Shri. Prakash Ganpatrao Ghorpade, Kolhapur V. Income-Tax Officer, Ward-2(3), Kolhapur

ITA 243/PUN/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0824 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 12-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Capital Gains
• Section: 54; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER आयकर अपील सं. / ITA No.243/PUN/2020 नधा रण वष / Assessment Year : 2011-12 Prakash Ganpatrao Ghorpade, 1330,18, E-Ward, Shastri Nagar, Kolhapur – 416008 PAN : AAYPG7062L Vs. ITO, Ward-2(3), Kolhapur (Appellant) (Respondent) आदेश / ORDER PER S.S. GODARA, JM : This assessee’s appeal for AY 2011-12 arises against the CIT(A)-2, Kolhapur’s order dated 16-12-2019 passed in case No. Kop/CIT(A)-2/10370/2018-19 involving proceedings under Section 143(3) r.w.s.147 of the Income Tax Act, 1961 in short the Act. Case called twice. None appears on assessee’s behest. He is accordingly proceeded ex parte. 2. Coming to the assessee’s sole substantive grievance that both the lower authorities have erred in law and on facts in holding him to have transferred the capital asset in issue in A.Y. 2011-12, it transpires with the able assistance coming from the Revenue’s side that this taxpayer had executed the Appellant by None Respondent by Shri Arvind Desai Date of hearing 26-05-2022 Date of pronouncement 30-05-2022 ITA No. 243/PUN/2020 Prakash G. Ghorpade 2 corresponding development agreement as on 30-03-2010, i.e. relevant to A.Y. 2010-11 whose registration was completed on 01-04-2010 only. 3. Learned departmental representative vehemently argued that both the lower authorities have rightly set into motion section 148/147 mechanism in light of the foregoing registration coming into effect only from 01-04-2010 onwards. I find no merit in the Revenue’s instant arguments as this tribunal’s coordinate bench order in ITA No.1849/PUN/2018 in Smt. Beena Shammi Chaudhari Vs. ITO dated 17-02-2022 has already accepted the very issue in taxpayer’s favour as follows : “9. Now I turn to contention of the ld. AR on section 47 of the Registration Act. This section with the heading `Time from which registered document operates‟ provides that : `A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration‟. A document is first executed and then submitted for registration, if required. Normally, it takes some time between executing a document and its registration because the same has to be submitted for registration; checked by the competent authorities; and then actually registered. Unless a document is revoked before its actual registration, the parties submit themselves to the contents of the document by signing it, which coincides with its execution itself. Unless contrary is agreed between the parties in the document, it is from its execution that the parties intend to act upon it and make it operational. Section 47 of the Registration Act states that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made (that is, on its execution). It means that the time lag between the execution of a document and its registration is ignored insofar as its operation is concerned. Thus, all the documents, whether or not requiring registration, operate from the date of their execution and the date of registration, where registration is mandatory, is irrelevant insofar as their operation is concerned. Whereas, section 17 of the Registration Act lists the ITA No. 243/PUN/2020 Prakash G. Ghorpade 3 documents whose registration is compulsory and section 49 of the Registration Act deals with the effects of non-registration of documents required to be registered u/s 17 of that Act, section 47 of the Registration Act deals with an altogether different aspect of time from which a registered document operates. It is only after a document required to be registered is actually registered as per section 17 of the Registration Act that the controversy of timing of operation of registration comes in to play, which is exclusively covered by section 47 of the Registration Act. 10. Coming to section 45 of the Act, which is a charging section for capital gains, provides that any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in sections 54 etc., be chargeable to income tax under the head "Capital gains", and shall be deemed to be the income of the previous year in which the transfer took place. Manifestly, income under this head becomes chargeable to tax in the year in which the transfer takes place. `Transfer‟ takes place only when it becomes operational, that is, on executing the sale deed - neither before it, that is, when the parties are in the process of negotiations, nor after it, that is, when the registration of the deed actually takes place. 11. Adverting to the facts of the extant case, I find that the sale deed, even though registered on 17.04.2008, was admittedly executed on 15.12.2007, which date falls in the previous year relevant to the A.Y. 2008-09 and, as such, the amount of capital gain becomes chargeable to tax in such preceding assessment year. Since the `transfer‟ of the property took place on execution of sale deed in the preceding year, I hold that the amount of capital gain cannot be charged to tax for the A.Y. 2009-10 under consideration. On a specific query, the ld. AR candidly admitted that no capital gain was offered for taxation by the assessee in her return for the A.Y. 2008-09 or any other year. The AO is at liberty to take necessary action for taxing the amount in the correct assessment year as per law.” 4. I adopt the above extracted detailed discussion mutatis mutandis to delete the impugned addition of Rs.8,48,200/- under the head long term capital gains. The assessee succeeds in his sole substantive ground. ITA No. 243/PUN/2020 Prakash G. Ghorpade 4 5. This assessee’s appeal is allowed. Order pronounced in the Open Court on 30 th May, 2022. Sd/- (S.S.GODARA) JUDICIAL MEMBER प ु णे Pune; दनांक Dated : 30 th May, 2022 Satish आदेश क त ल प अ े षत / Copy of the Order is forwarded to : 1. अपीलाथ / The Appellant; 2. यथ / The Respondent; 3. 4. 5. The CIT(A)-2, Kolhapur The Pr.CIT-2, Kolhapur वभागीय त न ध, आयकर अपील!य अ धकरण, प ु णे “SMC” / DR ‘SMC’, ITAT, Pune; 6. गाड फाईल / Guard file. आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune ITA No. 243/PUN/2020 Prakash G. Ghorpade 5 Date 1. Draft dictated on 26-05-2022 Sr.PS 2. Draft placed before author 27-05-2022 Sr.PS 3. Draft proposed & placed before the second member -- JM 4. Draft discussed/approved by Second Member. -- JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order.