Mallika Investment Co. (P) Ltd., Kolkata V. ITO, WD-4(2), KOLKATA, Kolkata

ITA 1245/KOL/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9781 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Keywords: Capital asset; Cost of acquisition
• Section: 2(14)

Judgement Text

1 ITA NO. 1245/KOL/2015 MALLIKA INVESTMENT CO. PVT. LTD., AY 2008-09 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) BEFORE . . , /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M. BALAGANESH , AM] I.T.A. NO. 1245/KOL/2015 ASSESSMENT YEAR: 2008-09 MALLIKA INVESTMENT CO. PVT. LTD. (PAN:AABCM7336B) VS. INCOME-TAX OFFICER, WD-4(2), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 22.11.2018 DATE OF PRONOUNCEMENT 12.12.2018 FOR THE APPELLANT SHRI SOMNATH GHOSH, ADVOCATE FOR THE RESPONDENT SHRI SAURABH KUMAR, ADDL. CIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-2, KOLKATA DATED 04.09.2015 FOR AY 2008-09. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.1,75,00,000/- BY HOLD ING THAT THE AMOUNT RECEIVED ON AN AGREEMENT OF ASSIGNMENT OF IMMOVABLE PROPERTY WHICH IS UNREGISTERED IS TRANSFER U/S. 48 READ WITH SEC. 2(47)(V) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) READ WITH SEC. 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (HEREINAFTER REFERRED TO AS THE T. P. ACT, 1882). 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME U/S. 139(1) OF THE ACT ON 24-09-2012 DISCLOSING TOTAL INCOME OF RS. 7,89,577/- FOR THE ASSESSMENT YEAR UNDER DISPUTE. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, THE AO NOTED THAT THE ASSESSEE RECEIVED SUM OF RS.1.75,00,000/- FROM M/S. IMPROVED REALTORS (P.) LTD. BY VIRTUE OF AN UNREGISTERED AGREEMENT OF ASSIGNMENT OF THE LEASEHOLD RIGHTS DATED 17-08- 2007. SO, 2 ITA NO. 1245/KOL/2015 MALLIKA INVESTMENT CO. PVT. LTD., AY 2008-09 ACCORDING TO AO, THE ASSESSEE WAS LIABLE TO BE TAXE D ON THE CAPITAL GAINS, SINCE THE TRANSACTION FOR WHICH ASSESSEE RECEIVED THE AMOUNT FALL WITHIN THE SCOPE AND AMBIT OF SEC. 48 READ WITH SEC. 2(47)(V) OF THE ACT READ WITH SEC . 53A OF T.P. ACT, 1882. THE ASSESSEE HAD BROUGHT TO THE KNOWLEDGE OF THE AO THAT THE ASSESSE E IS NOT THE OWNER AND WAS IN POSSESSION OF THE PROPERTY ONLY IN THE CAPACITY OF A LESSEE BY VIRTUE OF A DULY EXECUTED INDENTURE OF LEASE DRAWN ON 14-02-1970, AND LATER I N THIS ASSESSMENT YEAR BY VIRTUE OF AN UNREGISTERED AGREEMENT OF ASSIGNMENT OF THE LEASEHO LD RIGHTS DATED 17.08.2007 HAD HANDED OVER ITS POSSESSION OF THE PROPERTY TO M/S IMPROVED REALTORS (P) LTD. BY WHICH THE ENTIRETY OF THE INTEREST OF THE ASSESSEE IN THE PROPERTY WAS TRANSFERRED TO IT. ACCORDING TO ASSESSEE, SINCE IT WAS NOT THE OWNER OF THE IMMOVABLE PROPERT Y AND HAD NO POWER TO TRANSFER THE RIGHT, TITLE AND/OR INTEREST AS AN OWNER TO ANYONE, THEREF ORE THERE WAS NO VALID TRANSFER WITHIN THE MEANING OF SEC. 2(47)(V) OF THE ACT. HOWEVER, NOT S ATISFIED WITH THE EXPLANATION TENDERED BY THE ASSESSEE, THE ASSESSING OFFICER HELD THAT SI NCE THE CONSIDERATION WAS PAID DURING RELEVANT ASSESSMENT YEAR AND THE POSSESSION WAS ALS O HANDED OVER DURING THE RELEVANT YEAR, THERE WAS DEEMED TRANSFER OF 'CAPITAL ASSET WITHIN THE MEANING OF THE SAID CLAUSE, (SEC. 53A OF T. P. ACT, 1882) IT WOULD BE TANTAMOUNT TO TRANS FER FOR COMPUTING 'LONG TERM CAPITAL GAINS'. THEREAFTER THE ASSESSING OFFICER WHILE COMP UTING THE AMOUNT OF THE 'CAPITAL GAINS' HAS TAKEN THE 'COST OF ACQUISITION' OF THE CAPITAL ASSET, BEING THE LEASEHOLD RIGHT IN THE PROPERTY, TO BE NIL AND CONCLUDED THAT THE ENTIRE VALUE OF CONSIDERATION OF RS. 1,75,00,000/- WAS ASSESSABLE AS LONG TERM CAPITAL G AINS, WHICH WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED, ASSESSEE PREFERR ED AN APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ACTION OF AO. AGGRIEVED, ASSESSEE HA S PREFERRED THIS APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROU GH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE ASSESSEE IS NOT THE OWNER OF THE IMMOVABLE PROPERTY AND WAS ONLY THE LESSEE ENJOYING THE LEASEHOLD RIGHTS IN THE PRO PERTY BY VIRTUE OF AN INDENTURE OF LEASE DATED 14.02.1970 (FOR TEN YEARS) WHICH WAS EXTENDED FOR FURTHER SIXTY YEARS FROM 14.02.1980 AS PER THE TERMS AND CONDITIONS OF ORIGI NAL LEASE DOCUMENT DATED 14.02.1970. SO, ACCORDING TO ASSESSEE IT WAS ONLY A LESSEE AND NOT AN OWNER OF THE IMMOVABLE PROPERTY. SO THE LESSEE CAN ONLY ENJOY LEASEHOLD RIGHTS AND C ANNOT TRANSFER ANY OTHER RIGHTS OTHER THAN THE LEASEHOLD RIGHTS, THAT TOO SUBJECT TO THE TERMS OF LEASE AGREEMENT. SO THE ASSESSEE CANNOT 3 ITA NO. 1245/KOL/2015 MALLIKA INVESTMENT CO. PVT. LTD., AY 2008-09 TRANSFER ANY RIGHT/INTEREST IN THE IMMOVABLE PROPER TY, WHAT IT DOES NOT ENJOY. HOWEVER WE NOTE THAT TRANSFER OF A CAPITAL ASSET IS CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAIN AND IS DEEMED TO BE THE INCOME OF THE FINANCIAL YEAR IN WH ICH THE TRANSFER TOOK PLACE. AND CAPITAL ASSET IS DEFINED U/S. 2(14) OF THE ACT WHICH MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFE SSION, UNLESS SPECIFICALLY EXCLUDED. HOWEVER, ACCORDING TO LD. AR, FOR THE PURPOSE OF IN COME-TAX ACT, THE CONSIDERATION WHICH ASSESSEE RECEIVED FOR UNREGISTERED AGREEMENT/RIGHTS HAVE BEEN BROUGHT TO TAX BY AO/LD. CIT(A) ERRONEOUSLY UNDER SECTION 2(47)(V) OF THE AC T READ WITH SEC. 53A OF TRANSFER OF PROPERTY ACT, 1882. FOR SAYING SO, HE RELIED ON TH E APEX COURT JUDGMENT WHEREIN THE HONBLE SUPREME COURT HELD THAT AFTER THE AMENDMENT IN INDIAN REGISTRATION ACT IN YEAR 2001 AND CORRESPONDING AMENDMENT IN SEC. 53A OF TRA NSFER OF PROPERTY ACT, 1882, WITHOUT REGISTRATION OF THE AGREEMENT THERE CAN BE NO VALID TRANSFER OF IMMOVABLE PROPERTY IN THE EYES OF LAW. WE NOTE FROM A PERUSAL OF PAGE 18 OF PAPER BOOK THAT AN AGREEMENT OF ASSIGNMENT OF THE LEASEHOLD RIGHTS WAS EXECUTED BY THE ASSESSEE ON 17.08.2007 IN FAVOUR OF M/S. IMPROVED REALTORS LTD. AND WE NOTE THAT THE TH IS AGREEMENT WAS AN UNREGISTERED DOCUMENT TILL 31.03.2008. THE LD. AR DREW OUR ATTE NTION TO THE FACT THAT SINCE THE DOCUMENT ( ASSIGNMENT OF LEASEHOLD RIGHT ) HAS NOT BEEN REGISTERED, ACCORDING TO HIM, IN THE EYES OF LAW NO TRANSFER EVEN BY AN OWNER OF AN IMMO VABLE PROPERTY CAN BE LEGALLY MADE BY INVOKING SECTION 53A OF TP ACT 1882. AND CONSEQUENT LY THE AMOUNT RECEIVED BY THE ASSESSEE CANNOT BE TAXED INVOKING SEC. 2(4&)(V) OF THE ACT SINCE THE ASSIGNMENT OF LEASEHOLD RIGHT IN ANY CASE CANNOT BE TERMED AS TRANSFER, EVEN BY INVOKING SEC. 53A OF THE OF TP ACT 1882 ; AND THE LOWER AUTHORITIES ERRED IN TREATING THE TRANSACTION AS TRANSFER OF IMMOVABLE PROPERTY INVOKING SECTION 53A OF TP ACT 1 882. FOR THAT HE RELIED ON THE ORDER OF THE HONBLE SUPREME COURT IN CIT VS. BALBIR SING H MANI (2017) 398 ITR 531 (SC) AND DREW OUR ATTENTION TO PAGE 547 OF THE ORDER WHEREIN THE HONBLE SUPREME COURT HELD AS UNDER: IT IS ALSO WELL-SETTLED BY THIS COURT THAT THE PRO TECTION PROVIDED UNDER SECTION 53A IS ONLY A SHIELD, AND CAN ONLY BE RESORTED TO AS A RIGHT OF D EFENCE. SEE RAMBHAU NAMDEO GAJRE V. NARAYAN BAPUJI DHOTRA [2004] 8 SCC 614 AT 619, PARA 10. AN AGREEMENT OF SALE WHICH FULFILLED THE INGREDIENTS OF SECTION 53A WAS NOT RE QUIRED TO BE EXECUTED THROUGH A REGISTERED INSTRUMENT. THIS POSITION WAS CHANGED BY THE REGIST RATION AND OTHER RELATED LAWS (AMENDMENT) ACT, 2001. AMENDMENTS WERE MADE SIMULTA -NEOUSLY IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT AND SECTIONS 17 AND 49 OF THE INDIAN REGISTRATION ACT BY THE AFORESAID AMENDMENT; THE WORDS 'THE CONTRACT, THOUG H REQUIRED TO BE REGISTERED, HAS NOT 4 ITA NO. 1245/KOL/2015 MALLIKA INVESTMENT CO. PVT. LTD., AY 2008-09 BEEN REGISTERED, OR' IN SECTION 53A OF THE 1882 ACT HAVE BEEN OMITTED. SIMULTANEOUSLY, SECTIONS 17 AND 49 OF THE 1908 ACT HAVE BEEN AMENDE D, CLARIFYING THAT UNLESS THE DOCUMENT CONTAINING THE CONTRACT TO TRANSFER FOR CONSIDERATI ON ANY IMMOVABLE PROPERTY (FOR THE PURPOSE OF SECTION 53A OF 1882 ACT) IS REGISTERED, IT SHALL NOT HAVE ANY EFFECT IN LAW; OTHER THAN BEING-RECEIVED AS EVIDENCE OF A CONTRACT IN A SUIT FOR SPECIFIC PERFORMANCE OR AS EVIDENCE OF ANY COLLATERAL TRANSACTION NOT REQUIRED TO BE EFFECTED BY A REGISTERED INSTRUMENT. SECTION 17(LA) AND SECTION 49 OF THE REGISTRATION A CT, 1908 ACT, AS AMENDED, READ THUS : 17(1A). THE DOCUMENTS CONTAINING CONTRACTS TO TRAN SFER FOR CONSIDERATION, ANY IMMOVABLE PROPERTY FOR THE PURPOSE OF SECTION 53A OF THE TRAN SFER OF PROPERTY ACT, 1882. (4 OF 1882) SHALL BE, REGISTERED IF THEY HAVE BEEN EXECUTED ON OR AFTER THE COMMENCEMENT OF THE REGISTRATION AND OTHER RELATED LAWS (AMENDMENT) ACT , 2001 AND IF SUCH DOCUMENTS ARE NOT REGISTERED ON OR AFTER SUCH COMMENCEMENT, THEN THEY SHALL HAVE NO EFFECT FOR THE PURPOSES OF THE SAID SECTION 53A.' ' 49. EFFECT OF NON-REGISTRATION OF DOCUMENTS REQUI RED TO BE REGISTERED.-NO DOCUMENT REQUIRED BY SECTION 17 OR BY ANY PROVISION OF THE T RANSFER OF PROPERTY ACT, 1882 (4 OF 1882), TO BE REGISTERED SHALL- (A) AFFECT ANY IMMOVABLE PROPERTY COMPRISED THEREIN , OR (B) CONFER ANY POWER TO ADOPT, OR (C) BE RECEIVED AS EVIDENCE OF ANY TRANSACTION AFFE CTING SUCH PROPERTY OR CONFERRING SUCH POWER, UNLESS IT HAS BEEN REGISTERED : PROVIDED THAT AN UNREGISTERED DOCUMENT AFFECTING IM MOVABLE PROPERTY AND REQUIRED BY THIS ACT OR THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 188 2), TO BE REGISTERED MAY BE RECEIVED AS EVIDENCE OF A CONTRACT IN A SUIT FOR SPECIFIC PERFO RMANCE UNDER CHAPTER IT OF THE SPECIFIC RELIEF ACT, 1877 (1 OF 1877) ... OR AS EVIDENCE OF ANY COLLATERAL TRANSACTION NOT REQUIRED TO BE EFFECTED BY REGISTERED INSTRUMENT.' THE EFFECT OF THE AFORESAID AMENDMENT IS THAT, ON AND AFTER THE COMMENCEMENT OF THE AMENDMENT ACT OF 2001; IF AN AGREEMENT, LIKE THE ID A IN THE PRESENT CASE,IS NOT REGISTERED, THEN IT SHALL HAVE NO EFFECT IN LAW FOR THE PURPOSE S OF SECTION 53A. IN SHORT, THERE IS NO AGREEMENT IN THE EYES OF LAW WHICH CAN BE ENFORCED UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT. THIS BEING THE CASE, WE ARE OF THE VI EW THAT THE HIGH COURT WAS RIGHT IN STATING THAT IN ORDER TO QUALIFY AS A 'TRANSFER' OF A CAPI TAL ASSET UNDER SECTION 2(47)( V) OF THE ACT, THERE MUST BE A 'CONTRACT' WHICH CAN BE ENFORCED IN LAW UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT. A READING OF SECTION 17(LA) AND SECTI ON 49 OF THE REGISTRATION ACT SHOWS THAT IN THE EYES OF LAW, THERE IS NO CONTRACT WHICH CAN BE TAKEN COGNIZANCE OF, FOR THE PURPOSE SPECIFIED IN SECTION 53A THE INCOME-TAX APPELLATE T RIBUNAL WAS NOT CORRECT IN REFERRING TO THE EXPRESSION 11 OF THE NATURE REFERRED TO IN SECT ION 53A' IN SECTION 2(47)(V) IN ORDER TO ARRIVE AT THE OPPOSITE CONCLUSION. THIS EXPRESSION WAS USED BY THE LEGISLATURE EVER SINCE SUB-SECTION V WAS INSERTED BY THE FINANCE ACT OF 19 87, WITH EFFECT FROM APRIL 1, 1988. ALL THAT IS MEANT BY THIS EXPRESSION IS TO REFER TO THE INGREDIENTS OF APPLICABILITY OF SECTION 53A TO THE CONTRACTS MENTIONED THEREIN. IT IS ONLY WHERE T HE CONTRACT CONTAINS ALL THE SIX FEATURES MENTIONED IN SHRIMANT SHAMRAO SURYAVANSHI (SUPRA), THAT THE SECTION APPLIES, AND THIS IS WHAT IS MEANT BY THE EXPRESSION 'OF THE NATURE REFE RRED TO IN SECTION 53A'. THIS EXPRESSION CANNOT BE STRETCHED TO REFER TO AN AMENDMENT THAT W AS MADE YEARS LATER IN 2001, SO AS TO THEN SAY THAT THOUGH REGISTRATION OF A CONTRACT IS REQUIRED BY THE AMENDMENT ACT OF 2001, YET THE AFORESAID EXPRESSION 'OF THE NATURE REFERRED TO IN SECTION 53A' WOULD SOMEHOW REFER ONLY TO THE NATURE OF CONTRACT MENTIONED IN SECTION 53 & WHICH WOULD THEN IN TURN NOT REQUIRE 5 ITA NO. 1245/KOL/2015 MALLIKA INVESTMENT CO. PVT. LTD., AY 2008-09 REGISTRATION. AS HAS BEEN STATED ABOVE, THERE IS NO CONTRACT IN THE EYE OF LAW IN FORCE UNDER SECTION 53A AFTER 2001 UNLESS THE SAID CONTRACT IS REGISTERED. THIS BEING THE CASE, AND IT BEING CLEAR THAT THE SAID JDA WAS NEVER REGISTERED, SINCE THE JDA HAS NO EFFICACY IN THE EYE OF LAW, OBVIOUSLY NO 'TRANSFER' CAN BE SAID TO HAVE TAKEN PLACE UNDER THE AFORESAID DOCUMENT. SINCE WE ARE DECIDING THIS CASE ON HUS LE GAL GROUND, IT IS UNNECESSARY FOR US TO GO INTO THE OTHER QUESTIONS DECIDED BY THE HIGH COU RT, NAMELY, WHETHER UNDER THE JDA POSSESSION WAS OR WAS NOT TAKEN; WHETHER ONLY A LIC ENCE WAS GRANTED TO DEVELOP THE PROPERTY; AND WHETHER THE DEVELOPERS WERE OR WERE N OT READY AND WILLING TO CARRY OUT THEIR PART OF THE BARGAIN. SINCE WE ARE OF THE VIEW THAT SUB-CLAUSE (V) OF SECTION 2(47) OF THE ACT IS NOT ATTRACTED TO THE FACTS OF THIS CASE, WE NEED NO T GO INTO ANY OTHER FACTUAL QUESTION. 5. IN THE FACTS OF THE PRESENT CASE THE ADMITTED FA CT IS THAT THE DOCUMENT IN QUESTION WHICH IS AN AGREEMENT OF ASSIGNMENT OF PROPERTY WHE REIN THE ASSESSEE WHO HAD HELD ONLY THE LEASEHOLD RIGHTS WAS NOT REGISTERED TILL 31.03. 2008. THIS BEING THE FACTUAL POSITION, WE NOTE THAT THE POSITION WHICH EXISTED EARLIER THAT A N AGREEMENT OF SALE WHICH FULFILLED THE INGREDIENTS OF SECTION 53A OF T. P. ACT, 1882 WAS N OT REQUIRED TO BE EXECUTED THROUGH A REGISTERED INSTRUMENT, HAS CHANGED BY THE REGISTRAT ION AND OTHER RELATED LAW (AMENDMENT) ACT 2001. WE NOTE THAT AMENDMENTS WERE MADE SIMULT ANEOUSLY IN SEC. 53A OF T. P. ACT, 1882 AND SECTION 17 AND 49 OF THE INDIAN REGISTRATI ON ACT. BY THE AFORESAID AMENDMENT THE WORDS THE CONTRACT, THOUGH REQUIRED TO BE REGISTERED, HAS NOT BEEN REGISTERED, OR IN SECTION 53A OF T. P. ACT, 1882 HAVE BEEN OMITTED. SIMULTANEOUSLY, SECTION 17 AND 49 OF REGISTRATION ACT, 1908 HAVE BEEN AMENDED, CLARIFYI NG THAT UNLESS THE DOCUMENTS CONTAINING THE CONTRACT TO TRANSFER FOR CONSIDERATION ANY IMMO VABLE PROPERTY (FOR THE PURPOSE OF SEC. 53A OF T. P. ACT, 1882) IS REGISTERED, IT SHALL NOT HAVE ANY EFFECT IN LAW; OTHER THAN FOR BEING RECEIVED AS EVIDENCE OF A CONTRACT FOR SPECIFIC PER FORMANCE OR AS EVIDENCE OF ANY COLLATERAL PROCEEDINGS NOT REQUIRED TO BE EFFECTED BY A REGIST ERED INSTRUMENT. THE EFFECT OF THE AMENDMENT BROUGHT IN BY THE 2001 ACT TO THE REGISTR ATION ACT AS WELL AS THE SIMULTANEOUS AMENDMENT IN SEC. 53A OF THE TRANSFER OF PROPERTY A CT IS THAT ON AND AFTER THE COMMENCEMENT OF THE AMENDMENT ACT OF 2001, IF A CON TRACT FOR TRANSFER IS EXECUTED BUT NOT REGISTERED, THEN IT SHALL HAVE NO EFFECT IN LAW FOR THE PURPOSE OF SEC. 53A OF TRANSFER OF PROPERTY ACT LIKE IN THIS CASE BY NO STRETCH OF IMA GINATION AN AGREEMENT FOR ASSIGNMENT (THE LEASEHOLD RIGHTS) CANNOT BE HELD AS TRANSFER OF AN IMMOVABLE PROPERTY. IN ANY CASE, WE FIND THAT THE INSTRUMENT/DOCUMENT (ASSIGNMENT OF LEASEHO LD RIGHTS) IS NOT REGISTERED, THEN IT SHALL IN NO WAY BE HELD AS TRANSFER BY ROPING IN SECTION 53A OF T. P. ACT, 1882 AS ERRONEOUSLY DONE BY AO, SINCE AFTER THE AMENDMENT ACT 2001, UNL ESS THE DOCUMENT IS REGISTERED HAVE NO 6 ITA NO. 1245/KOL/2015 MALLIKA INVESTMENT CO. PVT. LTD., AY 2008-09 EFFECT IN LAW FOR THE PURPOSE OF SEC. 53A OF TRANSF ER OF PROPERTY ACT. WE NOTE THAT THIS CASE OF ASSESSEE STANDS ON A BETTER FOOTING THAN THAT OF THE CASE DECIDED BY THE HONBLE SUPREME COURT IN BALBIR SINGH MANI (SUPRA). SO, IN ANY EVE NT, SINCE THE AGREEMENT IN QUESTION IS NOT REGISTERED, IN SHORT THERE NO IS AGREEMENT IN THE E YES OF LAW WHICH CAN BE ENFORCED U/S. 53A OF THE TRANSFER OF PROPERTY ACT. THIS BEING THE C ASE, WE ARE OF THE VIEW THAT THE LD. CIT(A) AS WELL AS THE AO ERRED IN REFERRING TO THE EXPRESS ION OF THE NATURE REFERRED TO IN SEC. 53A IN SECTION 2(47)(V) IN ORDER TO ARRIVE AT THE IMPUG NED CONCLUSION , SO WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER. HOWEVER, WE NOTE THAT AN Y PROFIT OR GAIN ARISING FROM THE TRANSFER OF A CAPITAL ASSET IS CHARGEABLE TO TAX UN DER THE HEAD CAPITAL GAIN AND IS DEEMED TO BE THE INCOME OF THE FINANCIAL YEAR IN WHICH THE TR ANSFER TOOK PLACE. AND CAPITAL ASSET IS DEFINED U/S. 2(14) OF THE ACT WHICH MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION. AS HELD BY THE HONBLE KARNATAKA HIGH COURT, THE TERM CAPITAL ASSET HAS AN EMBRACING CONN OTATION AND INCLUDES EVERY KIND OF PROPERTY AS GENERALLY UNDERSTOOD EXCEPT THOSE THAT ARE EXPRESSLY EXCLUDED IN THE DEFINITION. SO TOO, EXPRESSION PROPERTY INCLUDES EVERY CONCEIVA BLE THING, RIGHT OR INTEREST (SYNDICATE BANK LTD. VS. ADDL. CIT (1985) 155 ITR 681 (KAR). A ND SO, IF THE CAPITAL ASSET IS TRANSFERRED AS ENVISAGED UNDER SECTION 2(47) OF THE ACT, THEN IT HAS TO BE TAXED AS PER LAW. SO, IN THE LIGHT OF THE AFORESAID DISCUSSION, WE AR E OF THE CONSIDERED OPINION THAT THE ISSUE OF TAXING THE CONSIDERATION IN RESPECT OF ASSIGNMENT O F LEASEHOLD RIGHTS NEED TO BE DE NOVO CARRIED OUT BY THE AO UNTRAMMELED BY THE FINDING/OB SERVATIONS [SUPRA] AND OF THE LD. CIT(A) WHILE DECIDING THE APPEAL OF THE ASSESSEE. NEEDLESS TO SAY, OPPORTUNITY TO BE GRANTED TO THE ASSESSEE BEFORE PASSING A SPEAKING O RDER IN ACCORDANCE TO LAW. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH DECEMBER, 2018. SD/- SD/- (M. BALAGANESH) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH DECEMBER, 2018 JD.(SR.P.S.) 7 ITA NO. 1245/KOL/2015 MALLIKA INVESTMENT CO. PVT. LTD., AY 2008-09 COPY OF THE ORDER FORWARDED TO: 1 APPELLANT MALLIKA INVESTMENT CO. PVT. LTD. 10, OL D POST OFFICE STREET, ROOM NO. 113, TOP FLOOR, KOLKATA-700 001. 2 RESPONDENT ITO, WARD-4(2), KOLKATA. 3 4 5 CIT(A)-2, KOLKATA . (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY