Late Hajaram Beevi Rep by L/H Mohammed Saleem, CHENNAI V. DCIT Non Corporate Ward 11(2), CHENNAI

ITA 2729/CHNY/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7484 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 24-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: I DINESH MS R ANITA
• Keywords: Opportunity of being heard; Capital Gains
• Section: 54

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A. NO.2729/CHNY/2018 / ASSESSMENT YEAR: 2008-09 LATE HAJARAM BEEVI REP. BY L/H MOHAMMED SALEEM, NO. 1, R.K. SALAI, 4 TH STREET, MYLAPORE, CHENNAI 600 004. [ PAN: AAXPH7789N] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE WARD 11(2), 1 ST FLOOR, KANNAMMAI BUILDING, NO. 611, ANNA SALAI, CHENNAI 600 006. ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI I. DINESH, ADVOCATE /RESPONDENT BY : MS. R. ANITA, ADDL. CIT / DATE OF HEARING : 25.08.2021 /DATE OF PRONOUNCEMENT : 30.08.2021 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 13, CHENNAI, DATED 29.08.2018 RELEVANT TO THE ASSESSMENT YEAR 2008-09. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS RELATING TO DATE OF REGISTRATION OF SALE DEED. WHEN THIS APPEAL WAS TAKEN UP FOR HEARING, THE LD. COUNSEL FO THE ASSESSEE HAS SUBMITTED THAT IN THE VERY SAME PROPERTY IN CO-OWNERS CASE IN I.T.A. NO. 2837/M/2016 DATED 30.03.2017 IN THE CASE OF DR. SHAIK DAWOOD V. ITO, THE ITAT HAS REMITTED THE MATTER BACK TO THE FILE OF THE LD. I.T.A. NO. 2729/CHNY/2018 2 CIT(A) TO ASCERTAIN THE DATE OF EXECUTION OF SALE DEED AND SUBMITTED THAT THIS APPEAL MAY BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) TO ASCERTAIN THE DATE OF EXECUTION OF SALE DEED. 3. ON THE OTHER HAND, THE LD. DR HAS NOT RAISED ANY OBJECTION. 4. WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW INCLUDING CASE LAW RELIED ON BY THE ASSESSEES AR. IN THE VERY SAME PROPERTY IN CO-OWNERS CASE IN I.T.A. NO. 2837/M/2016 DATED 30.03.2017 IN THE CASE OF DR. SHAIK DAWOOD V. ITO, THE TRIBUNAL HAS REMITTED THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ASCERTAIN THE DATE OF EXECUTION OF SALE DEED FOR THE PURPOSE OF CAPITAL GAINS. RELEVANT PORTION OF THE ORDER IS EXTRACTED AS UNDER: 7.5 HOWEVER, AT PAGE 3 OF THE REGISTERED SALE DEED EXECUTED ON 12.04.2007, IT IS MENTIONED THAT AS ON THE DATE OF EXECUTION OF THE SALE DEED, THE POSSESSION WAS GIVEN TO THE PURCHASER. IF IT IS SO, IT IS NOT CLEAR AS TO WHEN THE PURCHASER HAS TAKEN POSSESSION OF THE PROPERTY. FURTHER, THERE IS NO RECITAL IN THE REGISTERED SALE DEED ABOUT THE AGREEMENT FOR SALE EXECUTED BY THE ASSESSEE WITH THE PURCHASER. 7.6 MOREOVER, ON PERUSAL OF THE REGISTERED SALE DEED DATED 14.02.2007, IT IS MENTIONED THAT ENTIRE SALE CONSIDERATION WAS RECEIVED BY WAY OF CHEQUES, BUT, THE SALE DEED DOES NOT TRANSPIRE WHEN THE SALE CONSIDERATION WAS ACTUALLY RECEIVED BY THE ASSESSEE. AS PER SECTION 54 OF THE TRANSFER OF PROPERTY ACT, 1882, THE SALE IS A TRANSFER OF OWNERSHIP IN EXCHANGE FOR A PRICE PAID OR PROMISED OR PART-PAID AND PART-PROMISED. 7.7 UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE REMIT THE MATTER BACK TO THE LD. CIT(A) WITH A DIRECTION TO VERIFY THE DETAILS AND EXAMINE AS TO WHEN THE ASSESSEE HAS RECEIVED THE SALE CONSIDERATION AND WHEN THE PURCHASER HAS TAKEN POSSESSION OF THE PROPERTY OF THE ASSESSEE. WE I.T.A. NO. 2729/CHNY/2018 3 ALSO DIRECT THE ASSESSEE TO FILE THE ENGLISH VERSION OF THE SALE DEED AND RECEIPT OF PAYMENT DETAILS, ETC. BEFORE THE LD. CIT(A) FOR VERIFICATION AND DECIDING THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING SUFFICIENT OPPORTUNITIES OF HEARING BOTH THE SIDES. IN VIEW OF THE ABOVE DECISION OF THE ITAT, THE FACTS IN THE PRESENT CASE ARE MUTATIS MUTANDIS APPLICABLE , WE CANCEL THE ORDER PASSED BY THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH CONSIDERATION AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 30 TH AUGUST, 2021 AT CHENNAI. SD/- SD/- (G. MANJUNATHA) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 30.08.2021 VM/- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.