judgment, it is clear that the expression enabling the enjoyment of must take colour from the earlier expression transferring , so that it can be stated on the facts of a case, that a de facto transfer of immovable property has, in fact, taken place making it clear that the de facto owner s rights stand extinguished. It is clear that as on the date of the agreement to sell, the owner s rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted. As the issue is squarely covered by the decision of Hon ble Supreme Court in the case of Seshasayee Steels (P) Ltd., supra, and the fact in the present case is that the owner s right to prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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