SHRI SANJAY KUMAR GUPTA, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, JAIPUR

ITA 227/JPR/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 5379 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 15-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI JCIT DHK
• Assessee Lawyers: MADHUKAR GARG
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Condonation of delay

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 227/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2014-15 SANJAY KUMAR GUPTA, FLAT NO. 102, UNIQUE SANGHI APARTMENTS, MAHAVEER NAGAR, JAIPUR. CUKE VS. A.C.I.T., CIRCLE-5, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABEPG 0346 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MADHUKAR GARG (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/10/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 05/10/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 06/11/2017 OF LD. CIT(A)-2, JAIPUR FOR THE A.Y. 201 4-15. 2. THERE IS DELAY OF ONE DAY IN FILING THE PRESENT A PPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY, WHICH IS ALSO SUPPORTED BY AN AFFIDAVIT. 3. WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND PERUSED THE REASONS EXPLAINED IN THE APPLICATION FO R CONDONATION OF DELAY ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 2 AS WELL AS IN THE AFFIDAVIT FILED BY THE ASSESSEE. TH E ASSESSEE HAS EXPLAINED THAT DUE TO STATE HOLIDAY ON 13/2/2018, W HICH WAS A WORKING DAY FOR THE TRIBUNAL, THE ASSESSEE WAS UNDER THE IMPR ESSION THAT THE APPEAL CAN BE FILED ONLY ON 14/2/2018 AND WHICH WAS A GAIN A HOLIDAY OF THE ITAT AND CONSEQUENTLY THE APPEAL COULD BE FILED ONLY ON 15/2/2018. WE FIND THAT THE ASSESSEE HAD SIGNED THE MEMO OF AP PEAL AND GROUNDS ON 13/2/2018 AND THEREFORE, DUE TO THE HOLIDAY ON 13/2 /2018 OF THE STATE GOVERNMENT AND ON 14/2/2018 OF THE CENTRAL GOVERNME NT, THE APPEAL WAS FILED ONLY ON 15/2/2018 RESULTING THE DELAY OF ONE DAY IN FILING THE APPEAL. ACCORDINGLY, WE CONDONE THE DELAY IN FILING THE APPE AL OF ONE DAY IN FILING THE APPEAL. 4. IN THE PRESENT APPEAL, THE ASSESSEE HAS RAISED F OLLOWING GROUNDS OF APPEAL: 1. THAT THE LEARNED CIT(APPEALS) HAS ERRED IN HOLD ING THAT ON THE DATE OF THE AGREEMENT WITH REGARD TO THE SALE OF THE PROPER TY THE SELLER HIMSELF WAS NOT THE OWNER OF THE PROPERTY AND SO CO ULD NOT HAVE PASSED IT ON TO THE ASSESSEE AND THE ENTRIES IN THE SALE HAD ALSO ESTABLISHED THAT THE PROMOTER HAS HANDED OVER ACTUA L POSSESSION OF THE SAID PLOT OF LAND TO THE BUYER. THE SAID FINDIN G IS ILLEGAL AND UNJUSTIFIED. 2. THAT THE LEARNED CIT(APPEALS) HAS ERRED IN HOLDI NG THAT TRANSACTION REGARDING PURCHASE OF PROPERTY SITUATED AT B-29, SU SHANT CITY, KALWAR ROAD, JAIPUR HAS TO BE CONSIDERED FOR ASSESSMENT YE AR 2014-15 AND PROVISIONS OF SECTION 56(2)(VII)(B)(II) WOULD BE AP PLICABLE AND CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER. ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 3 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEALS) HAS ERRED IN HOLDING THAT TRANSACTION FOR THE PURCHASE OF THE PROPERTY IS TO BE CONSIDERED FOR ASSESSMENT YEA R 2014-15 AND CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN H OLDING THAT A SUM OF RS. 11,86,060/- BEING THE DIFFERENCE OF COST OF RS.10,51,000/- AND STAMP DUTY VALUE OF RS.22,37,060/- AS TAXABLE U/S 5 6(2) UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. THE ADDITION SUST AINED TO THE INCOME OF THE ASSESSEE IS ILLEGAL AND UNJUSTIFIED. 5. THE ONLY ISSUE RAISED IN THIS APPEAL OF THE ASSES SEE IS REGARDING THE ADDITION MADE BY THE ASSESSING OFFICER U/S 56(2)(VI I)(B)(II) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON ACCOUNT OF PURCH ASE OF IMMOVABLE PROPERTY. THE ASSESSEE HAD PURCHASED IMMOVABLE PROPE RTY AT PNB-20, BLOCK B, SHUSHANT CITY MACHAWA, KALWAR ROAD, JAIPUR F OR A CONSIDERATION OF RS. 10,51,000/-, WHICH WAS VALUED FOR STAMP DUTY P URPOSE AT RS. 22,37,060/-. THE ASSESSING OFFICER PROPOSED TO TAKE THE STAMP DUTY VALUATION AS THE PURCHASE CONSIDERATION IN TERMS OF SECTION 56(2)(VII)(B)(II) OF THE ACT, WHICH WAS OBJECTED BY THE ASSESSEE ON T HE GROUND THAT THE ASSESSEE PURCHASED THE PROPERTY VIDE AGREEMENT DATE D 28/3/2013 THOUGH THE SALE DEED WAS FINALLY REGISTERED ON 28/4/2013. T HUS, THE ASSESSEE CONTENDED THAT THE TRANSACTION OF PURCHASE TOOK PLA CED IN THE PRECEDING YEAR FOR WHICH THE PROVISIONS OF SECTION 56(2)(VII) (B)(II) OF THE ACT ARE NOT APPLICABLE. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND HELD THAT THE PROPERTY WAS PURCHASED BY THE ASSESSEE ONLY WHEN THE SALE DEED WAS REGISTERED ON 26/4/2013 AS PRI OR TO THE SAID DATE ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 4 EVEN THE VENDOR WAS NOT HAVING FULL RIGHT IN THE IMM OVABLE PROPERTY IN QUESTION. 6. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSI NG OFFICER BEFORE THE LD. CIT(A) AND REITERATED ITS CONTENTION THAT TH E PROPERTY IN QUESTION WAS PURCHASED BY THE ASSESSEE VIDE AGREEMENT DATED 2 8/3/2013 AND THEREFORE, THE PROVISIONS OF SECTION 56(2)(VII)(B)( II) OF THE ACT ARE NOT APPLICABLE, THEREFORE, THE TRANSACTION ITSELF DOES NOT FALL IN THE YEAR UNDER CONSIDERATION. THE LD. CIT(A) WAS NOT IMPRESSED WITH TH E CONTENTION OF THE ASSESSEE AND CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 7. BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE LD. CIT(A) HAS DENIED THE CLAIM OF THE ASSESSEE THAT THE PROPERTY IN QUESTION WAS PURCHASED VIDE AGREEMENT DATED 28/3/2013 ON THE GROUND THAT ON THE DATE OF AGREEMENT THE SELLER HIMSELF WAS NOT THE OWNER OF THE PROPERTY AND THEREFORE, HE COULD NOT HAVE PASSED IT TO THE A SSESSEE. THE LD AR HAS REFERRED TO THE DETAILS OF THE ALLOTMENT OF THE PRO