M.Bhuvaneswari, Coimbatore V. DCIT Central Circle 1, Coimbatore

ITA 3168/CHNY/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5012 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 26-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K RAGHU
• Keywords: Capital asset
• Section: 143(3); 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D BENCH, CHENNAI , . , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.3168/CHNY/2017 ( / ASSESSMENT YEAR: 2010-11) SMT. M. BHUVANESWARI, 137, SIVASUBRAMANIAM ROAD, R.S. PURAM, COIMBATORE 641 002. VS THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, COIMBATORE PAN: AGZPB0983C ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI K. RAGHU, CA / RESPONDENT BY : SHRI JASDEEP SINGH, CIT /DATE OF HEARING : 20.12.2018 /DATE OF PRONOUNCEMENT : 30.01.2019 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-18, COIMBATORE, DATED 30.11.2017 IN ITA NO.313/16-17 FOR THE ASSESSMENT YEAR 2010-11 PASSED U/S. 250(6) R.W.S.153C R.W.S. 153A & 143(3) OF THE ACT. 2 ITA NO.3168/CHNY /2017 2. THE ASSESSEE HAS RAISED FIVE GROUNDS IN HER APPEAL HOWEVER THE CRUXES OF THE ISSUES ARE THAT I. THE LD.CIT(A) HAS ERRED BY UPHOLDING THE VALIDITY OF JURISDICTION ASSUMED BY THE LD.AO FOR PASSING ORDERS U/S.153C R.W.S. 153A R.W.S 143(3) OF THE ACT. II. THE LD.CIT(A) HAS ERRED BY UPHOLDING THE ORDER OF THE LD.AO, WHO HAD HELD THAT THE ASSESSEE HAD TRANSFERRED HER 90 CENTS OF LAND IN SF NO.675 AT UPPLIPALAYAM VILLAGE DURING THE ASSESSMENT YEAR 2010-11 KEEPING IN VIEW OF THE PROVISIONS OF SECTION 2(47) OF THE ACT AND ACCORDINGLY LIABLE FOR CAPITAL GAIN TAX FOR THE RELEVANT ASSESSMENT YEAR 2010- 11. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010- 11 ON 05.01.2011 ADMITTING TOTAL INCOME OF RS.2,69,220/-. SUBSEQUENTLY A SEARCH U/S.132 OF THE ACT WAS CONDUCTED IN THE CASE OF SHRI S. ARPUTHARAJ ON 24.02.2015 AND PROCEEDINGS WERE INITIATED U/S.153A OF THE ACT. DURING THE COURSE OF SEARCH IN THE PREMISES OF SHRI S. ARPUTHARAJ, A SALE AGREEMENT BEARING NO.23744 DATED 20.08.2009 IN INDIAN NON-JUDICIAL STAMP PAPER NO.L 651947 3 ITA NO.3168/CHNY /2017 WHICH RELATES TO THE ASSESSEE SMT. M. BHUVANESWARI WAS FOUND AND SEIZED VIDE SA/33 DATED 27.02.2015 IN PAGE NO.60 TO 63. WHEN CONFRONTED WITH THE ASSESSEE SHE ADMITTED THAT SHE HAD RECEIVED THE ENTIRE SALE CONSIDERATION OF RS.1.25 CRORES VIDE DEMAND DRAFT NO.62306 AND 22468 DRAWN ON AXIS BANK DATED 20.08.2009 AND ALSO AGREED TO PAY CAPITAL GAIN TAX THEREON. HOWEVER THE ASSESSEE DID NOT ADMIT THE CAPITAL GAIN FOR THE RELEVANT ASSESSMENT YEAR 2010-11 IN THE RETURN FILED BY HER ON 05.01.2011. 4. THE LD.AR SUBMITTED BEFORE US THAT DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS THE ASSESSEE HAD EXPLAINED VIVIDLY BEFORE THE LD.AO ABOUT THE TRANSACTION OF HER IMMOVABLE PROPERTY AS FOLLOWS:- 1) THE ASSESSEE HAD ONLY EXECUTED A POWER OF ATTORNEY IN FAVOUR OF SHRI A. JOSEPH IN THE RELEVANT ASSESSMENT YEAR, TO DEAL WITH HER PROPERTY IN THE MANNER PRESCRIBED, WHICH WAS REGISTERED AS DOCUMENT NO.458/9 ON 20.08.2009 IN THE OFFICE OF THE SUB-REGISTRAR, PEELAMEDU. 4 ITA NO.3168/CHNY /2017 2) THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.1,25,00,000/- ON 22.08.2009 VIDE DEMAND DRAFT TOWARDS THE IMMOVABLE PROPERTY. 3) SHRI A.JOSEPH ACTING AS THE POWER AGENT OF THE ASSESSEE HAD ENTERED IN TO A SALE AGREEMENT WITH SHRI S. ARPUTHARAJ ON 06.02.2014 WHICH WAS REGISTERED AS DOCUMENT NO.1460/2014. 4) THEREAFTER SHRI JOSEPH ACTING AS A POWER AGENT OF THE ASSESSEE HAD EXECUTED SALE DEED IN FAVOUR OF SHRI S. ARPUTHARAJ ON 07.04.2014 WHICH WAS REGISTERED AS DOCUMENT NO.3397 / 20147. 5) SINCE THE SALE DEED WAS EXECUTED ON 07.04.2014 THE TRANSFER OF THE ASSET ACCORDING TO PROVISIONS OF SECTION 2(47) OF THE ACT WOULD BE THE ASSESSMENT YEAR 2015-16 AND NOT ASSESSMENT YEAR 2010-11 AS OPINED BY THE LD.AO AND ACCORDINGLY THE ASSESSEE WOULD BE EXIGIBLE FOR CAPITAL GAIN TAX FOR THE ASSESSMENT YEAR 2015-16. 6) THE ASSESSEE FURTHER RELIED IN THE DECISION OF THE JURISDICTIONAL MADRAS HIGH COURT IN THE CASE CIT VS. G.SAROJA REPORTED IN 301 ITR 124. 5 ITA NO.3168/CHNY /2017 IT WAS FURTHER SUBMITTED THAT THE LD.AO DISTINGUISHING THE DECISION RELIED BY THE ASSESSEE ERRONEOUSLY HELD THAT THE TRANSFER OF THE ASSET HAS TAKEN PLACE AS PER THE PROVISIONS OF THE ACT IN THE ASSESSMENT YEAR 2010-11 AND ACCORDINGLY THE ASSESSEE IS LIABLE FOR CAPITAL GAIN TAX FOR THE ASSESSMENT YEAR 2010-11. ON THE OTHER HAND THE LD.DR ARGUED IN SUPPORT OF THE ORDERS OF THE LD.REVENUE AUTHORITIES REITERATING THEIR FINDINGS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. THE LD.AO HAD HELD THAT THE TRANSFER OF THE PROPERTY HAD TAKEN PLACE IN THE RELEVANT ASSESSMENT YEAR 2010-11 BY OBSERVING AS FOLLOWS:- 2.11 IT IS EVIDENT FROM THE GENERAL POWER OF ATTORNEY GIVEN TO SHRI A. JOSEPH ON 20.08.2009 VIDE REGISTERED DOCUMENT NO.458/2009. SHRI A. JOSEPH WAS GIVEN POWER TO LOOK FOR POTENTIAL BUYERS, TO NEGOTIATE WITH BUYERS AND TO SIGN ALL DOCUMENTS,. IT IS PERTINENT TO MENTION THAT THE ASSESSEE HAS RECEIVED THE FULL SALE CONSIDERATION OF RS.1.25 CRORES ON 22.08.2009 BY MEANS OF DEMAND DRAFTS NO.062306 AND 022468. ANY TRANSACTION INVOLVING ALLOWING OF POSSESSION TO BE TAKEN OVER OR RETAINED IS PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SEC 53A OF THE TRANSFER OF PROPERTY ACT WOULD COME WITHIN THE AMBIT OF SEC 2(47)(V). HENCE, THE TRANSFER OF PROPERTY HAS TAKEN PLACE IN THE FINANCIAL YEAR 2009-10AND THE CAPITAL GAIN IS TAXABLE IN THE YEAR IN WHICH SUCH TRANSACTION IS ENTERED INTO EVEN IF THE TRANSFER OF IMMOVABLE PROPERTY IS NOT EFFECTIVE OR COMPLETE UNDER THE GENERAL LAW. 2.12 THE ASSESSEE HAS TREATED AY 2015-16 AS YEAR OF TRANSFER AND OFFERED RS.1.26 CRORE AS SALE CONSIDERATION AND COMPUTED CAPITAL GAINS ON IT AFTER CLAIMING DEDUCTION U/S.54F. AS PER THE RETURN OF INCOME FILE BY THE ASSESSEE ON 31.05.2016 FOR AY 2015-16, THE TAXABLE CAPITAL GAIN AS ARRIVED AT BY THE ASSESSEE 6 ITA NO.3168/CHNY /2017 IS NIL. HENCE, FOR THE AY 2010-11, THE CAPITAL GAIN WHICH IS WORKED IN PARA 2.13 IS BROUGHT TO TAX SUBSTANTIALLY IN THE HANDS OF SMT. M. BHUVANESHWARI FOR THE AY 2010-11. 2.13 CONSIDERING THE ABOVE FACTS, THE SALE CONSIDERATION RECEIVED ON 22.08.2209 IS ASSESSED FOR AY 2010-11. 5.1 FURTHER THE LD.CIT(A) ALSO CONFIRMED THE ORDER OF THE LD.AO WITH THE FOLLOWING OBSERVATION. 7.7.1 I HAVE CONSIDERED THE OBSERVATIONS OF THE AO AS MADE BY HIM IN THE ORDER DT. 21.11.2016 WHICH IS UNDER CHALLENGE. I HAVE ALSO CONSIDERED THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. I HAVE FURTHER CONSIDERED JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE AO MORE SPECIFICALLY THE ORDER OF THE HON'BLE P&H HC IN THE CASE OF SHRI C.S.ATWAL & OTHERS DT. 22.07.2015 REPORTED IN ITA NO.200 OF 2013 AND OTHER MATERIAL BROUGHT ON RECORD. ON CAREFUL CONSIDERATION, IT HAS BEEN NOTICED THAT, THE TOTAL CONSIDERATION WITH ASSESSEE WAS SETTLED AT RS.1.25 CRORES DURING THE F.Y.2009-10 WHICH IS REFLECTED IN THE BANK ACCOUNT STATEMENT ALSO. 7.7.2. THE ASSESSEE DID NOT DECLARE CAPITAL GAINS ON THE SALE OF SUCH LAND AND THEREFORE, THE SAME WAS BROUGHT TO TAX FOR THE A.Y.2010-11. 7.7.3. ACCORDING TO AO, THE APPELLANT HAD RECEIVED FULL SALE CONSIDERATION OF RS.1.25 CRORES ON 20.08.2009. 7.7.4. IN THE EVENTUALITY, PROFITS ON ACCOUNT OF CAPITAL GAINS WOULD BE TAXABLE IN THE YEAR IN WHICH SUCH TRANSACTIONS ARE ENTERED INTO, EVEN IF A TRANSFER OF IMMOVABLE PROPERTY IS NOT EFFECTIVE OR COMPLETED UNDER THE GENERAL LAW. 7.7.5. FOR THE TRANSFER U/S 2(47)(V) OF THE ACT IF THE FOLLOWING CONDITIONS ARE SATISFIED, THE TRANSACTION TREATED AS TRANSFER: I) THERE MUST BE A TRANSACTION INVOLVING THE ALLOWING OF THE POSSESSION OF IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT AND 7 ITA NO.3168/CHNY /2017 II) THE TRANSFEREE HAS PERFORMED OR IS WILLING TO PERFORM HIS PART OF THE CONTRACT, HAS DONE SOME ACT IN FURTHERANCE OF THE CONTRACT. 7.7.6. THEREFORE SEC.2(47)(V) HAS BEEN ENACTED AND IN SUCH CASES, EVEN ENTERING INTO SUCH A CONTRACT COULD AMOUNT TO TRANSFER FROM THE DATE OF AGREEMENT ITSELF. UNDER SECTION 2(47)(V) OF THE ACT, ANY TRANSACTION INVOLVING ALLOWING OF POSSESSION REFERRED TO SEC.53A OF THE TRANSFER OF PROPERTY ACT WOULD COME WITHIN THE AMBIT OF TRANSFER. EVEN ARRANGEMENT CONFERRING PRIVILEGES OF OWNERSHIPS WITHOUT TRANSFER OF TITLE WOULD COME WITHIN THE AMBIT OF SEC.2(47)(V) OF THE ACT. THE WHOLE SCHEME FOR INTRODUCTION OF CLAUSES (V) AND (V) IN SEC.2(47) OF THE ACT WAS THAT THE CAPITAL GAIN IS TAXABLE IN THE YEAR IN WHICH SUCH TRANSACTIONS ARE ENTERED INTO EVEN IF THE TRANSFER OF IMMOVABLE PROPERTY IS NOT EFFECTIVE OR COMPLETE UNDER THE GENERAL LAW. 7.7.7. IN VIEW OF THE ABOVE STATED FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI.C.S.ATWAL, I AGREE WITH THE ASSESSING OFFICER'S CONCLUSION THAT THE YEAR OF CHARGEABILITY OF CAPITAL GAIN TAX WILL ARISE IN THE YEAR IN WHICH THE TRANSACTION WAS ENTERED INTO I.E., FOR THE A.Y.2010-11. HENCE THE ACTION OF THE A.O. IS UPHELD AND THE ADDITION IS SUSTAINED. 5.2 FROM THE ORDERS OF THE LD.REVENUE AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD, THE FOLLOWING FACTS ARE REVEALED:- 1) THE ASSESSEE HAS ONLY EXECUTED POWER OF ATTORNEY IN FAVOUR OF SHRI A. JOSEPH IN ORDER TO DEAL WITH HER PROPERTY IN THE PRESCRIBED MANNER AGAINST WHICH SHE HAS RECEIVED AN AMOUNT OF RS.1,25,00,000/-. 2) THE ASSESSEE HAS NOT HANDED OVER THE POSSESSION OF THE PROPERTY EITHER TO SHRI A. JOSEPH OR TO SHRI S. ARPUTHARAJ 8 ITA NO.3168/CHNY /2017 BEFORE THE EXECUTION OF THE SALE DEED BY SHRI A. JOSEPH ON BEHALF OF THE ASSESSEE IN FAVOUR OF SHRI S. ARPUTHARAJ. 3) THE SALE AGREEMENT WHICH IS PURPORTED TO HAVE BEEN EXECUTED BY THE ASSESSEE IS AN UNSIGNED DOCUMENT. 4) ONLY AFTER THE EXECUTION OF THE SALE DEED ON 07.04.2014 BY SHRI A. JOSEPH ON BEHALF OF THE ASSESSEE IN FAVOUR OF SHRI S. ARPUTHARAJ THE POSSESSION HAS BEEN HANDED OVER. 5) THE ASSESSEE HAS ALSO DECLARED THE CAPITAL GAIN EARNED BY HER FROM THE SALE OF THE IMMOVABLE PROPERTY IN HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2015-16 AND CLAIMED DEDUCTION. 5.3 CONSIDERING THE ABOVE FACTS, WE FIND MERITS IN THE SUBMISSION OF THE LD.AR, THAT THE RATIO LAID DOWN IN THE DECISION RELIED BY THE ASSESSEE IN THE CASE CIT V. G. SAROJA CITED SUPRA, IS APPLICABLE TO THE CASE OF THE ASSESSEE. IN THE CASE G.SAROJA CITED SUPRA, THE HONBLE JURISDICTIONAL HIGH COURT HAD HELD THE ISSUE IN FAVOUR OF THE ASSESSEE BY RELYING ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE NATHULAL VS. PHOOLCHAND. THE RELEVANT PORTION OF THE DECISION IS EXTRACTED HEREIN BELOW FOR REFERENCE:- 9 ITA NO.3168/CHNY /2017 HEARD COUNSEL. THE DISPUTE IN THIS CASE IS REGARDING THE ASSESSMENT YEAR IN WHICH THE TRANSFER OF LAND HAS TO BE ASSESSED. IT IS NOT IN DISPUTE THAT THERE IS NO WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND THE BUILDER. A WRITTEN AGREEMENT IS A BASIC REQUIREMENT FOR INVOKING THE PROVISION OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT. SECTION 53A OF THE TRANSFER OF PROPERTY ACT, READS AS UNDER:- '53A. PART PERFORMANCE.-WHERE ANY PERSON CONTRACTS TO TRANSFER FOR CONSIDERATION ANY IMMOVABLE PROPERTY BY WRITING SIGNED BY HIM OR ON HIS BEHALF FROM WHICH THE TERMS NECESSARY TO CONSTITUTE THE TRANSFER CAN BE ASCERTAINED WITH REASONABLE CERTAINTY, AND THE TRANSFEREE HAS, IN PART PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF THE PROPERTY OR ANY PART THEREOF, OR THE TRANSFEREE, BEING ALREADY IN POSSESSION, CONTINUES IN POSSESSION IN PART PERFORMANCE OF THE CONTRACT AND HAS DONE SOME ACT IN FURTHERANCE OF THE CONTRACT, AND THE TRANSFEREE HAS PERFORMED OR IS WILLING TO PERFORM HIS PART OF THE CONTRACT, THEN, NOTWITHSTANDING THAT WHERE THERE IS AN INSTRUMENT OF TRANSFER, THAT THE TRANSFER HAS NOT BEEN COMPLETED IN THE MANNER PRESCRIBED THEREFOR BY THE LAW FOR THE TIME BEING IN FORCE, THE TRANSFEROR OR ANY PERSON CLAIMING UNDER HIM SHALL BE DEBARRED FROM ENFORCING AGAINST THE TRANSFEREE AND PERSONS CLAIMING UNDER HIM ANY RIGHT IN RESPECT OF THE PROPERTY OF WHICH THE TRANSFEREE HAS TAKEN OR CONTINUED IN POSSESSION, OTHER THAN A RIGHT EXPRESSLY PROVIDED BY THE TERMS OF THE CONTRACT: PROVIDED THAT NOTHING IN THIS SECTION SHALL AFFECT THE RIGHTS OF A TRANSFEREE FOR CONSIDERATION WHO HAS NO NOTICE OF THE CONTRACT OR OF THE PART PERFORMANCE THEREOF.' IN THE CASE OF NATHULAL VS. PHOOLCHAND, AIR 1970 SC 546, THE APEX COURT CONSIDERED THE SCOPE OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT AND HELD AS FOLLOWS (PAGE 548):- '(1) THAT THE TRANSFEROR HAS CONTRACTED TO TRANSFER FOR CONSIDERATION ANY IMMOVABLE PROPERTY BY WRITING SIGNED BY HIM OR ON HIS BEHALF FROM WHICH THE TERMS NECESSARY TO CONSTITUTE THE TRANSFER CAN BE ASCERTAINED WITH REASONABLE CERTAINTY; (2) THAT THE TRANSFEREE HAS, IN PART PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF THE PROPERTY OR ANY PART THEREOF, OR THE TRANSFEREE, BEING ALREADY IN POSSESSION CONTINUES IN POSSESSION IN PART PERFORMANCE OF THE CONTRACT; 10 ITA NO.3168/CHNY /2017 (3) THAT THE TRANSFEREE HAS DONE SOME ACT IN FURTHERANCE OF THE CONTRACT; AND (4) THAT THE TRANSFEREE HAD PERFORMED OR IS WILLING TO PERFORM HIS PART OF THE CONTRACT.' SECTION 2(47)(V) OF THE INCOME-TAX ACT READS AS FOLLOWS:- ''TRANSFER', IN RELATION TO A CAPITAL ASSET, INCLUDES, - .. (V) ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882); OR' SECTION 2(47)(V) OF THE INCOME-TAX ACT COMES INTO THE AID OF THE DEPARTMENT ONLY IF THE CONDITIONS OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT ARE SATISFIED. FROM A READING OF THE ABOVE PROVISIONS, IT IS CLEAR THAT UNLESS THERE IS A WRITTEN AGREEMENT, SECTION 53A OF THE TRANSFER OF PROPERTY ACT WILL NOT COME INTO OPERATION. IN THE PRESENT CASE, THERE IS NO WRITTEN AGREEMENT AND NO SALE CONSIDERATION WAS RECEIVED DURING THE RELEVANT PERIOD. THE REVENUE IS ALSO UNABLE TO PROVE THAT THE ASSESSEE HAD PUT THE DEVELOPER IN POSSESSION OF THE PROPERTY BY RECEIVING THE CONSIDERATION PARTLY OR IN FULL. THE FACT REMAINS THAT THERE IS NO SALE AGREEMENT BETWEEN THE ASSESSEE AND THE BUILDER AND ALSO THE ASSESSEE HAD NOT RECEIVED THE SALE CONSIDERATION. HENCE, THE TRIBUNAL IS RIGHT IN HOLDING THAT THERE IS NO TRANSFER OF PROPERTY, AS CONTEMPLATED UNDER SECTION 2(47(V) OF THE ACT. THE REASONS GIVEN BY THE TRIBUNAL ARE BASED ON VALID MATERIALS AND EVIDENCE AND WE DO NOT FIND ANY ERROR OR LEGAL INFIRMITY IN THE ORDER OF THE TRIBUNAL SO AS TO WARRANT INTERFERENCE. 5.4 FROM THE ABOVE IT IS CRYSTAL CLEAR THAT AS PRESCRIBED U/S.2(47) OF THE ACT, FOR TREATING A TRANSACTION WITH RESPECT TO IMMOVABLE PROPERTY AS TRANSFER, ALL THE FOLLOWING CONDITIONS HAS TO BE FULFILLED, SUCH AS, EXISTENCE OF SALE AGREEMENT, HANDING OVER POSSESSION OF THE IMMOVABLE PROPERTY AND PART PERFORMANCE OF THE SALE CONSIDERATION. HOWEVER IN THE CASE OF THE ASSESSEE THE 11 ITA NO.3168/CHNY /2017 POSSESSION OF THE IMMOVABLE PROPERTY IS NOT HANDED OVER TO THE BUYER BEFORE THE EXECUTION OF THE SALE DEED AND THERE IS NO VALID SALE AGREEMENT BECAUSE THE SAME IS NOT SIGNED BY THE ASSESSEE. IT IS PERTINENT TO MENTION THAT BY MERELY EXECUTING POWER OF ATTORNEY BY THE ASSESSEE IN FAVOUR OF SHRI A. JOSEPH DOES NOT MEAN THAT TRANSFER OF PROPERTY HAD TAKEN PLACE AS PER SECTION 2(47) OF THE ACT. POWER OF ATTORNEY IS ONLY A LEGAL SANCTION GRANTED BY THE OWNER OF THE PROPERTY TO THE POWER AGENT TO DEAL WITH THE PROPERTY IN THE MANNER PRESCRIBED. FURTHER, EVEN WHEN THE SALE CONSIDERATION IS RECEIVED, IN THE ABSENCE OF SALE AGREEMENT OR ANY OTHER AUTHENTICATED DOCUMENT PERTAINING TO THE SAME, SPECIFIC PERFORMANCE FOR EXECUTING THE SALE DEED OF THE IMMOVABLE PROPERTY CANNOT BE LEGALLY ENFORCED. MOREOVER EVEN IN A SITUATION WHERE THE ASSESSEE HAS RECEIVED THE ENTIRE SALE CONSIDERATION WITHOUT HANDING OVER POSSESSION OF HER IMMOVABLE PROPERTY AND EXECUTION OF SALE DEED OR SALE AGREEMENT, IT CANNOT BE SAID THAT TRANSFER HAS TAKEN PLACE AS PER SECTION 2(47) OF THE ACT. THEREFORE IN THE CASE OF THE ASSESSEE EVEN THOUGH SALE CONSIDERATION WAS RECEIVED PRIOR TO THE EXECUTION OF SALE DEED, IT CAN BE ONLY LEGALLY HELD THAT THE TRANSFER OF THE PROPERTY HAD TAKEN PLACE ON 07.04,2014 BECAUSE THE SALE DEED OF THE ASSESSEES IMMOVABLE PROPERTY WAS EXECUTED ON 12 ITA NO.3168/CHNY /2017 07.04.2014 COUPLED WITH HANDING OVER THE POSSESSION OF THE IMMOVABLE PROPERTY. CONSIDERING THESE FACTS AND CIRCUMSTANCE IN THE CASE OF THE ASSESSEE, AS PER THE PROVISIONS OF THE ACT, THE ASSESSEE WILL BE EXIGIBLE FOR CAPITAL GAIN TAX FOR THE ASSESSMENT YEAR 2015-16 AND NOT ASSESSMENT YEAR 2010-11 AS HELD BY THE LD. REVENUE AUTHORITIES. THEREFORE WE HEREBY DIRECT THE LD.AO TO DELETE THE LONG TERM CAPITAL ASSESSED IN THE HANDS OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR 2010-11. IT IS ORDERED ACCORDINGLY. 6. SINCE WE HAVE ADJUDICATED THE APPEAL OF THE ASSESSEE ON MERITS WE DO NOT FIND IT NECESSARY TO ADDRESS THE GROUND RAISED BY THE ASSESSEE WITH RESPECT TO JURISDICTION BECAUSE IT IS ONLY ACADEMIC IN NATURE. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THE 30 TH JANUARY, 2019 AT CHENNAI. SD/- SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) /ACCOUNTANT MEMBER 13 ITA NO.3168/CHNY /2017 /CHENNAI, /DATED 30 TH JANUARY, 2019 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. /GF