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A.Krishnappa (Huf) , Bangalore vs The Income Tax Officer Ward-3(2)(2), ... on 25 October, 2019
cites
Commissioner Of Income Tax vs Balbir Singh Maini on 4 October, 2017
The Tribunal has duly considered the judgment of Hon'ble
Karnataka High Court rendered in the case of CIT Vs. Dr.T.K. Dayalu (supra)
and the judgment of the Hon'ble Apex Court rendered in the case of CIT Vs.
Balbir Singh Maini (supra) and it was held by the Tribunal that this judgement
of the Hon'ble Apex Court rendered in the case of CIT Vs. Balbir Singh Maini
(supra) is on the basis of the amendments by way of Registration and Other
Related Laws (Amendment) Act, 2001 and therefore, if the agreement in
question is executed after 2001 amendment without getting the agreement to
sale registered, then such unregistered agreement to sale will not have any
effect in law for the purpose of section 53A of the Transfer of Property Act,
1882. But since in that case, the agreement to sale was registered on
08.05.1995 which was much before the amendment by way of Registration
and Other Related Laws (Amendment) Act, 2001, the Tribunal held that it
cannot be said that the transfer has not taken place at the time of execution
of agreement to sale on 08.05.1995 which is supported by the payment of full
consideration on the same date by the buyer to the vendor and handing over
of the possession by the vendor to the buyer. In the present case also, the
ITA No. 1396/Bang/2018
Page 7 of 8
agreement to sale was executed much before the amendment by way of
Registration and Other Related Laws (Amendment) Act, 2001 and full
consideration of Rs. 40 Lakhs was also paid in the same year. Now whether
the possession was handed over or not is the question because this is one of
the objection of the ld. CIT(A) that possession was not given by the assessee
in Financial Year 1991-92. On page no. 98 of the paper book being page no.
6 of the sale deed, it is noted that the purchaser was put in possession of the
said property in terms of the deed of assignment dated 29.11.1992 which was
incomplete and not habitable except that the vendor had completed the bare
structures and the walls, internal plastering of the walls, providing teak wood
doors, windows and shutters. But the said property was not provided with
water, light, sanitation, flooring etc. and the purchaser after having acquired
the possession completed it at its cost the pending works in all respects.
Hence, from these facts noted in the registered sale deed, it is coming out
that possession was also handed over by the vendor to the purchaser and
the purchaser after getting the possession got the pending works completed
at its cost. Hence it is seen that this finding of ld. CIT(A) that possession was
not handed over is not correct. It may be that possession might not have
been handed over in July 1991 at the time of execution of agreement to sale
but definitely, the possession was handed over in November 1992 when the
deed of assignment was executed.
Section 53A in The Transfer Of Property Act, 1882 [Entire Act]
The Commissioner Of Income Tax vs Dr T K Dayalu on 20 June, 2011
The Tribunal has duly considered the judgment of Hon'ble
Karnataka High Court rendered in the case of CIT Vs. Dr.T.K. Dayalu (supra)
and the judgment of the Hon'ble Apex Court rendered in the case of CIT Vs.
Balbir Singh Maini (supra) and it was held by the Tribunal that this judgement
of the Hon'ble Apex Court rendered in the case of CIT Vs. Balbir Singh Maini
(supra) is on the basis of the amendments by way of Registration and Other
Related Laws (Amendment) Act, 2001 and therefore, if the agreement in
question is executed after 2001 amendment without getting the agreement to
sale registered, then such unregistered agreement to sale will not have any
effect in law for the purpose of section 53A of the Transfer of Property Act,
1882. But since in that case, the agreement to sale was registered on
08.05.1995 which was much before the amendment by way of Registration
and Other Related Laws (Amendment) Act, 2001, the Tribunal held that it
cannot be said that the transfer has not taken place at the time of execution
of agreement to sale on 08.05.1995 which is supported by the payment of full
consideration on the same date by the buyer to the vendor and handing over
of the possession by the vendor to the buyer. In the present case also, the
ITA No. 1396/Bang/2018
Page 7 of 8
agreement to sale was executed much before the amendment by way of
Registration and Other Related Laws (Amendment) Act, 2001 and full
consideration of Rs. 40 Lakhs was also paid in the same year. Now whether
the possession was handed over or not is the question because this is one of
the objection of the ld. CIT(A) that possession was not given by the assessee
in Financial Year 1991-92. On page no. 98 of the paper book being page no.
6 of the sale deed, it is noted that the purchaser was put in possession of the
said property in terms of the deed of assignment dated 29.11.1992 which was
incomplete and not habitable except that the vendor had completed the bare
structures and the walls, internal plastering of the walls, providing teak wood
doors, windows and shutters. But the said property was not provided with
water, light, sanitation, flooring etc. and the purchaser after having acquired
the possession completed it at its cost the pending works in all respects.
Hence, from these facts noted in the registered sale deed, it is coming out
that possession was also handed over by the vendor to the purchaser and
the purchaser after getting the possession got the pending works completed
at its cost. Hence it is seen that this finding of ld. CIT(A) that possession was
not handed over is not correct. It may be that possession might not have
been handed over in July 1991 at the time of execution of agreement to sale
but definitely, the possession was handed over in November 1992 when the
deed of assignment was executed.
Section 50C in The Income Tax Act, 1961 [Entire Act]
Section 45 in The Income Tax Act, 1961 [Entire Act]
Dr.Syed Rahmatullah Azizullah , ... vs The Income Tax Officer Ward-3 , ... on 10 May, 2019
4. Regarding ground no. 3, it was submitted that on page no. 56 of the paper
book is the statement of total income filed by the assessee along with the
return of income for Assessment Year 2008-09 and as per the same, the
assessee has declared an income of Rs. 60 Lakhs under the head long term
ITA No. 1396/Bang/2018
Page 3 of 8
capital gain in respect of additional compensation for land # 102-MRCR
Layout. Thereafter he submitted that on pages 75 to 80 of the paper book is
the copy of agreement for sale dated 01.07.1991 and on pages 81 to 88 of
the paper book is the copy of supplementary agreement dated 30.12.1991.
He also submitted that on pages 89 to 108 of the paper book is the copy of
sale deed dated 14.03.2008 for the same land i.e. Land No. 102, MRCR
Layout, Bangalore. He also pointed out that on page no. 78 of the paper book
being page no. 3 of the agreement for sale dated 01.07.1991, it is noted that
the vendor confirms the receipt of entire sale consideration of Rs. 40 Lakhs
from the purchaser company. Reliance was placed on a Tribunal order
rendered in the case of Dr. Syed Rahmatullah Azizullah Vs. ITO Nos. 240 &
241/Bang/2019 dated 10.05.2019.
Section 48 in The Income Tax Act, 1961 [Entire Act]
Sunil Kr. Sarkar (Deceased By L.R'S.) ... vs Aghor Kr. Basu (Deceased By L.R'S.) And ... on 9 May, 1987
"11.7 In this context, it is relevant to discuss another document: the
Tripartite Deed of Assignment (dated 29.11.1992), with Assessee as
Vendor, Unitech Ltd as Assignor and MM Annanthmurthy as Assignee.
In this Deed of Assignment, on page 6, there is an important clause
which says "the entire transaction by registration of the Sale Deed in
the manner stated above shall be executed by the vendors as well as the
assignors in favour of the assignee within 10 days from the receipt of
the N.O.C. on the assignee paying the balance of the consideration to
the assignor." On the date of signing the Deed of Assignment
(29.11.1992), the balance amount pending to be paid by the assignee
(MM Ananthmurthy) to the assignor (Unitech Ltd.) was Rs.13,00,000/-
. This was paid vide cheque dt. 31.01.2008, as evidenced at page 9 of
the Sale Deed. This clearly shows that the assignor (MM
Ananthmurthy) had not fulfilled his part of the contract. Thus, in terms
of pre-requisites for invoking the equitable doctrine of part
performance, as delineated by the Hon'ble Guahati High Court in the
case of Sunil Kumar Sarkar V. Aghor Kr. Basu, (supra), there is no part
performance of the contract of the nature referred to in Section 53A.
Hence, it cannot be said that the transfer took place on 29.11.1992
either. Since the payment was made on 31.01.2008 in pursuance of the
Deed of Assignment, part performance can be said to have been done
on 31.01.2008 i.e. FY 2007-08 which again renders capital gains to be
chargeable in the year under consideration i.e. AY 2008-09.
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