PERTY BY ANSAL TOWNSHIP AND LAND DEVELOPMENT LTD. IN FAVOUR OF THE SELLER A ND SUBMITTED THAT THE ENTIRE PAYMENT FOR PROPERTY SITUATED AT B-29, SUSHA NT CITY, KALWAR ROAD, JAIPUR WAS MADE UP TO 02/4/2008 WHEN THE POSSESSION WAS GIVEN TO THE ALLOTTEE. HE HAS REFERRED TO THE DETAILS OF THE PAY MENTS AND POSSESSION LETTER ISSUED BY ANSAL PROPERTIES AND INFRASTRUCTUR E LTD. AT PAGE 11 OF THE ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 5 PAPER BOOK. HE HAS FURTHER CONTENDED THAT EVEN OTHE RWISE AS PER AGREEMENT DATED 15/9/2003, THE SELLER ACQUIRED THE PROPERTY IN QUESTION FROM ANSAL TOWNSHIP AND LAND DEVELOPMENT LTD. THEREAF TER THE PAYMENT AS PER THE SCHEDULE ANNEXED TO THE AGREEMENT WAS PAI D AND HENCE EVEN IF THE SALE OF THE PROPERTY WAS EXECUTED ON 26/4/2013 I N FAVOUR OF THE SELLER, THE RIGHT OF THE SELLER IN THE SAID PROPERTY WAS OTH ERWISE EXISTS AND VESTED IN FAVOUR OF THE ALLOTTEE AND MERE REGISTRATION OF SALE DEED WOULD NOT CHANGE THE RIGHT AND OWNERSHIP VESTED WITH THE ALLOTT EE. HENCE, HE HAS SUBMITTED THAT THE SELLER WAS HAVING PAID FULL CONSI DERATION AND ACQUIRING THE PROPERTY FROM M/S ANSAL PROPERTIES AND INFRASTR UCTURE LTD. VIDE AGREEMENT DATED 25/9/2009 WAS VERY MUCH IN HIS OWN RI GHTS COMPETENT TO TRANSFER THE SAME. HE HAS ALSO REFERRED TO THE PROV ISIONS OF SECTION 56(2)(VII)(B) OF THE ACT AND SUBMITTED THAT THE PRO VISIONS PROVIDES THAT WHERE AN INDIVIDUAL OR HUF RECEIVES IN ANY PREVIOUS YEAR FROM ANY PERSON OR PERSONS IMMOVABLE PROPERTY FOR CONSIDERATION, WHI CH IS LESS THAN THE STAMP DUTY VALUE SUCH STAMP DUTY VALUE EXISTS CHARG EABLE TO INCOME TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. HENCE, THE PROVISIONS DOES NOT USE THE TERM TRANSFER BUT IT REFERS ONLY TERMS RECEIVES AND THEREFORE, THE REGISTRATION OF AGREEMENT IS NOT THE REQUIREMEN T UNDER THE SAID PROVISION. HENCE, THE LD AR HAS SUBMITTED THAT THE SALE DEED DATED 26/4/2013 ALSO MENTIONED PART PAYMENT OF CONSIDERAT ION OF RS. 4.00 LACS ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 6 ON 28/3/2013 WHICH CORROBORATES THE EXISTENCE OF TH E AGREEMENT DATED 28/3/2013 BETWEEN THE PARTIES. IN SUPPORT OF HIS CON TENTION, HE HAS RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN T HE CASE OF SANJEEV LAL VS CIT 365 ITR 389 AND SUBMITTED THAT THE HON'BLE SUP REME COURT HAS HELD THAT IN NORMAL CIRCUMSTANCES, THE ENTIRE PROPE RTY CANNOT BE SAID TO HAVE BEEN SOLD AT THE TIME WHEN AN AGREEMENT TO SAL E IS ENTERED INTO. HOWEVER, LOOKING AT THE PROVISIONS OF SECTION 2(47) OF THE ACT WHICH DEFINES THE WORD TRANSFER IN RELATION TO A CAPITAL ASSET, IF A RIGHT IN THE PROPERTY IS EXTINGUISHED BY EXECUTION OF AN AGREEME NT TO SALE AND THAT RIGHT IS TRANSFERRED TO SOMEONE, IT WOULD AMOUNT TO TRANSFER OF A CAPITAL ASSET. THUS, THE LD AR HAS SUBMITTED THAT BY VIRTUE OF AGREEMENT DATED 28/3/2013, THE SELLER TRANSFERRED SUBSTANTIAL RIGHT IN THE PROPERTY IN QUESTION IN FAVOUR OF THE ASSESSEE AND THEREFORE, A TRANSACTION WAS COMPLETED ON 28/3/2013 WHICH DOES NOT FALL IN THE Y EAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. 8. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE PROVISIONS OF SECTION 56(2)(VIIB) OF THE ACT PROVIDES CHARGEABILI TY OF EXCESS CONSIDERATION TO INCOME TAX IF THE STAMP DUTY VALUE OF SUCH PROPERTY PURCHASED BY THE ASSESSEE IS MORE THAN THE CONSIDER ATION FOR WHICH THE PROPERTY IS RECEIVED. FURTHER AS PER THE SECOND PRO VISO TO THE SAID SECTION ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 7 THE EARLIER AGREEMENT IS RECOGNIZED AS THE DATE OF TRANSFER PROVIDED THE CONSIDERATION IS PAID ON THE DATE OF AGREEMENT BY M ODE OTHER THAN THE CASH HENCE IF THE CONSIDERATION IS PAID BY THE ASSE SSEE OTHER THAN THE CASH THEN ONLY THE AGREEMENT OF EARLIER DATE CAN BE EXIS TED AS THE DATE OF TRANSFER NOT OTHERWISE. IN THE CASE IN HAND, THE ASS ESSEE HAS CLAIMED TO HAVE PAID THE PART CONSIDERATION OF RS. 4.00 LACS I N CASH, WHICH IS HIT BY SECOND PROVISO TO SECTION 56(2)(VII)(B) OF THE ACT AND THEREFORE FOR THE PURPOSE OF SAID SECTION, THE DATE OF TRANSACTION WIL L BE CONSIDERED WHEN THE SALE DEED WAS REGISTERED. HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS CLAIMED TO HAVE PURCHASED THE PROPERTY IN QUESTION BEING B-29, SUSHANT CITY, KALWA R ROAD, JAIPUR FROM ONE SHRI NAV NARESH JHANWAR VIDE AGREEMENT DATED 28/ 3/2013. THE COPY OF THE SAID AGREEMENT IS PLACED AT PAGE NO. 1 AND 2 OF THE PAPER BOOK. THOUGH THE SAID AGREEMENT IS NOT REGISTERED BUT ONLY ATTESTED BY THE NOTARY, HOWEVER, THE PAYMENT OF PART SALE CONSIDERAT ION ON 28/3/2013 IS DULY MENTIONED IN THE SALE DEED DATED 26/4/2013. THE ASSESSING OFFICER CONSIDERED THE DATE OF TRANSACTION AS THE SALE DEED DATED 26/4/2014. ACCORDINGLY, THE ASSESSING OFFICER MADE THE ADDITIO N AS PER SECTION ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 8 56(2)(VII)(B) OF THE ACT BY ADOPTING STAMP DUTY VAL UE OF THE PROPERTY AS PURCHASE CONSIDERATION AND THE DIFFERENCE WAS ASSESS ED TO TAX. THE LD. CIT(A) WHILE DEALING WITH THE ISSUE HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER BY HOLDING AS UNDER: 3.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSE SSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD PURCHASED AN IMMOVABLE PROPERTY AT KALWAR ROAD JAIPUR FOR A C ONSIDERATION OF RS. 10,51,000/- WHICH WAS VALUED FOR STAMP PURPOSE AT R S. 22,37,060/-. IT WAS CLAIMED IN THE ASSESSMENT PROCEEDINGS THAT THE PROP ERTY HAD BEEN TAKEN POSSESSION OF ON 28/03/2013 BY EXECUTING A SALE AGR EEMENT AND RECEIVING CASH OF RS. 4,00,000/- AND RS. 6,51,000/- VIDE POST DATED CHEQUE AND THE SAME WAS GOT REGISTERED ON 28/04/2013. HOWEVER, THE ASSE SSING OFFICER BASED ON THE REPLY OF THE ASSESSEE THAT PROPERTY COULD NOT B E REGISTERED EARLIER DUE TO TECHNICAL AND LEGAL REASONS AS THE TITLE OF THE FLA T WAS NOT TRANSFERRED ON 28/03/2013 IN FAVOUR OF THE SELLER AND THE HE DID N OT HAVE THE RIGHT TO DEAL WITH THE IMMOVABLE PROPERTY AS AN OWNER ON THE DATE OF AGREEMENT. THUS, ON 26/04/2013 THE SELLER OF THE PROPERTY BECAME THE OW NER WHEN THE FLAT WAS REGISTERED BY M/S ANSAL PROPERTY AND SUBSEQUENTLY S OLD THIS LAND TO THE ASSESSEE. FURTHER, THE ASSESSING OFFICER PLACED RELIANCE ON THE REGISTERED SALE DEED WHICH CLEARLY STATED THAT THE ACTUAL PHYSICAL POSSE SSION WAS GIVEN ON 26/04/2013 I.E. ON THE DAY OF THE REGISTRY. BASED O N THE ABOVE, THE ASSESSING OFFICER APPLIED THE PROVISION OF SECTION 56(2)(VII) (B) OF THE I.T. ACT AS THE TRANSACTION RELATED TO A.Y. 2014-15. IN THE PRESENT PROCEEDINGS IT IS SUBMITTED THAT TH E ASSESSEE BY VIRTUE OF THE AGREEMENT HAD ACQUIRED FULL RIGHTS IN THE PROPERTY ON 28.03.2013 AND ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 9 THEREFORE THE PROPERTY WAS ACQUIRED DURING THE F.Y. 2012-13 AND PROVISIONS OF SECTION 56(2)(VII)(B) WERE NOT APPLICABLE. AS SEEN IN THE DISCUSSION ABOVE, ON THE DAY OF THE AGREEMENT, THE SELLER HIMSELF WAS NOT THE OWNER OF THE PROPERTY AND SO CO ULD NOT HAVE PASSED IT ON TO THE ASSESSEE. THE ENTRIES IN THE SALE DEED ALSO ESTABLISH THAT THE PROMOTER HAS HANDED OVER ACTUAL POSSESSION OF THE SAID PLOT OF LAND TO THE BUYER ON THE DAY OF THE REGISTRY THUS THE TRANSACTION HAS TO BE CONSIDERED FOR A.Y. 2014-15 & PROVISION OF SECTION 56(2)(VII)(B)(II) WOULD BE A PPLICABLE, THE ADDITION MADE IS CONFIRMED. GROUND OF APPEAL IS DISMISSED. THUS, IT IS CLEAR THAT THE LD. CIT(A) DECLINED TO ACC EPT THE CLAIM ON THE GROUND THAT THE SELLER DID NOT HAVE THE RIGHT TO DE AL WITH THE IMMOVABLE PROPERTY AS AN OWNER ON THE DATE OF AGREEMENT DATED 28/3/2013 AND ACCORDINGLY TREATED THE TRANSACTION TOOK PLACE ONLY WHEN THE SALE DEED WAS REGISTERED ON 26/4/2013. WE FIND THAT AS PER THE AGREEMENT TO SELL DATED 15/9/2013 BETWEEN THE ANSAL TOWNSHIP AND LAND D EVELOPMENT PVT. LTD. AND NAV NARESH JHANWAR, THE SAID PROPERTY WAS AG REED UPON TO BE SOLD TO THE ALLOTTEE SUBJECT TO THE PAYMENTS AS PER THE SCHEDULE ANNEXED TO THE SAID AGREEMENT. THE LD AR HAS FILED THE STATE MENT OF THE PAYMENT BY THE ALLOTTEE AND IT IS CLEAR THAT THE ALLOTTEE O F THE SAID PROPERTY HAD ALREADY MADE THE ENTIRE PAYMENT OF CONSIDERATION TO ANSAL TOWNSHIP AND LAND DEVELOPMENT PVT. LTD, SUBSEQUENTLY KNOWN AS ANS AL PROPERTIES AND INFRASTRUCTURE LTD.. THUS, IN VIEW OF THE FACT THAT THERE WAS AN AGREEMENT BETWEEN THE PARTIES AND IN PURSUANT TO THE SAID AGRE EMENT, THE ALLOTTEE ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 10 HAD ALREADY PAID THE ENTIRE CONSIDERATION TO THE DE VELOPER AND THEREFORE, THE SUBSTANTIAL AND MATERIAL RIGHTS IN THE SAID PRO PERTY GOT VESTED WITH THE ALLOTTEE. HENCE THE COMPETENCE OF THE ALLOTTEE TO T RANSFER THE SAID PROPERTY TO THE EXTENT OF HIS RIGHT IN THE PROPERTY CANNOT B E DISPUTED. THOUGH, THE FORMAL SALE DEED WAS EXECUTED BY THE DEVELOPER ANSAL PROPERTIES AND INFRASTRUCTURE LTD. ONLY ON 26/4/2013, HOWEVER, THE SAID SALE DEED HAS NOT CREATED IN A NEW RIGHT IN FAVOUR OF THE ALLOTTEE BUT RATIFIED THE RIGHTS IN THE SAID PROPERTY ALREADY VESTED WITH THE ALLOTTEE. HENC E, AS ON 23/3/2013, THE SELLER WAS VERY MUCH COMPETENT TO TRANSFER HIS R IGHTS IN THE PROPERTY IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, WE DO NOT FIND ANY SUBSTANCE AND MERIT IN THE REASONS ASSIGNING BY THE LD. CIT(A) TO DENY THE CLAIM OF THE ASSESSEE WHICH IS LEGALLY SUSTAINABLE. FURTHER IT I S ALSO NOT IN DISPUTE THAT AS PER THE SALE DEED DATED 26/4/2013, A PART PAYMEN T OF RS. 4.00 LACS WAS STATED TO HAVE BEEN PAID ON 28/3/2013 WHICH CORROBOR ATES THE EXISTENCE OF THE AGREEMENT BETWEEN THE PARTIES AS ON 28/3/2013 . THE TERM TRANSFER U/S 2(47)(V) OF THE ACT READ WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT INCLUDES IF A RIGHT IN THE PROPERTY IS TRANSFER RED BY ONE PERSON TO ANOTHER PERSON THEREBY THE SAID RIGHT GET EXTINGUIS HED FROM TRANSFEROR AND VESTED WITH THE TRANSFEREE BY VIRTUE OF AN AGREEMENT TO SELL THEN TO THAT EXTENT IT AMOUNTS TO TRANSFER OF CAPITAL ASSETS. EV EN OTHERWISE THE DEFICIENCY OF REGISTRATION IN THE AGREEMENT WAS SUBS EQUENTLY MADE UP AS ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 11 THE SALE DEED WAS EXECUTED AND REGISTERED AND THEREF ORE, THE TRANSACTION OF TRANSFER WOULD TAKE EFFECT FROM THE DATE OF AGREE MENT WHICH WAS SUBSEQUENTLY CULMINATED INTO THE SALE DEED. ACCORDI NGLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE AGREEMENT TO SELL DATED 28/3/2013 HAS NOT BEEN HELD TO BE BOGUS THEN THE TRANSACTION WOULD BE TREATED TO HAVE BEEN COMPLETED ON 28/3/2013 AND CONSEQUENTLY T HE SAME WOULD NOT FALL IN THE YEAR UNDER CONSIDERATION. ONCE THE TRAN SACTION OF PURCHASE OF PROPERTY IN QUESTION IS COMPLETED IN THE PRECEDING YEAR THEN THE PROVISIONS OF SECTION 56(2)(VII)(B) OF THE ACT CANNOT BE INVOK ED ON SUCH TRANSACTION. HENCE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BE LOW AND DELETE THE ADDITION MADE BY THE ASSESSING OFFICER. WE MAKE IT CLEAR THAT THE ASSESSING OFFICER IS NOT REMEDILESS SO FAR AS THE A SSESSMENT OF ANY INCOME EVEN FOR THE EARLIER ASSESSMENT YEAR I.E. 2013-14. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 05/10/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05 TH OCTOBER, 2018 *RANJAN ITA 227/JP/2018_ SANJAY KR. GUPTA VS ACIT 12 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SANJAY KUMAR GUPTA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CIRCLE-5, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 227/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR