Dr. Raghib Husnain, Kolkata V. ITO, WD-55(3), KOLKATA, Kolkata

ITA 17/KOL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2776 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-08-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANDEEP LAKRA
• Assessee Lawyers: V N DATTA
• Keywords: Capital asset; Salary income
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER) I.T.A. NO. 17/KOL/2016 ASSESSMENT YEAR: 2009-10 DR. RAGHIB HUSNAIN...............APPELLANT 12, ABDUL HALIM LANE KOLKATA 700 016 [PAN : AARPH 4694 R] VS. INCOME TAX OFFICER, WARD-55(3), KOLKATA............RESPONDENT APPEARANCES BY: SHRI V.N. DATTA, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SANDEEP LAKRA, JCIT, D/R APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 22 ND , 2019 DATE OF PRONOUNCING THE ORDER : AUGUST 30 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 6, (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 27/11/2015, FOR THE ASSESSMENT YEAR 2009- 10. 2. THE FACTS OF THE CASE, AS GIVEN BY THE ASSESSEE IN THE STATEMENT OF FACTS BEFORE THE LD. CIT(A) ALONG WITH FROM NO. 35 IS EXTRACTED FOR READY REFERENCE:- THE ASSESSEE IS A MEDICAL PROFESSION DERIVES INCOME FROM SALARY, HOUSE PROPERTY, OTHER SOURCE, AGRICULTURE INCOME AND LONG TERM CAPITAL GAIN. THE RETURN WAS FILED ON 30.03.2010 DECLARING THE TAXABLE INCOME AT RS.9,54,700/- THE ASSESSEE OFFICER MISCONCEIVED AND MISPLACED THE REAL FACT IN DETERMINING THE LONG TERM CAPITAL DECLARED BY THE ASSESSEE IN THE RETURN RESULTING IN BIFURCATION THE LONG TERM CAPITAL INTO LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL GAIN. THE BRIEF FACT THAT THE ASSESSEE HAD CONTACTED WITH SRI NARENDRA KUMAR DUGGAR FOR PURCHASING THE LAND SITUATED AT 53 HAZRA ROAD, KOLKATA AND HAD TAKEN ALL THE INTEREST, RIGHT & TITLE BY AGREEMENT ON 29.06.2004. SRI NARENDRA KUMAR DUGGAR HAD ACQUIRED ALL THE RIGHT, TITLE AND INTEREST FROM THE FIVE OWNERS (SRI AJIT KUMAR DAS, BIJIT KUMAR DAS AND OTHERS) OF THE UNDIVIDED PROPERTY SITUATED AT 53 HAZRA ROAD, KOLKATA BY AN AGREEMENT OF SALE ON 28.08.1988 & 27.12.1989. SRI NARENDRA KUMAR DUGGAR HAD NO OPTION BUT TO FILE A SUIT INTERALIA OR SPECIFIC PERFORMANCE FOR SAID AGREEMENT FOR SALE AND OTHER CONSEQUENTIAL RELIEF IN THE YEAR 1991 FOR COMPLETING THE TRANSACTION AS PER SAID AGREEMENT FOR SALE AND THE SAID SUIT WAS THE TITLE SUIT NO 12 OF 1991. THE MATTER WAS STILL PEND ACQUIRING RIGHT, TITLE AND INTEREST OF THE ABOVE SAID PROPERTY ON 29.06.2004 BY THE ASSESSEE FROM SRI NARENDRA KUMAR DUGGAR. IN SPITE OF MATTER PENDING THE ABOVE SUIT BEFORE THE CIVIL COURT, THE ONE OF THE FIVE KUMAR DAS HAD ILLEGALLY TRANSFERRED HIS 1 INTEREST TO SRI BRAJA BALLAV PAUL ON 8.12.2004 AND AS SUCH THE SAID TRANSFERRED OF RIGHT, TITLE AND INTEREST