Sri Chandrashekar Naganagouda Patil, Bangalore V. Deputy Commissioner of Income Tax, Circle-6(2)(1), Bangalore

ITA 1984/BANG/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9955 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-06-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 12-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHI MISRA
• Keywords: Deemed Gift on Purchase of immovable Property below Jantri value; Capital asset; Gift; Opportunity of being heard; Cost of acquisition; Capital Gains
• Section: 54F; 2(14); 195; 201; 48; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH ES : B , BANGALORE BEFORE SHRI N.V.VASUDEVAN, VICE PRESIDENT AND SHRI B.R.BASK A RAN, ACCOUNTANT MEMBER ITA NO . 1984 (BANG)/ 20 17 ( ASSESSMENT YEAR : 20 1 2 - 13 ) SHRI CHANDRASHEKAR NAGANAGOUDA PATIL, NO.GR2, LAVINA COURTS 67, 7 TH CROSS, RMV EXTENSI O N, SADHASHIVANAGAR, BANGALORE - 560 08 0 PAN NO. A CFPP7579J APPELLANT VS THE D EPUTY COMMISSIONER OF INCOME T AX , CIRCLE - 6(2)(1), BANGALORE RESPONDENT APPELLANT BY : SH RI MALLAHA R AO, A DVOCATE REVENUE BY : SH RI PRIYADARSHI MISRA, J CIT DA TE OF HEARING : 2 5 - 0 6 - 20 20 DATE OF PRONOUNCEMENT : 29 - 06 - 2020 O R D E R PER N.V.VASUDEVAN, VICE PRESIDENT TH IS IS AN APPEAL BY THE A S SESSEE AGAINST THE ORDER DATED 3 1 - 07 - 201 7 OF THE LD.CIT(A) , BANGALORE RELATING TO ASSESSMENT YEAR : 20 1 2 - 13 . 2. THE ONLY ISSUE THAT ARISES FOR CONSIDERATION IN THIS APPEAL IS WHETHER THE REVENUE AUT H ORITIES WERE JUSTIFIED IN CONSIDERING THE SUM OF RS.45,55,000/ - RECEIVED BY THE A SSESSEE AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCE AS AGAINST THE CLAIM OF THE A SSESSEE THAT THE SAID SUM RECEIVED IS IN THE NATURE OF CAPITAL GAINS AND SHOULD BE ASSESSED UNDER THE HEAD CAPITAL GAINS ( AS LONG TERM CAPITAL GAIN (LTCG)) . 2 ITA NO.1984 (B)/20 17 3. THE MATERIAL FACTS GIVING R I SE TO THE APPEAL ARE THAT THE A SSESSEE IS AN INDIVIDUAL . H E ENTERED INTO AN AGREEMENT DATED 09 - 02 - 2005 TO PURCHASE VACANT SITE BEARING BDA NO.161, SURVEY NO.5, SRINIVGILU AMANIKERE VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, MEASURING 6900 SQ.FT (HEREIN AFTER RE FERRED TO AS THE PROPERTY ) . THE CONSIDERATIO N AGREED BETWEEN THE A SSESSE E AND S HRI CHANNAKESAVA, O W NER O F THE PROPERTY WAS A SUM OF RS.27,60,000/ - . THE A SSESSEE PAID AN ADVANCE OF RS.2,75,000/ - AND AGREED TO PAY THE REMAINING SUM AT THE TIM E OF REGISTRATION OF SALE DEED. THE VENDOR OF THE PROPERTY WAS REQUIRED TO MAKE OUT A MARKETABLE TITLE TO THE PROPERTY. THE A SSESSEE UNDER CLAUSE - 8 OF THE AGREEMENT HAD A RIGHT TO ENFORCE THE TERMS BY WAY OF SPECIFIC PERFORMANCE. 4. ON 08 - 12 - 2011 S HRI CHANNAKESHAVA , AS VENDOR AND THE A SSESSEE AS CONFIRMING PARTY S OLD THE PROPERTY TO A THIRD PARTY FOR A CONSIDERATION OF RS.82,80,000/ - . A S PER THE PREAMBLE TO THE SALE DEED IT HAS BEEN MENTIONED THAT THE A SSESSEE HAS BEEN ADDED AS A CONFIRMING PARTY AS HE WAS AGREEMENT HOLDER WHO HAD A RIGHT TO OBTAIN CONVEYANCE OF THE PROPERTY FROM THE OWNER. THE PREAMBLE FURTHER RECITES THAT THE CONFORMING PARTY NOMINATED THE PURCHASER TO PURCHASE THE PROPER T Y AND THAT OUT OF THE SALE CONSIDERATION OF RS.1200/ - AGREED BETWEEN TH E PARTIES AS SALE CONSIDERATION, A SUM OF RS.500/ - PER SQ.FT WAS TO BE PAID A S SALE CONSIDERATION TO THE VENDOR I.E SHR I CHANNAKESHAVA AND RS.700/ - WAS TO BE PAID TO THE A SSESSEE WHO WAS A CONFIRMING PARTY TO THE SALE DEED. THE RELEVANT RECITAL I N THE PREAMBLE IN THE SALE DEED IS AS FO LLOWS; AND WHEREAS, THE CONFIRMING PARTY BEING ENTITLED TO HAVE THE SALE DEED EXECUTED IN RESPECT OF SCHEDULE PROPERTY BY THE VENDOR IN HIS FAVOUR OR IN FAVOUR OF ANY OF HIS NOMINEE/S, HAS CALLED UPON THE VENDOR TO EXECUTE AND REGISTER THE SALE DEED IN RESPECT OF THE SCHEDULE PROPERTY IN FAVOUR OF THE PURCHASER HEREIN FOR A TOTAL SALE CONSIDERATION CALCULATED AT RS.1200/ - SQ.FT FROM OUT OF WHICH THE VENDOR WOU LD BE ENTITLED TO RECEIVE A SUM OF RS.500/ - SQ.FT AS SALE CONSIDERATION AND THE CONFIRMING PARTY IS REQUIRED O BE PAID A SUM OF RS.700/ - SQ.FT BY THE PURCHASER AS INSTRUCTED BY THE VENDOR HIMSELF TO DEFRAY THE EXPENSES SO FAR INCURRED BY THE CONFIRMING P ARTY IN RESPECT OF THE PAYMENT OF ADVANCE ALE CONSIDERATION AND 3 ITA NO.1984 (B)/20 17 OTHER EXPENSES INCURRED SO AS TO PROTECT THE SCHEDULE PROPERTY AND THE RIGHTS, TITLE AND INTEREST OF THE VENDOR THEREIN AND TO GET THE INFRASTRUCTURAL WORKS DONE TO SOME EXTENT. 4. THE MAN NER OF PAYMENT OF SALE CONSIDERATION HAS ALSO BEEN SET OUT IN CLAUSE - 1 OF THE SALE DEED WHICH READS AS FOLLOWS: ..1. IN CONSIDERATION OF A S U M OF RS.82,80,000/ - (RS.EIGHTY TWO LAKHS EIGHTY THOUSAND ONLY) PAID BY THE PURCH A SER TO THE VENDOR AND/OR THE CON FIRMING PARTY AS PER THE DIRECTIONS OF THE VENDOR IN THE FOLLOWING MANNER. A) A SUM OF RS.13,80,000/ - (RS. T HIRTEEN LAKHS AND EIGHT THOUSAND ONLY) BY WAY OF DD BEARING NO.078386 DATED 21.11.2011 PAYABLE AT UCO BANK, KORAMANGALA, BANGALORE - 560 034 IN FAVOUR OF THE VENDOR BEFORE THE WITNESSES. B) A SUM OF RS.20,70,000/ - (RS. T WENTY LAKHS AND SEVENTY THOUSAND ONLY) BY WAY OF CHEQUE BEARING NO.572515 DATED 08.12.2011 DRAWN ON UCO BANK, KORAMANGALA, BANGALORE - 560 034 IN FAVOUR OF THE VENDOR BEFORE THE WITNESSES. C) A SU M OF RS.48,30,000/ - (RS. F ORTY EIGHT LAKHS AND THIRTY THOUSAND ONLY) BY WAY OF CHEQUE BEARING NO.572516 DATED 08.12.2011 DRAWN ON UCO BANK, K O RAMNAGALA, BANGALORE - 560 034 IN FAVOUR OF THE CONFIRMING PARTY BEFORE HE WITNESSES AS INSTRUCTED BY THE VENDOR BEFOR E THE ATTESTING WITNESSES HEREIN TOWARDS FULL AND FINAL SATISFACTION OF THE ENTIRE SALE CONSIDERATION AMOUNT AND THE VENDOR HEREBY ACKNOWLEDGES THE RECEIPT OF THE TOTAL SALE CONSIDERATION OF RS.82,80,000/ - (RS.EIGHT TWO LAKHS AND EIGHT Y THOUSAND ONLY) FRO M THE PURCHASER BEFORE THE ATTESTED WITNESSES HEREIN THE AFORESAID MANNER AND DISCHARGES THE PURCHASER ANY FURTHER LIABILITY TOWARDS SALE CONSIDERATION AND ALSO IN CONSIDERATION OF THE COVENANTS HEREIN CONTAINED, THE VENDOR DO AS SOLE, TRUE AND BENEFICIAL OWNER OF THE SCHEDULE PROPERTY SELLS, ASSIGNS, CONVEYS AND SETS OVER POSSESSION OF THE SCHEDULE PROPERTY TO THE PURCHASER FROM ALL ENCUMBRANCES. HENCEFORTH, THE PURCHASER S HALL BE THE ABSOLUTE OWNER OF THE SCHEDULE PROPERTY. 5. FOR ASSESSMENT YEAR 2012 - 13 THE A SESSEE FILED RETURN OF INCOME DECLARING THE SUM RECEIVED UNDER THE SALE DEED AS GIVING RISE TO THE CAPITAL GAIN AND CLAIMED DEDUCTION U/S 54F OF THE INCOME TAX ACT, 1961 (ACT). THE AO WAS OF THE VIEW THAT UNDER THE AGREEMENT FOR SALE THE A SSESSEE DID NOT HAVE ANY RIGHT OVER THE PROPERTY EXCEPT A RIGHT TO GET REFUND OF ADVANCE PAID UNDER THE AGREEMENT DATED 09 - 05 - 2 005. ACCORDING TO THE AO THE A SSESSEE DID NOT POSSESS ANY RIGHT OVER THE PROPERTY AND THERE IS NO QUESTION OF RELINQUISHING O R 4 ITA NO.1984 (B)/20 17 SURRENDERING OF SUCH RIGHT AND RECEIPT OF RS.48,300/ - UNDER THE SALE DEED HAD TO BE TAKEN UNDER THE HEAD INCOME FROM OTHER SOURCES . CONSEQUENTLY DEDUCTION U/S.54F OF THE ACT WAS ALSO DENIED TO THE ASSESSEE. 6. AGGRIEV E D BY THE ORDER OF AO , THE A S S ESSEE FILED APPEAL BEFORE THE LD. CIT(A) . BEFORE THE LD. CIT(A) A SSESSEE HAD RELIED ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE C A SE OF CIT VS H ANIL KUMAR (2011) 242 CTR 537 (KAR.) . IN THE AFORESAID DECISION, THE A SSESSEE RECEIVED COMPENSATION FOR GIVING UP HIS RIGHT TO SPECIFIC PERFORMANCE OF AN AGREEMENT TO SELL. THE QUESTION BEFORE THE COURT WAS WHETHER THE SUM RECEIVED WAS ASSESSABLE UNDER THE HEAD LONG TERM CAPITAL GAINS. ON APPEAL BY THE ASSESSEE, THE HONBLE KARN ATAKA HIGH COURT H ELD THAT THE WORD CAPITAL ASSET MEANS PROPERTY OF ANY KIND HELD BY THE ASSESSEE WHICH DOES NOT NECESSARILY BE CONFINED TO AN IMMOVABLE PROPERTY. SIMILARLY, WHEN THE WORD TRANSFER IN RELATION TO A CAPITAL ASSET THOUGH INCLUDES SALE, EX CHANGE OR RELINQUISHMENT OF THE ASSET, THE SAID ASSET NEED NOT NECESSARILY BE AN IMMOVABLE PROPERTY. THE RIGHT TO OBTAIN A CONVEYANCE OF IMMOVABLE PROPERTY FALLS WITHIN THE EXPRESSION PROPERTY OF ANY KIND USED IN S. 2(14) AND CONSEQUENTLY IT IS A CAPITAL ASSET. IT IS BECAUSE THE EXPRESSION PROPERTY OF ANY KIND IS OF WIDE IMPORT. WHEN THIS EXPRESSION IS READ ALONG WITH THE EXPRESSION DEFINED IN S. 2(47)(II) I.E., EXTINGUISHMENT OF ANY RIGHTS THEREIN, THE GIVING UP OF A RIGHT OF SPECIFIC PERFORMANCE BY THE ASSESSEE TO GET CONVEYANCE OF IMMOVABLE PROPERTY IN LIEU OF RECEIVING CONSIDERATION, RESULTS IN THE EXTINGUISHMENT OF THE RIGHT IN PROPERTY, THEREBY ATTRACTING THE RIGOR OF S. 2(14) R/W S. 2(47). GIVING UP OF A RIGHT TO CLAIM SPECIFIC PERFORMANCE BY CO NVEYANCE IN RESPECT TO AN IMMOVABLE PROPERTY, AMOUNTS TO RELINQUISHMENT OF THE CAPITAL ASSET. THEREFORE, THERE WAS A TRANSFER OF CAPITAL ASSET WITHIN THE MEANING OF THE ACT. THE PAYMENT OF CONSIDERATION UNDER THE AGREEMENT OF SALE, FOR TRANSFER OF A CAPITA L ASSET, IS THE COST OF ACQUISITION OF THE CAPITAL ASSET. THEREFORE, IN LIEU OF GIVING UP THE SAID RIGHT, ANY AMOUNT RECEIVED, CONSTITUTES CAPITAL GAIN AND IT IS EXIGIBLE TO TAX. HOWEVER, AS IS CLEAR FROM S. 48, BEFORE THE INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAINS IS COMPUTED, THE DEDUCTIONS 5 ITA NO.1984 (B)/20 17 SET OUT IN S. 48 HAS TO BE GIVEN TO THE ASSESSEE. IT IS ONLY THE AMOUNT THUS ARRIVED AT, AFTER SUCH DEDUCTIONS UNDER S. 48, WOULD BE THE INCOME CHARGEABLE UNDER THE HEADING CAPITAL GAINS. THE HONBLE KARNATAKA HIGH COURT IN THE AFORESAID DECISION PLACED RELIANCE ON SIMILAR DECISIONS RENDERED BY SEVERAL HONBLE HIGH COURTS IN THE CASE OF CIT VS. TATA SERVICES LTD. (1980) 122 ITR 594 (BOM), CIT VS. VIJAY FLEXIBLE CONTAINERS (1990) 186 ITR 693 (BOM), CIT VS. ABBASBHOY A. DEHGAMWALLA & ORS. (1992) 195 ITR 28 (BOM), RUSTOM SPINNERS LTD. VS. CIT (1992) 198 ITR 351 (GUJ), CIT VS. SMT. LAXMIDEVI RATANI & ORS. (2008) 296 ITR 363 (MP) AND CIT VS. J. DALMIA (1984) 149 ITR 215 (DEL). 7. THE LD. CIT(A) HOWEVER, CONFIRMED THE ORDER OF THE A O BY OBSERVING THAT IN THE CASE BEFORE THE HONBLE KARNATAKA HIGH COURT THE A SSESSEE HAD GIVEN UP RIGHT FOR SPECIFIC PERFORMANCE WHEREAS IN THE CASE OF THE A SSESSEE IN THIS APPEAL, THE A SSESSEE DID NOT FILE ANY SUIT FOR SPECIFIC PERFORMANCE AND DID NOT HAVE ANY RIGHT OVER THE CAPITAL ASSET. 8 . AGGRIEVED BY T HE ORDER OF THE LD. CIT(A) TH E A SSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD COUNSEL FOR THE A SESSEE APART FROM RELYING ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF H ANIL KUMAR (SUPRA) ALSO PLACED RELIANCE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS VIJAY FLEXIBLE CONTAINERS 186 ITR 693(BOM.) AND THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS TATA SERVICES LTD., 122 ITR 594. THE LD. COUNSEL ALSO PLACED RELIANCE ON THE DECISION OF THE HONBLE KOLKATA BENCH OF THE ITA T IN THE C A SE OF GAUTAM JHUNJHUNWALA VS ITO IN ITA NO.1356/KOL/2017 FOR ASSESSMENT YEAR 2012 - 13 VIDE ORDER DATED 07 - 09 - 2018, RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HONBLE ITAT AHMEDABAD BENCH B BENCH IN THE CASE OF S MT. SAPNABEN DIPAKBHAI PATEL VS ITO IN ITA N O .2414/A H D/2013 FOR ASSESSMENT YEAR 2010 - 11 BY AN ORDER DATED 13 - 01 - 2016 . IN ALL THESE DECISIONS THE PROPOSITION LAID DOWN IS SIMILAR TO THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF H.ANIL KUMAR (SUPRA). 6 ITA NO.1984 (B)/20 17 9 . THE LD. AR SUBMITTED THAT THE AGREEMENT BETWEEN THE A SSESSEE AND S HRI CHANDRAKESHAVA DATED 09 - 02 - 2005 WAS AN UNREGISTERED AGREEMENT . IT WAS SUBMITTED BY HIM THAT U/S 17(1)(B) OF THE REGISTRATION ACT, 1908 AGREEMENT FOR SALE REQUIRES COMPULSORY REGISTRATION FOR ITS VALIDITY AND ANY DOCUMENT WHICH REQUIRES COMPULSORY REGISTRATION , IF IT IS NOT REGISTERED CANNOT BE ADMITTED AS EVIDENCE OF ANY TRANSACTION S AND DOES NOT A FFECT ANY IMMOVABLE PROPERTIES COMPRISE D THEREIN AS LAID DOWN U/S 49 OF REGISTRATION ACT, 1908. HE ALSO PL A CED RELIANCE ON THE DECISION OF THE HONBLE ITAT, AMRITSAR BENCH IN THE C A SE OF SHAGAN LAL VS ITO(2018) 89 TAXMANN.COM 177 ) (A MRITSAR - TRIB.) WHEREIN IT WAS HELD THAT AGREEMENT TO SELL WH ICH IS NOT REGISTERED COULD NOT BE RELIED UPON FOR ANY PURPOSES. 10. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. WE ARE OF THE VIEW THAT RIGHT ACQUIRED UNDER THE AGREEMENT BY THE ASSESSEE HAS TO BE REGARDED AS CAPITAL ASSET. THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF H.ANILKUMAR (SUPRA) SUPPORTS THE PLEA OF THE ASSESSEE. THE HONBLE HIGH COURT IN THE SAID DECISION HELD THAT THE RIGHT TO OBTAIN A CONVEYANCE OF IMMOVABLE PROPERTY FALLS WITHIN THE EXPRESSION PROPERTY OF ANY KIND USED IN S. 2(14) AND CONSEQUENTLY IT IS A CAPITAL ASSET. IT IS BECAUSE THE EXPRESSION PROPERTY OF ANY KIND IS OF WIDE IMPORT. THE HONBLE COURT HELD THAT WHEN THIS EXPRESSION IS READ ALONG WITH THE EXPRESSION DEFINED IN S. 2(47)(I I) I.E., EXTINGUISHMENT OF ANY RIGHTS THEREIN, THE GIVING UP OF A RIGHT OF SPECIFIC PERFORMANCE BY THE ASSESSEE TO GET CONVEYANCE OF IMMOVABLE PROPERTY IN LIEU OF RECEIVING CONSIDERATION, RESULTS IN THE EXTINGUISHMENT OF THE RIGHT IN PROPERTY, THEREBY AT TRACTING THE RIGOR OF S. 2(14) R/W S. 2(47). GIVING UP OF A RIGHT TO CLAIM SPECIFIC PERFORMANCE BY CONVEYANCE IN RESPECT TO AN IMMOVABLE PROPERTY, AMOUNTS TO RELINQUISHMENT OF THE CAPITAL ASSET. THEREFORE, THERE WAS A TRANSFER OF CAPITAL ASSET WITHIN THE M EANING OF THE ACT. THE PAYMENT OF CONSIDERATION UNDER THE AGREEMENT OF SALE, FOR TRANSFER OF A CAPITAL ASSET, IS THE COST OF ACQUISITION OF THE CAPITAL ASSET. THEREFORE, IN LIEU OF GIVING UP THE SAID RIGHT, ANY AMOUNT RECEIVED, CONSTITUTES CAPITAL GAIN AND IT IS EXIGIBLE TO TAX. HOWEVER, AS IS CLEAR FROM S. 48, BEFORE THE INCOME CHARGEABLE 7 ITA NO.1984 (B)/20 17 UNDER THE HEAD CAPITAL GAINS IS COMPUTED, THE DEDUCTIONS SET OUT IN S. 48 HAS TO BE GIVEN TO THE ASSESSEE. IT IS ONLY THE AMOUNT THUS ARRIVED AT, AFTER SUCH DEDUCTIONS UN DER S. 48, WOULD BE THE INCOME CHARGEABLE UNDER THE HEADING CAPITAL GAINS. IT IS NOT NECESSARY THAT IN ALL SUCH CASES THERE SHOULD HA VE BEEN A LIS BETWEEN THE PARTIES AND IN SUCH IS THE RIGHT TO SPECIFIC PERFORMANCE HAS TO BE GIVEN UP. THE CIT( A), IN OUR VIEW, FELL INTO AN ERROR IN HOLDING THAT THE ASSESSEE DID NOT FILE A SUIT FOR SPECIFIC PERFORMANCE AND THEREFORE CANNOT CLAIM THE BENEFIT OF THE RATIO LAID DOWN BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF H.ANIL KUMAR (SUPRA). 11. WITH R EGARD TO THE SUBMISSION OF THE LD.DR RELYING ON THE PROVISIONS OF SEC. 17(1A) OF THE RE G ISTRATION ACT, 1908 , THE RELEVANT PROVISIONS WHICH READ AS UNDER; 17. DOCUMENTS OF WHICH REGISTRATION IS COMPULSORY. ( 1) THE FOLLOWING D OCUMENTS S HALL BE REGISTERED, I F THE PROPERTY TO WHICH THEY RELATE IS SITUATE IN A DISTRICT IN WHICH, AND IF THEY HAVE BEEN EXECUTED ON OR AFTER THE DATE ON WHICH , ACT NO.XVI OF 1864 OR THE INDIAN REGISTRATION ACT, 1866, THE INDIAN REGISTRATION ACT, 1871 OR THE INDIAN REGISTRATION ACT, 1877, OR THIS ACT OR CAME OR COMES INTO FORCE NAMELY: - A) INSTRUMENTS OF GIFT OF IMMOVABLE PROPERTY ; B) OTHER NON - TESTAMENTARY INSTRUMENTS WHICH PURPORT OR OPERATE TO CREATE, DECLARE, ASSIGN, LIMIT OR EXTINGUISH, WHETHER IN PRESENT OR IN FUTURE, ANY RIGHT, TITLE OR INTEREST, WHETHER VESTED OR CONTINGENT, OF THE VALUE OF ONE HUNDRED RUPEES AND UPWARDS, TO OR IMMOVABLE PROPERTY ; C) NON - TESTAMENTARY INSTRUMENTS WHICH ACKNOWLEDGE THE RECEIPT OR PAYMENT OF ANY CONSIDE R ATION ON ACCOUNT OF THE CREATION, DECLARATION , ASSIGNMENT, LIMITATION OR EXTINCTION OF ANY SUCH RIGHT, TITLE OR INTEREST: AND D) LEASES OF IMMOVABLE PROPERTY FROM YEAR TO YEAR, OR FOR ANY TERM EXCEEDING ONE YEAR, OR RESERVING A YEARLY; AND E) NON - TESTAMENTARY INSTRUMENTS TRANSFERRING OR ASSIGNING ANY DECREE OR ORDER OF A COURT OR ANY AWARD WHEN SUCH DECREE OR ORDER OF A WARD PURPO RTS OR OPERATES TO CREATE, DECL ARE, ASSIGN, LIMIT OR 8 ITA NO.1984 (B)/20 17 EXTINGUISH, WHETHER IN PRESENT OR IN FUTURE, ANY RIGHT, TITLE OR INTEREST, WHETHER VESTED OR CONTINGENT, OF THE VALUE OF ONE HUNDRED RUPEES AND UPWARDS, TO OR IN IMMOVABLE PROPERTY PROVIDED THAT THE (STATE GOVERNMENT ) MAY, BY ORDER PUBLISHED IN THE (OFFICIAL GAZETTE) EXEMPT FROM THE OPERATION OF THIS SUB - SECTION ANY LEASE EXECUTED IN ANY DISTRICT, OR PART OF A DISTRICT, T HE TERMS GRANTED BY WHICH DO NOT EXCEED FIVE YEARS AND THE ANNUAL RENTS RESERVED BY WHICH DO NOT EXCEED FIFTY RUPEES. ( 1A) THE DOCUMENTS CONTAINING CONTRACTS TO TRANSFER FOR CONSIDERATION, ANY IMMOVABLE PROPERTY FOR THE PURPOSE OF SECTION 53A OF THE TRANS FER 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. 1 2 . A PERUSAL OF THE AFORESAID PROVISIONS WOULD SHOW THAT THESE PROVISIONS ARE APPLICABLE ONLY IN THE CASE OF A CLAIM MADE FOR APPLICATION OF THE DOCTRINE OF PART PERFORMANCE ENSHRINED IN SECTION 53 A OF THE TRANSFER OF PROPERTY ACT, 1882. IN THE PRESENT CASE, THERE WAS NO DELIVERY OF POSSESSION IN PART PERFORMANCE OF THE AGREEMENT FOR SALE DATED 09 - 02 - 2005 AND THEREFORE, THERE IS NO QUESTION OF THE AGREEMENT DATED 09 - 02 - 2 - 005 BEING REGARDED AS A DOCUMENT REQUIRING COMPULSORY REGISTRATION. THEREFORE, THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS BALBIR SINGH MAINI 398 ITR 531(SC) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE . F OR THE REASONS GIVEN ABOVE , W E ARE OF THE VIEW THAT THE SUM IN QUESTION IS CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAINS . 1 3 . TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE VIEW THAT INCOME FROM RELINQUISHING RIGHTS UNDER AN AGREEMENT SHOULD BE ASSESSED UNDER THE HEAD INCOME FROM CAPITAL GAINS. WE HOLD ACCORDINGLY. WE HOWEVER FIND THAT THE AO/CIT(A) HAVE NOT EXAMINED THE CLAIM OF THE ASSESSEE UNDER THE HEAD CAPITAL GAIN IN ACCORDANCE WITH THE PROVISIONS OF SEC.48 OF THE ACT AND ALSO CLAIM FOR DEDUCTION U/S.54F OF THE ACT. WE THEREFORE REMAND THE QUESTION OF COMPUTATION OF CAPITAL GAIN TO THE AO 9 ITA NO.1984 (B)/20 17 AFTER DUE OPPORTUNITY OF BEING HEARD AFFORDED TO THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 14. IN THE RESULT, THE APPEAL OF THE A SSESSEE IS TREATED AS ALLOWED FOR STATISTIC A L PURPOSES. ORDER P RONOUNCED ON SD/ - S D/ - (B.R.BASKARAN) (N.V.VASUDEVAN) ACCOUNTANT MEMBER VICE PRESIDENT DATED: 29 - 06 - 2020 * AM C OPY OF THE ORDE R FORWARDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5. DR 6 .GUARD FILE BY ORDER ASST. REGISTRAR