The Dy. Commissioner of Income Tax, Circle-2(2), Ahmedabad V. Shri Vishnubhai Vithalbhai Patel(HUF), Ahmedabad

ITA 1605/AHD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4947 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 15-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: S N DIVATIA
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Set aside
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ITA NO. 1605/AHD/2016 ( / ASSESSMENT YEAR : 2012-13) THE DCIT CIRCLE 2(2) AHMEDABAD / VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) 101, SHANTI ARCADE NR.AKASH-III, 132 FT RING ROAD NARANPURA, AHMEDABAD-380 013 ./ ./ PAN/GIR NO. : AACHP 5059 A ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI L.P.JAIN, SR.DR / RESPONDENT BY : SHRI S.N. DIVATIA, AR / DATE OF HEARING 06/03/2019 !'# / DATE OF PRONOUNCEMENT 23/05/2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS)4, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-4 /468/ACIT/CIR- 2(2)/15-16 DATED 13/04/2016 ARISING IN THE ASSES SMENT ORDER PASSED UNDER S.143(3) R.W.S.147 OF THE INCOME TAX ACT, 196 1(HEREINAFTER REFERRED TO AS 'THE ACT') DATED 29/01/2015 RELEVANT TO ASSESSMENT YEAR (AY) 2012-13. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 2 - 1. THE LDF.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE DISALLOWANCE MADE BY THE AO IN RESPECT OF SHORT TER M CAPITAL GAIN OF RS.1,23,57,940/-, WITHOUT PROPERLY APPRECIA TING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECOR D; 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASS ESSING OFFICER; 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.C IT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT; 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GR OUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. THE ISSUE RAISED BY THE REVENUE IS THAT THE LD. CIT (A) ERRED IN DELETING THE ADDITION MADE BY THE AO FOR A SUM OF RS. 1,23,5 7,940/- UNDER THE HEAD CAPITAL GAIN. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A HUF AND DERIVING ITS INCOME FROM HOUSE PROPERTY, CAPITAL GAIN, AND OTHER SOURCES. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION DECLARED S HORT TERM CAPITAL GAIN (IN SHORT STCG) AMOUNTING TO RS. 32,34,190/- I N ITS RETURN OF INCOME ON THE TRANSFER OF THE AGRICULTURE LAND TO U TTAR GUJARAT BARGAM KAVDA PATIDAR SAMAJ (FOR SHORT UGBKPS) FOR A CONSID ERATION OF RS. 44,75,000/- ONLY. THE ASSESSEE FURTHER SUBMITTED THAT IT HAD TRANSFER RED THE SAID AGRICULTURE LAND IN TWO PARTS TO THE SAME PARTY AS MENTIONED AB OVE. FIRST, PART WAS TRANSFERRED IN A.Y. 2010-11, AND ANOTHER PART WAS T RANSFERRED IN A.Y. 2012-13. THE ASSESSEE TRANSFERRED THE SAID LAND THR OUGH AN IRREVOCABLE GENERAL POWER OF ATTORNEY DATED 21/07/2010 AND 28/0 3/2012 