WAS ILLEGAL AND VOID. FURTHER UNDIVIDED RIGHT, TITLE AND INTEREST WHICH WAS ALREADY KUMAR DUGGAR CANNOT CREATE NEW THINGS BY TRANSFERRING TO ANOTHER PERSON WITHOUT CANCELLING THE AGREEMENT WITH THE CONCERN PARTIES AND THE ORDER OF THE COURT PARTICULARLY WHEN THE SUIT WAS FILED AND WAS PENDING. THE AS SESSEE AS WELL AS SRI BRAJA BALLAV PAUL HAD NO OPTION TO AVOID FURTHER LITIGATION THE ASSESSEE HAD TO MADE FURTHER PAYMENT TO SRI BRAJA BALLAV PAUL ON 9.06.2006 IN ADDITION TO CAUTION KUMAR DUGGAR AND ACCORDINGLY THE DEED TRANSACTION ON THE FACT AND CIRCUMSTANCES IS LONG TERM CAPITAL GAIN AND THE GAIN ARISING OUT OF THAT TRANSACTION WOULD BE TREATED AS LONG TERM CAPITAL GAIN. THE ASSESSEE SOLD THE ABOVE SAID PROPERTY ON 28.04.2008 AND ACCORDINGLY THE ASSESSEE HAD DECLARED THE INCOME AS LONG TERM CAPITAL GAIN AS WELL AS THE EXPENSES WAS MADE SINCE AS PER TRANSFER OF PROPERTY ACT OWNERSHIP IN THE PROPERTY WAS TRANSFERRED IN THE NAME OF THE ASSESSEE ON THE DATE OF THE CONTRACT IS MADE I.E. ON 29.06.2 THE CONSIDERATION OR WILLING TO PERFORM HIS PART OF THE CONTRACT. BEING AGGRIEVED BY THE ORDER THE PRESENT APPEAL IS PREFERRED. 3. THE ASSESSING OFFICER IN HIS ORDER PASSED U/S 143(3) OF THE ACT ON 30/3/2011, HAS REFUSED TO TAKE THE DATE OF 29/06/2004, THAT IS THE DATE OF SALE AGREEMENT, AS THE DATE OF PURCHASE OF PROPERTY. HE TOOK THE DEED OF CONVEYANCE, DT. 12/06/2006, AS THE DATE OF ACQUISITION. AS THE DATE OF SALE WAS 24/08/2008, THE ASSESSING OFFICER CAM CONCLUSION THAT THE GAIN IN QUESTION IS A SHORT TERM CAPITAL GAIN. ON APPEAL, THE LD. FIRST APPELLATE AUTHORITY, UPHELD THE ORDER OF THE ASSESSING OFFICER. 4. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD. COUNSEL FOR THE ASSESSEE, BEFORE A) THE CAPITAL ASSET BEING A HOUSE PROPERTY WAS TRANSFERRED BY AGREEMENT OF SALE DT. 29/06/2004 AND POSSESSION THEREIN WAS ALSO DELIVERED TO THE ASSESSEE ON 29/06/2004. IT WAS SUBSEQUENTLY ON 12 2 COMPLETING THE TRANSACTION AS PER SAID AGREEMENT FOR SALE AND THE SAID SUIT WAS THE TITLE SUIT NO 12 OF 1991. THE MATTER WAS STILL PEND ING AT THE TIME ACQUIRING RIGHT, TITLE AND INTEREST OF THE ABOVE SAID PROPERTY ON 29.06.2004 BY THE ASSESSEE FROM SRI NARENDRA KUMAR DUGGAR. IN SPITE OF MATTER PENDING THE ABOVE SUIT BEFORE THE CIVIL COURT, THE ONE OF THE FIVE CO- OWNERS SRI AJIT HAD ILLEGALLY TRANSFERRED HIS 1 / 5TH UNDIVIDED RIGHT, TITLE AND INTEREST TO SRI BRAJA BALLAV PAUL ON 8.12.2004 AND AS SUCH THE SAID TRANSFERRED OF RIGHT, TITLE AND INTEREST WAS ILLEGAL AND VOID. FURTHER UNDIVIDED RIGHT, TITLE AND INTEREST WHICH WAS ALREADY TRANSFERRED TO SRI NARENDRA KUMAR DUGGAR CANNOT CREATE NEW THINGS BY TRANSFERRING TO ANOTHER PERSON WITHOUT CANCELLING THE AGREEMENT WITH THE CONCERN PARTIES AND / THE ORDER OF THE COURT PARTICULARLY WHEN THE SUIT WAS FILED AND WAS PENDING. SESSEE AS WELL AS SRI BRAJA BALLAV PAUL HAD NO OPTION TO AVOID FURTHER LITIGATION THE ASSESSEE HAD TO MADE FURTHER PAYMENT TO SRI BRAJA BALLAV PAUL ON 9.06.2006 IN ADDITION TO CAUTION MONEY PAYMENT MADE BY SRI NARENDRA KUMAR DUGGAR AND ACCORDINGLY THE DEED WAS MADE. HENCE THE ENTIRE TRANSACTION ON THE FACT AND CIRCUMSTANCES IS LONG TERM CAPITAL GAIN AND THE GAIN ARISING OUT OF THAT TRANSACTION WOULD BE TREATED AS LONG TERM CAPITAL GAIN. THE ASSESSEE SOLD THE ABOVE SAID PROPERTY ON 28.04.2008 AND THE ASSESSEE HAD DECLARED THE INCOME AS LONG TERM CAPITAL GAIN AS WELL AS THE EXPENSES WAS MADE SINCE AS PER TRANSFER OF PROPERTY ACT OWNERSHIP IN THE PROPERTY WAS TRANSFERRED IN THE NAME OF THE ASSESSEE ON THE DATE OF THE CONTRACT IS MADE I.E. ON 29.06.2 004 AND THE TRANSFEREE HAS PAID THE CONSIDERATION OR WILLING TO PERFORM HIS PART OF THE CONTRACT. BEING AGGRIEVED BY THE ORDER THE PRESENT APPEAL IS PREFERRED. THE ASSESSING OFFICER IN HIS ORDER PASSED U/S 143(3) OF THE ACT ON 30/3/2011, HAS REFUSED TO TAKE THE DATE OF 29/06/2004, THAT IS THE DATE OF SALE AGREEMENT, AS THE DATE OF PURCHASE OF PROPERTY. HE TOOK THE DEED OF CONVEYANCE, DT. 12/06/2006, AS THE DATE OF ACQUISITION. AS THE DATE OF SALE WAS 24/08/2008, THE ASSESSING OFFICER CAM CONCLUSION THAT THE GAIN IN QUESTION IS A SHORT TERM CAPITAL GAIN. ON APPEAL, THE LD. FIRST APPELLATE AUTHORITY, UPHELD THE ORDER OF THE ASSESSING OFFICER. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE, BEFORE US, SUBMITTED AS FOLLOWS: THE CAPITAL ASSET BEING A HOUSE PROPERTY WAS TRANSFERRED BY AGREEMENT OF SALE DT. 29/06/2004 AND POSSESSION THEREIN WAS ALSO DELIVERED TO THE ASSESSEE ON 29/06/2004. IT WAS SUBSEQUENTLY ON 12 TH JANUARY, 2006, THAT I.T.A. NO. 17/KOL/2016 ASSESSMENT YEAR: 2009-10 DR. RAGHIB HUSNAIN COMPLETING THE TRANSACTION AS PER SAID AGREEMENT FOR SALE AND THE SAID SUIT ING AT THE TIME ACQUIRING RIGHT, TITLE AND INTEREST OF THE ABOVE SAID PROPERTY ON 29.06.2004 BY THE ASSESSEE FROM SRI NARENDRA KUMAR DUGGAR. IN SPITE OF MATTER PENDING OWNERS SRI AJIT 5TH UNDIVIDED RIGHT, TITLE AND INTEREST TO SRI BRAJA BALLAV PAUL ON 8.12.2004 AND AS SUCH THE SAID TRANSFERRED OF RIGHT, TITLE AND INTEREST WAS ILLEGAL AND VOID. FURTHER UNDIVIDED TRANSFERRED TO SRI NARENDRA KUMAR DUGGAR CANNOT CREATE NEW THINGS BY TRANSFERRING TO ANOTHER PERSON WITHOUT CANCELLING THE AGREEMENT WITH THE CONCERN PARTIES AND / OR WITHOUT THE ORDER OF THE COURT PARTICULARLY WHEN THE SUIT WAS FILED AND WAS PENDING. SESSEE AS WELL AS SRI BRAJA BALLAV PAUL HAD NO OPTION TO AVOID FURTHER LITIGATION THE ASSESSEE HAD TO MADE FURTHER PAYMENT TO SRI BRAJA BALLAV PAUL MONEY PAYMENT MADE BY SRI NARENDRA WAS MADE. HENCE THE ENTIRE TRANSACTION ON THE FACT AND CIRCUMSTANCES IS LONG TERM CAPITAL GAIN AND THE GAIN ARISING OUT OF THAT TRANSACTION WOULD BE TREATED AS LONG TERM CAPITAL GAIN. THE ASSESSEE SOLD THE ABOVE SAID PROPERTY ON 28.04.2008 AND THE ASSESSEE HAD DECLARED THE INCOME AS LONG TERM CAPITAL GAIN AS WELL AS THE EXPENSES WAS MADE SINCE AS PER TRANSFER OF PROPERTY ACT OWNERSHIP IN THE PROPERTY WAS TRANSFERRED IN THE NAME OF THE ASSESSEE ON THE 004 AND THE TRANSFEREE HAS PAID THE ASSESSING OFFICER IN HIS ORDER PASSED U/S 143(3) OF THE ACT ON 30/3/2011, HAS REFUSED TO TAKE THE DATE OF 29/06/2004, THAT IS THE DATE OF SALE AGREEMENT, AS THE DATE OF PURCHASE OF PROPERTY. HE TOOK THE DEED OF CONVEYANCE, DT. 12/06/2006, AS THE DATE OF ACQUISITION. AS THE DATE OF SALE WAS 24/08/2008, THE ASSESSING OFFICER CAM E TO A CONCLUSION THAT THE GAIN IN QUESTION IS A SHORT TERM CAPITAL GAIN. ON APPEAL, THE LD. FIRST US, SUBMITTED AS FOLLOWS: - THE CAPITAL ASSET BEING A HOUSE PROPERTY WAS TRANSFERRED BY AGREEMENT OF SALE DT. 29/06/2004 AND POSSESSION THEREIN WAS ALSO DELIVERED TO THE JANUARY, 2006, THAT THE DEED OF SA PROPERTY ACT, READ WITH SECTION 2(4 THAT, THE DATE OF ACQUISITION BE TAKEN AS 29/06/2004. 5.1. THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THIS BENCH OF THE TRIBUNAL IN THE CASE OF ARIF HUSNAIN, KOLKATA V. ITO, WARD ASSESSMENT YEAR 2009- 10, ORDER DT. 10/02/2016, PROPERTY , HELD THAT THE TRANSFER IN QUESTION RESULTED IN A HENCE THE ISSUE IS COVERED AGAINST THE ASSESSEE. 6. WE FIND THAT THE TRIBUNAL IN THE CASE OF OF THIS PROPERTY, HELD AS FOLLOWS: 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALSO PERUSED THE AVAILABLE ON RECORD. AS RIGHT T HE ASSESSMENT ORDER THAT ONE EARL IER OWNED BY ONE SHRI BRAJA BALLAV PAUL BY A DEED OF CONVEYANCE EXECUTED ON 08.12.2004 AS FOUND BY THE ASSESSING OFF ICER FROM THE RELEVANT LAND RECORD WHO BECAME OW NER OF THE PROPERTY ONLY ON 08.12.2004 AND THE ASSESSEE AND OTHER F THERE WAS A TRANSFER OF PROPERTY IN ON 27.06.2006 AND THE AJIT KUMAR DAS IN FAVOUR OF SHRI NARENDRA KUMAR DUGAR AND ASSIGNMENT OF THE SAID RIGHT BY SHRI NARENDRA KUMAR DUGAR REGARDED AS TRANSFER OF PROPER BY THE AUTHORITIES BELOW. IN THE CASE OF THE ASSESSEE, THE FACTS INVOLV CASE, INASMUCH AS, AN AGREEMENT TO SALE IN RESPECT OF CAPITAL ASSET IN THAT CASE BEEN EXECUTED ON DECEMBER 27, 2002 FOR TRANSFERRING THE RESIDENTIAL AL THOUGH A SUM OF RS.15 LAKHS WAS ALSO PAID BY WAY OF EARNEST COULD NOT BE EXECUTED BECAUSE O CIRCUMSTANCES, WHICH WERE BEYOND THE NOT BE EXECUTED AND TAKING COURT THAT THERE WAS TRANSFER OF SOME RIGHTS THE CASE OF MRS. MADHU KAUL (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE, THE F LAT WAS AL LOTTED TO THE ASSESSEE ON JUNE 07, 1986 BY A LETTER CONVEYED TO THE JUNE 13, 198 6. THE ASSESSEE ALSO PAID T CONFERRING RIGHT UPON THE ASSESSEE TO HOLD A F LAT, POSSESSION WAS DEL IVERED ON THE LATER CASE, IT WAS HELD BY THE POSSESSION WAS DEL IVERED LATER DID NOT DE CONFERRED A RIGHT TO HOLD TH TRANSFER THUS RELATED BACK TO AND AROSE FROM THE 3 THE DEED OF SA LE WAS EXECUTED. THUS, SECTION 53A OF THE TRANSFER OF PROPERTY ACT, READ WITH SECTION 2(4 7) OF THE INCOME TAX ACT, THAT, THE DATE OF ACQUISITION BE TAKEN AS 29/06/2004. THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THIS BENCH OF THE TRIBUNAL IN THE ARIF HUSNAIN, KOLKATA V. ITO, WARD -32(1), KOLKATA IN ITA NO. 1949/KOL/2014, 10, ORDER DT. 10/02/2016, WHO IS ONE OF THE CO , HELD THAT THE TRANSFER IN QUESTION RESULTED IN A SHORT TERM CAPITAL GAIN THE ISSUE IS COVERED AGAINST THE ASSESSEE. WE FIND THAT THE TRIBUNAL IN THE CASE OF ARIF HUSNAIN (SUPRA), ONE OF THE CO HELD AS FOLLOWS: - HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHT LY POINTED OUT BY THE LD. D.R. FROM THE RELEVANT PORTION OF HE ASSESSMENT ORDER THAT ONE -FIFTH OF THE PROPERTY AT 53, HAZRA ROAD, KOLKATA WAS IER OWNED BY ONE SHRI AJIT KUMAR DAS AND THE SAME WA S TRANSFERRED TO SHRI A DEED OF CONVEYANCE EXECUTED ON 08.12.2004 AS FOUND BY THE ICER FROM THE RELEVANT LAND RECORD . SINCE THE SAID SHRI BRAJA BAL NER OF THE PROPERTY ONLY ON 08.12.2004 AND TRANSFERRED THE S THE ASSESSEE AND OTHER F IVE PERSONS BY WAY OF SALE AGREEMENT ONLY ON 27.06.2006, THERE WAS A TRANSFER OF PROPERTY IN FAVOUR OF THE ASSESSEE AND OTHER F IVE OWNERS ONLY CREATION OF SOM E RIGHT OR INTEREST BY THE EARLIER OWNER SHRI DAS IN FAVOUR OF SHRI NARENDRA KUMAR DUGAR AND ASSIGNMENT OF THE SAID RIGHT BY SHRI NARENDRA KUMAR DUGAR TO THE ASSESSEE AND OTHER FIVE PERSONS CANNOT BE REGARDED AS TRANSFER OF PROPER TY WITHIN THE MEANING OF SECTION 2(47) AS RIGHT BY THE AUTHORITIES BELOW. IN THE CASE OF SANJEEV LAL (SUPRA) CITED BY THE LD. COUNSEL FOR INVOLV ED WERE ENTIRELY DIF FERENT FROM THE FACTS OF THE ASSESSEES AGREEMENT TO SALE IN RESPECT OF CAPITAL ASSET IN THAT CASE BEEN EXECUTED ON DECEMBER 27, 2002 FOR TRANSFERRING THE RESIDENTIAL THOUGH A SUM OF RS.15 LAKHS WAS ALSO PAID BY WAY OF EARNEST MONEY, THE SALE DEED COULD NOT BE EXECUTED BECAUSE O F PENDENCY OF THE LITIGATION. IN THESE FACTS AND CIRCUMSTANCES, WHICH WERE BEYOND THE CONTROL OF THE ASSESSEE, THE SALE DEED COULD NOT BE EXECUTED AND TAKING NOTE OF THE SAME, IT WAS HELD BY THE HONBLE SUPREME TRANSFER OF SOME RIGHTS IN RESPECT OF CAPITAL ASSET. SIMI MRS. MADHU KAUL (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE, THE F LAT LOTTED TO THE ASSESSEE ON JUNE 07, 1986 BY A LETTER CONVEYED TO THE 6. THE ASSESSEE ALSO PAID T HE FIRST INSTALMENT ON JULY 4, 1986, THEREBY CONFERRING RIGHT UPON THE ASSESSEE TO HOLD A F LAT, WHICH WAS LATER IDENTI IVERED ON THE LATER DATE. IN THESE FACTS AND CIRCUMSTANCES OF THAT HONBLE PUNJAB & HARYANA HIGH COURT THAT THE MERE FACT THAT IVERED LATER DID NOT DE TRACT FROM THE FACT THAT THE AL CONFERRED A RIGHT TO HOLD TH E PROPERTY ON ISSUANCE OF AN AL LOTMENT LETTER TRANSFER THUS RELATED BACK TO AND AROSE FROM THE RIGHTS CONFERRED BY THE AL I.T.A. NO. 17/KOL/2016 ASSESSMENT YEAR: 2009-10 DR. RAGHIB HUSNAIN SECTION 53A OF THE TRANSFER OF OF THE INCOME TAX ACT, MANDATES THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THIS BENCH OF THE TRIBUNAL IN THE IN ITA NO. 1949/KOL/2014, WHO IS ONE OF THE CO -OWNERS OF THIS SHORT TERM CAPITAL GAIN AND ONE OF THE CO -OWNERS RELEVANT MATERIAL D.R. FROM THE RELEVANT PORTION OF THE PROPERTY AT 53, HAZRA ROAD, KOLKATA WAS S TRANSFERRED TO SHRI A DEED OF CONVEYANCE EXECUTED ON 08.12.2004 AS FOUND BY THE . SINCE THE SAID SHRI BRAJA BAL LAV PAUL, TRANSFERRED THE S AME TO SALE AGREEMENT ONLY ON 27.06.2006, IVE OWNERS ONLY E RIGHT OR INTEREST BY THE EARLIER OWNER SHRI DAS IN FAVOUR OF SHRI NARENDRA KUMAR DUGAR AND ASSIGNMENT OF THE SAID PERSONS CANNOT BE SECTION 2(47) AS RIGHT LY HELD SANJEEV LAL (SUPRA) CITED BY THE LD. COUNSEL FOR FERENT FROM THE FACTS OF THE ASSESSEES AGREEMENT TO SALE IN RESPECT OF CAPITAL ASSET IN THAT CASE HAD BEEN EXECUTED ON DECEMBER 27, 2002 FOR TRANSFERRING THE RESIDENTIAL HOUSE AND MONEY, THE SALE DEED LITIGATION. IN THESE FACTS AND CONTROL OF THE ASSESSEE, THE SALE DEED COULD NOTE OF THE SAME, IT WAS HELD BY THE HONBLE SUPREME RESPECT OF CAPITAL ASSET. SIMI LARLY IN MRS. MADHU KAUL (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE, THE F LAT LOTTED TO THE ASSESSEE ON JUNE 07, 1986 BY A LETTER CONVEYED TO THE ASSESSEE ON JULY 4, 1986, THEREBY WHICH WAS LATER IDENTI FIED, AND DATE. IN THESE FACTS AND CIRCUMSTANCES OF THAT HARYANA HIGH COURT THAT THE MERE FACT THAT TRACT FROM THE FACT THAT THE AL LOTTEE WAS LOTMENT LETTER AND THE BY THE AL LOTMENT LET TER. THE CASE LAWS, REL IED UPON BY THE LD. COUNSEL FOR DISTINGUISHABLE ON FACTS AND THE SAME CANNOT PRESENT CASE. AS ALREADY NOTED, ONE KOLKATA, WHICH WAS SOLD BY CONSIDERATION HAD BEEN ACQUIR SALE AGREEMENT ENTERED INTO ONLY ON 27.06.2006 AND, THEREFORE ARISING FROM SALE THEREOF ON 28.04.2008 GAVE RISE TO A LONG THEREFORE, FIND NO INF IRMITY IN THE IMPUGNED ORDER OF THE THE ORDER OF THE ASSESSING OFF ASSESSEE. 7. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE PROPERTY IN QUESTION IS 12/06/2006. FOR SECTION 53A OF THE TRANSFER OF PROPERTY ACT READ WITH SECTION 2(47) OF THE INCOME TAX ACT, TO COME INTO FORCE, THERE SHOULD BE POSSESSION OF THE PROPERTY. THERE WAS NO TRANSF 29/06/2004 IS AN UNREGISTERED AGREEMENT. THIS IS NOT MENTIONED ON THE SALE DEED EXECUTED ON 12/06/2006. HENCE WE UPHOLD THE ORDER OF THE LD. CIT(A) AND APPEAL OF THE ASSESSEE. 8. IN THE RESU LT, APPEAL OF THE ASSESSEE IS DISMISSED. KOLKATA, THE SD/- [ S.S. VISWANETHRA RAVI ] JUDICIAL MEMBER DATED : 30.08.2019 {SC SPS} 4 IED UPON BY THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, ARE DISTINGUISHABLE ON FACTS AND THE SAME CANNOT BE ANY HELP TO THE ASSESSEE IN THE PRESENT CASE. AS ALREADY NOTED, ONE FIFTH SHARE IN TH E PROPERTY AT 53, HAZRA ROAD, KOLKATA, WHICH WAS SOLD BY THE ASSESSEE AND OTHER FIVE PERSONS DURING THE YEAR UNDER HAD BEEN ACQUIR ED BY THEM FROM SHRI BRAJA BAL LAV PAUL BY WAY OF A AGREEMENT ENTERED INTO ONLY ON 27.06.2006 AND, THEREFORE , THE CAPITAL ARISING FROM SALE THEREOF ON 28.04.2008 GAVE RISE TO A LONG -TERM CAPITAL GAIN. I, IRMITY IN THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) UPHOLDING THE ORDER OF THE ASSESSING OFF ICER ON THIS ISSUE AND DISMISS THIS APPE AL F I LED BY THE CONSISTENT WITH THE VIEW TAKEN THEREIN, WE HOLD THAT THE DATE OF ACQUISITION OF THE PROPERTY IN QUESTION IS 12/06/2006. FOR SECTION 53A OF THE TRANSFER OF PROPERTY ACT READ WITH SECTION 2(47) OF THE INCOME TAX ACT, TO COME INTO FORCE, THERE SHOULD BE POSSESSION OF THE PROPERTY. THERE WAS NO TRANSF ER OF POSSESSION AS ON 29/06/2004. THE AGREEMENT DT. 29/06/2004 IS AN UNREGISTERED AGREEMENT. THIS IS NOT MENTIONED ON THE SALE DEED EXECUTED ON 12/06/2006. HENCE WE UPHOLD THE ORDER OF THE LD. CIT(A) AND LT, APPEAL OF THE ASSESSEE IS DISMISSED. KOLKATA, THE 30 TH DAY OF AUGUST, 2019. [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER I.T.A. NO. 17/KOL/2016 ASSESSMENT YEAR: 2009-10 DR. RAGHIB HUSNAIN THE ASSESSEE, THEREFORE, ARE BE ANY HELP TO THE ASSESSEE IN THE E PROPERTY AT 53, HAZRA ROAD, THE ASSESSEE AND OTHER FIVE PERSONS DURING THE YEAR UNDER LAV PAUL BY WAY OF A , THE CAPITAL GAIN CAPITAL GAIN. I, LD. CIT(APPEALS) UPHOLDING AL F I LED BY THE HOLD THAT THE DATE OF ACQUISITION OF THE PROPERTY IN QUESTION IS 12/06/2006. FOR SECTION 53A OF THE TRANSFER OF PROPERTY ACT READ WITH SECTION 2(47) OF THE INCOME TAX ACT, TO COME INTO FORCE, THERE SHOULD BE POSSESSION OF ER OF POSSESSION AS ON 29/06/2004. THE AGREEMENT DT. 29/06/2004 IS AN UNREGISTERED AGREEMENT. THIS IS NOT MENTIONED ON THE SALE DEED EXECUTED ON 12/06/2006. HENCE WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS THIS SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. DR. RAGHIB HUSNAIN 12, ABDUL HALIM LANE KOLKATA 700 016 2. INCOME TAX OFFICER, WARD- 55(3), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 5 COPY OF THE ORDER FORWARDED TO: 55(3), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 17/KOL/2016 ASSESSMENT YEAR: 2009-10 DR. RAGHIB HUSNAIN TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES