Shri Sanjay Prakash Kulshrestha, ... vs Income Tax Officer (T & J) O/O Pr. Cit-2, ... on 9 March, 2020
5.16 Alternatively, the appellant argued that as per sale dated 16.01.2006, out of total
land area of 302.86 sq. mtr., land admeasuring 66.92 sq. mtr. was only transferred to the
daughter of the appellant^ hence . in case of balance land of 235.94 sq. mtr (302.86 less
66.92), the gain computed shall be long term capital gain since such portion of land was
never transferred by the appellant to her daughter. Such argument of the appellant
cannot be accepted in view of the fact that land area was erroneously mentioned as 66.92
sq. mtr in the sale deed and mentioned by the appellant herself. The consideration
received by the appellant was in connection with entire area of the land and not only for
66.92 sq. mtr. of land. The daughter of the appellant enjoyed right of the entire property
and not part of the property as mentioned by the appellant. The appellant herself has
stated that area of land was erroneously mentioned in the sale deeds executed on
05.08.1986 and 16.01.2006. When the appellant has herself accepted the fact that area
has been erroneously mentioned, there is no force in the argument that only such part
shall be considered as transferred to the daughter and not the balance area of 235.94 sq
I.T.A No. 738/Ahd/2019 A.Y. 2016-17 Page No. 12
Ashalata Kulshrestha vs. ITO
mtr more particularly when sale consideration offered was for entire area of 302.86 sq
mtr. Hence such argument of the appellant is rejected
5.17 It is further observed that for cancellation of original sale deed, the appellant
has paid stamp duty of Rs. l,35,300/-. The appellant has argued that stamp duty has been
paid by mistake. Instead of buying a stamp paper of denomination of Rs. 100/-, the
appellant mistakenly paid the stamp duty of Rs. 1,35,300. On knowing its mistake, the
appellant applied for refund of such duty but since application was made after the expiry
of specified time limit, no refund was granted to the appellant. I do not find force in the
argument of appellant. It is difficult to accept that huge amount of stamp duty of Rs.
1,35,300/- would be paid on a mistaken belief. I find merit in the argument of the
Assessing Officer that payment under the "Stamp Act" is required to be made as and
when new documents are registered under "Transfer of Property Act. Since the appellant
has made payment towards registered deed No. 5572 to the tune of Rs. 1,35,300/- as per
information provided by Sub-Registrar, Ahmedabad, the transaction with respect to
immovable property shall be considered as a fresh transaction. Payment of stamp duty
itself suggests that a new deed has been registered through which the appellant had
regained control over the alleged property. The reasons given by the appellant is
unacceptable and substantiates the fact that ownership was retransferred to the appellant
on 15.07.2015 vide cancellation deed which was duly registered by payment of Stamp
Duty. This clarifies the intention of the appellant which was to repurchase the property
through such cancellation deed through which the appellant became owner of the
property from 15.07.2015 and before that date the real owner of property shall be the
daughter of the appellant in lieu of valid transfer executed vide sale deed dated
16.01.2006.