FOR A ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 3 - CONSIDERATION OF RS. 7,75,000/- AND RS. 37,00,000/- RESPECTIVELY. AS THE ASSESSEE TRANSFERRED THE SAID LAND BY IRREVOCABLE P OWER OF ATTORNEY, THEREFORE IT TREATED THE SAID TRANSFER WAS MADE AS PER THE PROVISION OF SECTION 2(47)(VI) OF THE INCOME TAX ACT. THE AMOUNT OF STAMP DUTY ON THE REGISTRATION OF IRREVOCABLE POWER OF ATTORNEY W ITH SUB-REGISTRAR WAS ALSO PAID. THE ASSESSEE FURTHER SUBMITTED THAT THE SAID AGRICU LTURE LAND BEARING SURVEY NO. 934 ADMEASURING 2428 SQ.MTS SITUATED AT VILLAGE UNVARSAD WAS PURCHASED FOR A CONSIDERATION OF RS. 10,00,000/- WH ICH WAS PAID IN TWO PARTS ON 19/03/2010 & 20/03/2010 THROUGH CHEQUES AN D CASH RESPECTIVELY. AFTER THAT, THE CONVEYANCE DEED WAS R EGISTERED ON 13/04/2010. THE ASSESSEE INCURRED THE TOTAL COST FO R THE ACQUISITION OF THE AGRICULTURE LAND AMOUNTING TO RS. 10,63,950/- INCLU DING STAMP DUTY, REGISTRATION FEES & OTHER LEGAL EXPENSES. THE ASSESSEE ACCORDINGLY RECOGNIZES THE CAPITAL GAI N ON SALE OF AGRICULTURE LAND IN TWO ASSESSMENT YEARS. FIRSTLY O N THE TRANSFER OF 1365 SQ.MTRS IN A.Y. 2010-11 AND ANOTHER SECONDLY ON THE TRANSFER OF 1063 SQ.MTRS IN A.Y. 2012-13. THE WORKINGS OF STCG IN TWO ASSESSMENT YEARS ARE DE TAILED AS UNDER: PARTICULARS A.Y. 2010-11 A.Y.2012-13 TOTAL (RS) SALE CONSIDERATION 775000 3700000 44,75,000 LESS: COST OF ACQUISITION 598140 465810 10,63,950 ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 4 - SHORT TERM CAPITAL GAIN 176860 3234190 34,11,050 THE ASSESSEE ALSO SUBMITTED THAT THE SAID AGRICULTU RE LAND WAS TRANSFERRED IN TWO PARTS AS DESIRED BY THE BUYER AS DISCUSSED A BOVE. HOWEVER, THE AO AFTER CONSIDERING THE SUBMISSION O F THE ASSESSEE WAS OF THE VIEW THAT POWER OF ATTORNEY IS NOT AN INSTRU MENT OF TRANSFER FOR RIGHT, TITLE OR INTEREST IN IMMOVABLE PROPERTY. AS SUCH THE POA IS A CREATION OF AGENCY WHERE GRANTOR AUTHORIZES TO GUAR ANTEE TO DO SOME ACTS ON BEHALF OF THE GRANTOR. SIMILARLY, THE IRREVOCABL E POWER OF ATTORNEY IS ALSO SUBJECT TO THE SAME PARAMETER. THEREFORE THE A O HELD THAT POA IS NOT A VALID INSTRUMENT TO TRANSFER THE OWNERSHIP. T HE AO REGARDING THIS PLACED RELIANCE ON THE JUDGMENT OF HONBLE SC IN TH E CASE SURAJ LAMP PVT LTD V/S STATE OF HARYANA AND OTHERS REPORTED IN 14 TAXMANN.COM 103. IN VIEW OF THE ABOVE, THE AO CONCLUDED THAT THE TRA NSFER OF IMMOVABLE PROPERTY COULD NOT TAKE PLACE THROUGH THE IRREVOCAB LE POA. AS SUCH THE AO CONSIDERED THE TRANSFER OF SUCH LAND BY TAKING T HE DATE WHEN THE SALE DEED OF THE ENTIRE LAND WAS EXECUTED (I.E., 19/04/2 012) AND ACCORDINGLY CONSIDERED THE JANTRI VALUE AS ON THE DATE SALE DEE D. THEREFORE THE AO ACCORDINGLY BY APPLYING THE PROVISION OF SECTION 50 C OF THE ACT, CONSIDERED THE TRANSACTION VALUE OF THE PROPERTY OF RS. 1,66,56,080/- AS PROVIDED IN THE JANTRI VALUE SUBMITTED BY THE SUB-R EGISTRAR INSTEAD OF RS. 44,75,000/- AS CLAIMED BY THE ASSESSEE. ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 5 - THE AO BY APPLYING THE PROVISION OF SECTION 50C OF THE ACT HAS TAKEN THE TRANSACTION VALUE/SALE CONSIDERATION OF RS. 1,6 6,56,080/- AS THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY. TH US THE AO RE- COMPUTED THE STCG ON THE WHOLE OF THE AGRICULTURE L AND IN A.Y.2012-13 BY PRESUMING THAT THE LAND WAS TRANSFERRED IN A.Y.2 012-13 WHICH COMES TO RS. 1,23,57,940/- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. THE AGGRIEVED ASSESSEE PREFERRED AN APPEAL BE FORE THE LD. CIT (A). THE ASSESSEE BEFORE THE LD. CIT (A) BESIDES THE SUB MISSION MADE BEFORE THE AO, FURTHER SUBMITTED THAT IT HAD RIGHTLY DECLA RED THE STCG IN TWO YEARS AS THE TRANSFER WAS CONSIDERED WITHIN THE MEA NING OF THE PROVISION OF SECTION 2(47)(VI) OF THE INCOME TAX ACT. THE ASSESSEE ALSO CLAIMED THAT THE IRREVOCABLE POWE R OF ATTORNEY WAS EXECUTED ALONG WITH THE PAYMENT OF CONSIDERATION RE CEIVED SO THAT THE IRREVOCABLE RIGHT IN THE PROPERTY WAS CREATED IN FA VOR OF THE PURCHASER. THE ASSESSEE FURTHER SUBMITTED THAT THE VALUE ADOPT ED BY THE AO FOR SALE CONSIDERATION BY APPLYING THE PROVISION OF SECTION 50C WAS ERRONEOUS AS THE PROVISION OF SECTION 50C OF THE ACT WILL BE APP LICABLE WHERE THE CONSIDERATION IS DIFFERENT FROM THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY. BUT IN THE CASE ON HAND, THERE WAS NO SU CH DIFFERENCE IN VALUATION WHEN A POWER OF ATTORNEY WAS REGISTERED O N THE PAYMENT OF STAMP DUTY. ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 6 - THE ASSESSEE ALSO SUBMITTED THAT THE VALUATION MADE BY THE STAMP DUTY AUTHORITY WAS IN RESPECT OF AGRICULTURE LAND TRANSF ERRED TO NON- AGRICULTURIST. HOWEVER, LD. CIT (A) WAS OF THE VIEW THAT IF THE DA TE OF SALE DEED AS RECORDED BY THE AO, I.E. 19-04-2012 IS TAKEN THE DA TE OF TRANSFER, THEN THE STCG WOULD BE ASSESSABLE BY THE AO IN THE A.Y. 2013 -14 RATHER THAN IN THE A.Y. 2012-13. THEREFORE THE LD. CIT (A) GIVEN T HE ABOVE FACTS DELETED THE ADDITION MADE BY THE AO IN THE A.Y. 201 2-13. HOWEVER, LD. CIT (A) IN RESPECT OF THE TRANSFER OF THE LAND REFERRED TO THE PROVISION OF SECTION 2(47)(VI) OBSERVED THAT THE TR ANSACTION SUCH AS THE AGREEMENT AND/OR ARRANGEMENT BY WAY OF EXECUTION OF AN AGREEMENT OF BECOMING A MEMBER OR TRANSFERRING ENJOYMENT OF THE IMMOVABLE PROPERTY ETC. IS VALID TRANSFER. ACCORDINGLY, THE I NCOME ACCRUED TO ASSESSEE ON THE TRANSFER OF THE LAND ON THE EXECUTI ON OF POA IS A VALID TRANSFER. THUS THE LD. CIT (A) WAS OF THE VIEW THAT THE TRANSFER OF IMMOVABLE PROPERTY THROUGH POWER OF ATTORNEY IS ALS O COVERED UNDER THE DEFINITION OF SECTION 2(47) OF THE INCOME TAX ACT. THEREFORE THE LD. CIT (A) REJECTED THE CONTENTION OF THE AO THAT IRREVOCA BLE POWER OF ATTORNEY ARE NOT A VALID INSTRUMENT TO TRANSFER THE RIGHT IN IMMOVABLE PROPERTY. AGGRIEVED BY THE ORDER OF THE LD. CIT (A) REVENUE I S IN APPEAL BEFORE US. 5. THE LD. DR BEFORE US SUBMITTED VEHEMENTLY SUPP ORTED THE ORDER OF THE AO. ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 7 - 6. ON THE OTHER HAND, THE LD. AR BEFORE US FILED A PAPER BOOK CONTAINING PAGES FROM 1 TO 238 AND REITERATED THE S UBMISSION AS MADE BEFORE THE LD. CIT-A AND VEHEMENTLY SUPPORTED HIS O RDER. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH T HE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES TO THE TRANSFER OF AGRICULTURE LAND BY THE ASSESSEE TH ROUGH AN IRREVOCABLE GENERAL POWER OF ATTORNEY. AS PER THE ASSESSEE, THE TRANSFER OF THE LAND THROUGH THE POA IS A VALID TRANSFER. BUT THE AO CON SIDERED THE SALE DEED AS A TRANSFER INSTRUMENT WHICH WAS EXECUTED ON 19-0 4-2012. THUS THE AO INVOKED THE PROVISION OF SECTION 50C AND ACCORDINGL Y TOOK THE SALE VALUE AS THE VALUATION MADE BY THE VALUATION AUTHORITY TO COMPUTE THE STCG. AFTER THAT THE AO MADE THE ADDITION TO THE TOTAL IN COME OF THE ASSESSEE IN THE A.Y.2012-13. HOWEVER THE LD. CIT (A) DELETED TH E ADDITION MADE BY THE AO BY OBSERVING THAT THE STCG SHOULD BE ASSESSA BLE IN THE A.Y.2013-14 INSTEAD OF 2012-13. THE LD. CIT (A) ALS O HELD THAT THE TRANSFER OF THE PROPERTY THROUGH IRREVOCABLE POWER OF ATTORNEY AS A VALID INSTRUMENT FOR TRANSFER OF IMMOVABLE PROPERTY IN TE RMS OF THE PROVISION OF SECTION 2(47)(VI) OF THE ACT. FROM THE PRECEDING DISCUSSION, THE ISSUES THAT EMER GE FOR OUR ADJUDICATION IS DETAILED AS UNDER: I. WHETHER THE ASSESSEE TRANSFERRED THE IMPUGNED LAND ON THE DATE OF SALE DEED, I.E. 19 TH APRIL 2012 AS HELD BY THE AO. ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 8 - II. WHETHER THE TRANSFER OF THE PROPERTY IS VALID BY WA Y OF EXECUTING IRREVOCABLE POWER OF ATTORNEY WHETHER THE IMPUGNED LAND WAS TRANSFERRED BY THE AS SESSEE ON THE DATE OF SALE DEED, I.E. 19 TH APRIL 2012 AS HELD BY THE AO. AT THE OUTSET, WE NOTE THAT AO HIMSELF IN HIS ORDER HAS TAKEN THE OF SALE DEED, I.E. 19 TH APRIL 2012 AS THE DATE OF TRANSFER OF THE IMPUGNED LAND. THUS AS PER THE AO CAPITAL GAIN ON THE TRANSF ER OF SUCH LAND IS TAXABLE IN THE FINANCIAL YEAR 2012-13 CORRESPONDING TO THE AY 2013- 14. BUT THE AO HAS COMPUTED THE CAPITAL GAIN ON THE SALE OF SUCH LAND IN THE YEAR UNDER CONSIDERATION WHICH GOES AGAINST THE FINDING OF THE AO. IN OUR CONSIDERED VIEW, ONCE THE AO HAS TAKEN T HE DATE OF TRANSFER AS 19 TH APRIL 2012, THEN THE QUESTION OF DETERMINING THE CAPITAL GAIN FOR THE YEAR UNDER CONSIDERATION THE N OT ARISE. THE LD. DR HAS ALSO NOT BROUGHT ANYTHING ON RECORD CONTRARY TO THE FINDING OF THE LD. CIT-A. HENCE WE DO NOT FIND ANY INFIRMITY IN TH E FINDING OF THE LEARNED CIT (A) REGARDING THE DATE OF TRANSFER OF T HE LAND AS DISCUSSED ABOVE. WHETHER THE TRANSFER OF THE PROPERTY IS VALID BY WA Y OF EXECUTING IRREVOCABLE POWER OF ATTORNEY A POWER OF ATTORNEY (POA) OR LETTER OF ATTORNEY IS A WRITTEN AUTHORIZATION TO REPRESENT OR ACT ON ANOTHER'S BEHA LF IN PRIVATE AFFAIRS, BUSINESS, OR SOME OTHER LEGAL MATTER. THE PERSON AU THORIZING THE OTHER TO ACT IS THE PRINCIPAL, GRANTOR, OR DONOR (OF THE POWER). THE ONE AUTHORIZED TO ACT IS THE AGENT , ATTORNEY. NOW THE QUESTION ARISES WHETHER A POWER OF ATTORNEY EXECUTED BY THE ASSESSE E WILL AMOUNT TO ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 9 - TRANSFER UNDER THE PROVISIONS OF SECTION 2(47) OF T HE ACT. IN THIS REGARD, WE NOTE THAT THE HONBLE SUPREME COURT IN T HE CASE OF SURAJ LAMP INDUSTRIES PVT. LTD. VS STATE OF HARYANA REPOR TED IN 14 TAXMANN.COM 103 HAS HELD AS UNDER: A POWER OF ATTORNEY IS NOT AN INSTRUMENT OF TRANSF ER IN REGARD TO ANY RIGHT, TITLE OR INTEREST IN AN IMMOVABLE PROPER TY. THE POWER OF ATTORNEY IS CREATION OF AN AGENCY WHEREBY THE GRANT OR AUTHORIZES THE GRANTEE TO DO THE ACTS SPECIFIED THEREIN ON BEH ALF OF GRANTOR, WHICH WHEN EXECUTED WILL BE BINDING ON THE GRANTOR AS IF DONE BY HIM. IT IS REVOCABLE OR TERMINABLE AT ANY TIME UNLE SS IT IS MADE IRREVOCABLE IN A MANNER KNOWN TO LAW. EVEN AN IRREV OCABLE ATTORNEY DOES NOT HAVE THE EFFECT OF TRANSFERRING T ITLE TO THE GRANTEE. FROM THE ABOVE JUDGMENT, THERE REMAINS NO DOUBT THA T THE TRANSFER OF PROPERTY BASED ON THE POA IS NOT A VALID TRANSFER. REGARDING THE JUDGMENT AS RELIED UPON BY THE LD. CI T-A IN THE CASE OF PACE DEVELOPERS AND PROMOTERS PVT. LTD. REPORTED IN 215 TAXMANN.COM 554; WE NOTE THAT THE FACTS ARE NOT RELATED TO THE ISSUE IN HAND. THE ISSUE BEFORE THE HONBLE DELHI HIGH COURT WAS ABOUT THE R EGISTRATION OF A POWER OF ATTORNEY EXECUTED BY THE PARTY. IN THAT CO NTEXT, THE JUDGMENT WAS DELIVERED BY THE HONBLE DELHI HIGH COURT AFTER REFERRING TO THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF SU RAJ LAMP INDUSTRIES PVT. LTD. (SUPRA). A S SUCH THERE WAS NO ISSUE REGARDING THE TRANSFER OF THE PROPERTY UNDER THE INCOME TAX ACT FOR WORKING OUT T HE TAX LIABILITY UNDER THE HEAD CAPITAL GAIN. THUS WE ARE RELUCTANT TO PLA CE OUR RELIANCE ON THE ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 10 - JUDGMENT OF HONBLE DELHI HIGH COURT IN THE GIVEN F ACTS AND CIRCUMSTANCES. AT THIS JUNCTURE, WE ALSO FIND IMPORTANT TO REFER T HE RELEVANT PROVISIONS (BOLD LETTERS) OF SECTION 2(47)(VI) OF THE ACT WHICH READS AS UND ER: 47) 88 ['TRANSFER' 89 , IN RELATION TO A CAPITAL ASSET, INCLUDES, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX (VI) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMBE R 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) WHIC H HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYME NT OF, ANY IMMOVABLE PROPERTY . A PLAIN READING OF THE ABOVE PROVISION REVEALS THAT ANY AGREEMENT OR ARRANGEMENT ENABLING THE TRANSFER OR ENJOYMENT OF T HE PROPERTY WILL BE TREATED AS A TRANSFER TO COMPUTE THE CAPITAL GAIN. THUS FROM THE ABOVE PROVISION, IT APPEARS THAT POWER OF ATTORNEY SHALL ALSO BE TREATED AS A TRANSFER FOR WORKING OUT THE CAPITAL GAIN TAX. HOWE VER, WE NOTE THAT THE JUDGMENT OF THE HONBLE SUPREME COURT IS DIRECTLY O N THE ISSUE AS DISCUSSED ABOVE WHICH STANDS COVERED AGAINST THE AS SESSEE. THEREFORE RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SURAJ LAMP INDUSTRIES PVT. LTD. (SUPRA), WE HOLD THAT THERE WAS NO TRANSFER OF THE LAND UPON THE EXECUTION OF POWER OF ATTORNEY IN FAVOR OF THE PARTY. THUS THE TRANSACTION FOR THE TRANSFER OF PROPERTY HAS NOT BEEN ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 11 - AFFECTED IN THE ASSESSMENT YEARS 2010-11 AND 2012-1 3 AS CLAIMED BY THE ASSESSEE UPON THE EXECUTION OF POWER OF ATTORNEY. A CCORDINGLY, WE DECIDE THE ISSUE AGAINST THE ASSESSEE. BEFORE PARTING, WE HOLD THAT THERE WAS NO TRANSFER OF THE IMPUGNED PROPERTY IN THE YEAR UNDER CONSIDERATION AS ALLEGED BY THE AO. IT IS BECAUSE THE SALE DEED WAS REGISTERED AS ADMITTED BY THE AO ON 19 APRIL 2012 I.E. FINANCIAL YEAR 2012-13 CORRESPONDING TO A SSESSMENT YEAR 2013- 14. HENCE THERE CANNOT BE ANY ADDITION TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF CAPITAL GAIN FOR THE YEAR UNDER CONSI DERATION. THE PROVISION OF SECTION 45 OF THE ACT REQUIRES TO TAX THE INCOME IN THE YEAR OF TRANSFER OF THE PROPERTY. IN VIEW OF THE ABOVE, THE CAPITAL GAIN INCOME ON TH E SALE OF THE LAND CANNOT BE TAXED IN THE YEAR UNDER CONSIDERATION. AC CORDINGLY, WE REVERSE THE ORDER OF THE LD. CIT-A AND DIRECT THE AO TO DEL ETE THE ADDITION MADE HIM. HENCE THE GROUND OF APPEAL OF THE REVENUE IS P ARTLY ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 23/05/2019 SD/- SD/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 23/05/2019 &.., .(.. / T.C. NAIR, SR. PS ITA NO.1605/AHD/2016 DCIT VS. SHRI VISHNUBHAI VITHALBHAI PATEL (HUF) ASST .YEAR - 2012-13 - 12 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-4, AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) $%, / ITAT, AHMEDABAD 1. DATE OF DICTATION 14.5.19 (WORD PROCESSED BY HON BLE AM IN HIS COMPUTER BY DRAGON) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 17.5.19 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.23.5.2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.5.2019 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER