Appeal Details
Counselvise Citation
[2017] 130 COUNSELVISE.COM (IT) 7356 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
3 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-03-2017
Appeal Filed By
Assessee
Bench Allotted
C
Next Hearing Date
22-02-2017
Assessment Year
2007-2008
Appeal Filed On
02-12-2016
Judgement Text
, / , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C/SMC, CHENNAI , ! BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER ./ITA NO.3270/MDS/2016 ' # $%# / ASSESSMENT YEAR : 2007-08 YELLA SIRISHA, REP. BY HER P/H NO. P.VENKATESWARA RAO, 52 & 54, C-1, NORTH BOSE ROAD, T.NAGAR, CHENNAI. [PAN: ABLPY 9551G] ( &' /APPELLANT) VS. INCOME TAX OFFICER, INTERNATIONAL TAXATION-2(2) CHENNAI 600 017. ( ()&' /RESPONDENT) &' * + /APPELLANT BY : SHRI M.ABHISHEK, ADVOCATE ()&' * + /RESPONDENT BY : SHRI N.GOPIKRISHNA, JT. CI T , $ * - /DATE OF HEARING : 22.02.2017 .% * - /DATE OF PRONOUNCEMENT : 30.03.2017 /O R D E R PER SANJAY ARORA, AM : THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-16, CHENNAI ( CIT(A) FOR SHORT) DATED 26.09.2016, DISMISSING THE ASSESSEES APPEAL CONTES TING HER ASSESSMENT U/S. 143(3) R/W. S. 147 OF THE INCOME TAX ACT, 1961 (TH E ACT HEREINAFTER) DATED 27/3/2015 FOR ASSESSMENT YEAR (AY) 2007-08. 2 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO 2. THE ISSUE ARISING IN THIS APPEAL, PROJECTED PER SEVERAL GROUNDS (FROM 2 TO 4 (BEARING SUB-GROUNDS 4.1 TO 4.3), IS THE YEAR OF TR ANSFER OF THE ASSESSEES CAPITAL ASSET, BEING 52 CENTS OF LAND (# 146) AT INJAMBAK KAM VILLAGE, TAMBARAM TALUK, I.E., WHETHER FINANCIAL YEAR (F.Y.) 2005-06, THE PREVIOUS YEAR RELEVANT TO AY 2006-07, AS CONTENDED BY THE ASSESSEE, OR F.Y. 2 006-07 (RELEVANT TO AY 2007-08), AS CONTENDED BY THE REVENUE ON THE BASIS OF THE SALE DEED DATED 10.4.2006, DULY REGISTERED WITH SRO, NEELAMKAMI (AS DOCUMENT NO.2270/2006), ON THE BASIS OF WHICH DOCUMENT IN FA CT THE ASSESSEE WAS ISSUED NOTICE U/S. 148 ON 28.3.2014. THE SECONDARY ISSUE IS THE QUANTUM OF LONG-TERM CAPITAL GAIN (LTCG). THIS IS ON ACCOUNT OF THE SEC. 50C, WHICH COMES INTO EFFECT FROM AY 2003-04 ONWARDS, DEEMING THE STAMP VALUATION AS PRESCRIBED BY THE STAMP VALUATION AUTHORITY (AT . 38,45,520/- IN THE PRESENT CASE) AS THE SALE CONSIDERATION, AS AGAINST THE STATED (DOCUMENT ) CONSIDERATION OF . 25 LACS. 3. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. THE CONTROVERSY ARISING IN THE PRESENT CASE FALLS IN A VERY NARROW COMPASS. THE ASSESSEES CASE IS BASED ON THE SALE AGREEMENT DATED 19.8.2005, AGREEING TO SELL THE LAND UNDER REFERENCE TO ONE, SHRI R. KRISH NAMURTHY, FOR . 25 LACS, COUPLED WITH THE RECEIPT OF THE SALE AMOUNT (VIDE C HEQUE NO.429486 DATED 19.8.2005 DRAWN ON INDIAN OVERSEAS BANK, RANGARAJPU RAM, CHENNAI) AND GRANT OF POSSESSION IN FAVOUR OF THE PROPOSED BUYER. THE REVENUE HAS DECLINED TO RECOGNIZE THE SAME AS TRANSFER FOR WANT OF EVIDENCE WITH REGARD TO THE DELIVERY OF POSSESSION; THE SALE AGREEMENT BEING AN UNREGIST ERED DOCUMENT. FURTHER, THE SALE DEED BEARS REFERENCE TO A POWER OF ATTORNEY (P OA) IN FAVOUR OF SHRI R. KRISHNAMURTHY, DULY REGISTERED ON 12.12.2005, AND W HICH, IT IS CLAIMED, INVALIDATES THE SALE AGREEMENT. WHAT IS OF CONCERN IS WHETHER THE INGREDIENTS OF S. 2(47)(V) OF THE ACT ARE SATISFIED OR NOT? THOUGH STATED TO BE RECEIVED VIDE CHEQUE DATED 19.8.2005, THERE IS NOTHING TO EVIDENCE THE RECEIPT OF THE SAL E CONSIDERATION OF .25 LACS. 3 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO LIKEWISE, FOR THE GRANT OF POSSESSION, THE OTHER PR EREQUISITE FOR CONSTITUTING TRANSFER U/S. 2(47(V). THE REVENUES, WHICH HAS, BE SIDES REGARDING THE SALE AGREEMENT, AN UNREGISTERED DOCUMENT, AS UNRELIABLE, BASED ITS CASE ON WANT OF EVIDENCE BEING LED BY THE ASSESSEE, STAND CANNOT BE SAID TO BE WITHOUT MERIT. HOWEVER, IT STANDS TO REASON THAT THE VENDEE SHALL TAKE POSSESSION OR TAKE STEPS TOWARDS THE SAME ONCE THE ENTIRE SALE CONSIDERATION HAS BEEN PAID. IN FACT, THE GRANT OF POWER OF ATTORNEY ON 12.12.2005 IN FAVOUR OF VENDEE, ALSO FALLING WITHIN THE SAME YEAR, IN MY VIEW, FURTHER SUBSTANTI ATES THE ASSESSEES CASE IN-AS- MUCH AS IT IS A REGISTERED DOCUMENT AND, TWO, ONLY IN PURSUANCE OF THE SALE AGREEMENT DATED 19.8.2005, EVEN AS ONE WONDERS AS T O WHY WAS THE SAME NECESSARY AS THE VENDEE HAD ALREADY SECURED RIGHTS THROUGH THE AGREEMENT, ALSO PAYING THE ENTIRE CONSIDERATION. THE SAME IS NOT ON RECORD. IT IS THEREFORE NOT KNOWN IF IT SPEAKS ABOUT POSSESSION. RATHER, THE VE NDEE, AS THE POWER OF ATTORNEY HOLDER, WOULD BE OBLIGED TO TRANSFER THE L AND TO A THIRD PARTY, AND WHICH PERHAPS EXPLAINS THE REASON FOR EXECUTING THE POA, I.E., APART FROM THE FACT THAT THE AGREEMENT IS UNREGISTERED. THE ASSESSEE IN FACT CONTENDS IT TO BE A FORGED DOCUMENT. IF THAT IS SO, IS IT THE POWER OF ATTORN EY REFERRED TO IN THE SALE DEED? EVEN OTHERWISE, THE BURDEN TO PROOF THAT THE APPARE NT IS NOT REAL IS ON THE PERSON WHO SO ALLEGES. BUT FOR THE ASPECT OF POWER OF ATTO RNEY, WHICH WOULD REQUIRE BEING RESOLVED, IN MY VIEW IT IS A SIMPLE MATTER OF EVIDENCING DELIVERY OF POSSESSION, WHICH WOULD COMPLETE THE TRANSFER U/S. 2(47)(V), BEING OTHERWISE IN AGREEMENT WITH THE CIRCUMSTANCE THAT THE ENTIRE CON SIDERATION, AS STATED, IS ALREADY PAID. IN FACT, IT IS ALSO IN AGREEMENT WITH THE FACT THAT THE SALE HAS BEEN COMPLETED IN DUE COURSE OF TIME ON 10.04.2006 VIDE A REGISTERED DOCUMENT. THE MATTER, ACCORDINGLY, I.E., TO ALLOW THE ASSESS EE AN OPPORTUNITY TO SATISFY, WITH MATERIALS, THAT THE ELEMENTS OF S. 2( 47)(V) ARE SATISFIED FOR THE RELEVANT YEAR, IS RESTORED TO THE FILE OF THE AO. THE ASSESSEE HAS NOT MADE OUT ANY CASE QUA APPLICATION OF S. 50C. THE SAME WOULD THOUGH ARISE FOR 4 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO CONSIDERATION ONLY IN THE EVENT OF S. 45 BEING ATTR ACTED FOR THE CURRENT YEAR. I DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON MARCH 30, 2017 AT CHENNAI . SD/- ( ) (SANJAY ARORA) /ACCOUNTANT MEMBER /CHENNAI, / /DATED, MARCH 30, 2017. EDN 0 * ('-12 32%- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 4- ( )/CIT(A) 4. , 4- /CIT 5. 2$56 ('-' /DR 6. 67# 8 /GF , / , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C/SMC, CHENNAI , ! BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER ./ITA NO.3270/MDS/2016 ' # $%# / ASSESSMENT YEAR : 2007-08 YELLA SIRISHA, REP. BY HER P/H NO. P.VENKATESWARA RAO, 52 & 54, C-1, NORTH BOSE ROAD, T.NAGAR, CHENNAI. [PAN: ABLPY 9551G] ( &' /APPELLANT) VS. INCOME TAX OFFICER, INTERNATIONAL TAXATION-2(2) CHENNAI 600 017. ( ()&' /RESPONDENT) &' * + /APPELLANT BY : SHRI M.ABHISHEK, ADVOCATE ()&' * + /RESPONDENT BY : SHRI N.GOPIKRISHNA, JT. CI T , $ * - /DATE OF HEARING : 22.02.2017 .% * - /DATE OF PRONOUNCEMENT : 30.03.2017 /O R D E R PER SANJAY ARORA, AM : THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-16, CHENNAI ( CIT(A) FOR SHORT) DATED 26.09.2016, DISMISSING THE ASSESSEES APPEAL CONTES TING HER ASSESSMENT U/S. 143(3) R/W. S. 147 OF THE INCOME TAX ACT, 1961 (TH E ACT HEREINAFTER) DATED 27/3/2015 FOR ASSESSMENT YEAR (AY) 2007-08. 2 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO 2. THE ISSUE ARISING IN THIS APPEAL, PROJECTED PER SEVERAL GROUNDS (FROM 2 TO 4 (BEARING SUB-GROUNDS 4.1 TO 4.3), IS THE YEAR OF TR ANSFER OF THE ASSESSEES CAPITAL ASSET, BEING 52 CENTS OF LAND (# 146) AT INJAMBAK KAM VILLAGE, TAMBARAM TALUK, I.E., WHETHER FINANCIAL YEAR (F.Y.) 2005-06, THE PREVIOUS YEAR RELEVANT TO AY 2006-07, AS CONTENDED BY THE ASSESSEE, OR F.Y. 2 006-07 (RELEVANT TO AY 2007-08), AS CONTENDED BY THE REVENUE ON THE BASIS OF THE SALE DEED DATED 10.4.2006, DULY REGISTERED WITH SRO, NEELAMKAMI (AS DOCUMENT NO.2270/2006), ON THE BASIS OF WHICH DOCUMENT IN FA CT THE ASSESSEE WAS ISSUED NOTICE U/S. 148 ON 28.3.2014. THE SECONDARY ISSUE IS THE QUANTUM OF LONG-TERM CAPITAL GAIN (LTCG). THIS IS ON ACCOUNT OF THE SEC. 50C, WHICH COMES INTO EFFECT FROM AY 2003-04 ONWARDS, DEEMING THE STAMP VALUATION AS PRESCRIBED BY THE STAMP VALUATION AUTHORITY (AT . 38,45,520/- IN THE PRESENT CASE) AS THE SALE CONSIDERATION, AS AGAINST THE STATED (DOCUMENT ) CONSIDERATION OF . 25 LACS. 3. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. THE CONTROVERSY ARISING IN THE PRESENT CASE FALLS IN A VERY NARROW COMPASS. THE ASSESSEES CASE IS BASED ON THE SALE AGREEMENT DATED 19.8.2005, AGREEING TO SELL THE LAND UNDER REFERENCE TO ONE, SHRI R. KRISH NAMURTHY, FOR . 25 LACS, COUPLED WITH THE RECEIPT OF THE SALE AMOUNT (VIDE C HEQUE NO.429486 DATED 19.8.2005 DRAWN ON INDIAN OVERSEAS BANK, RANGARAJPU RAM, CHENNAI) AND GRANT OF POSSESSION IN FAVOUR OF THE PROPOSED BUYER. THE REVENUE HAS DECLINED TO RECOGNIZE THE SAME AS TRANSFER FOR WANT OF EVIDENCE WITH REGARD TO THE DELIVERY OF POSSESSION; THE SALE AGREEMENT BEING AN UNREGIST ERED DOCUMENT. FURTHER, THE SALE DEED BEARS REFERENCE TO A POWER OF ATTORNEY (P OA) IN FAVOUR OF SHRI R. KRISHNAMURTHY, DULY REGISTERED ON 12.12.2005, AND W HICH, IT IS CLAIMED, INVALIDATES THE SALE AGREEMENT. WHAT IS OF CONCERN IS WHETHER THE INGREDIENTS OF S. 2(47)(V) OF THE ACT ARE SATISFIED OR NOT? THOUGH STATED TO BE RECEIVED VIDE CHEQUE DATED 19.8.2005, THERE IS NOTHING TO EVIDENCE THE RECEIPT OF THE SAL E CONSIDERATION OF .25 LACS. 3 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO LIKEWISE, FOR THE GRANT OF POSSESSION, THE OTHER PR EREQUISITE FOR CONSTITUTING TRANSFER U/S. 2(47(V). THE REVENUES, WHICH HAS, BE SIDES REGARDING THE SALE AGREEMENT, AN UNREGISTERED DOCUMENT, AS UNRELIABLE, BASED ITS CASE ON WANT OF EVIDENCE BEING LED BY THE ASSESSEE, STAND CANNOT BE SAID TO BE WITHOUT MERIT. HOWEVER, IT STANDS TO REASON THAT THE VENDEE SHALL TAKE POSSESSION OR TAKE STEPS TOWARDS THE SAME ONCE THE ENTIRE SALE CONSIDERATION HAS BEEN PAID. IN FACT, THE GRANT OF POWER OF ATTORNEY ON 12.12.2005 IN FAVOUR OF VENDEE, ALSO FALLING WITHIN THE SAME YEAR, IN MY VIEW, FURTHER SUBSTANTI ATES THE ASSESSEES CASE IN-AS- MUCH AS IT IS A REGISTERED DOCUMENT AND, TWO, ONLY IN PURSUANCE OF THE SALE AGREEMENT DATED 19.8.2005, EVEN AS ONE WONDERS AS T O WHY WAS THE SAME NECESSARY AS THE VENDEE HAD ALREADY SECURED RIGHTS THROUGH THE AGREEMENT, ALSO PAYING THE ENTIRE CONSIDERATION. THE SAME IS NOT ON RECORD. IT IS THEREFORE NOT KNOWN IF IT SPEAKS ABOUT POSSESSION. RATHER, THE VE NDEE, AS THE POWER OF ATTORNEY HOLDER, WOULD BE OBLIGED TO TRANSFER THE L AND TO A THIRD PARTY, AND WHICH PERHAPS EXPLAINS THE REASON FOR EXECUTING THE POA, I.E., APART FROM THE FACT THAT THE AGREEMENT IS UNREGISTERED. THE ASSESSEE IN FACT CONTENDS IT TO BE A FORGED DOCUMENT. IF THAT IS SO, IS IT THE POWER OF ATTORN EY REFERRED TO IN THE SALE DEED? EVEN OTHERWISE, THE BURDEN TO PROOF THAT THE APPARE NT IS NOT REAL IS ON THE PERSON WHO SO ALLEGES. BUT FOR THE ASPECT OF POWER OF ATTO RNEY, WHICH WOULD REQUIRE BEING RESOLVED, IN MY VIEW IT IS A SIMPLE MATTER OF EVIDENCING DELIVERY OF POSSESSION, WHICH WOULD COMPLETE THE TRANSFER U/S. 2(47)(V), BEING OTHERWISE IN AGREEMENT WITH THE CIRCUMSTANCE THAT THE ENTIRE CON SIDERATION, AS STATED, IS ALREADY PAID. IN FACT, IT IS ALSO IN AGREEMENT WITH THE FACT THAT THE SALE HAS BEEN COMPLETED IN DUE COURSE OF TIME ON 10.04.2006 VIDE A REGISTERED DOCUMENT. THE MATTER, ACCORDINGLY, I.E., TO ALLOW THE ASSESS EE AN OPPORTUNITY TO SATISFY, WITH MATERIALS, THAT THE ELEMENTS OF S. 2( 47)(V) ARE SATISFIED FOR THE RELEVANT YEAR, IS RESTORED TO THE FILE OF THE AO. THE ASSESSEE HAS NOT MADE OUT ANY CASE QUA APPLICATION OF S. 50C. THE SAME WOULD THOUGH ARISE FOR 4 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO CONSIDERATION ONLY IN THE EVENT OF S. 45 BEING ATTR ACTED FOR THE CURRENT YEAR. I DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON MARCH 30, 2017 AT CHENNAI . SD/- ( ) (SANJAY ARORA) /ACCOUNTANT MEMBER /CHENNAI, / /DATED, MARCH 30, 2017. EDN 0 * ('-12 32%- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 4- ( )/CIT(A) 4. , 4- /CIT 5. 2$56 ('-' /DR 6. 67# 8 /GF , / , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C/SMC, CHENNAI , ! BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER ./ITA NO.3270/MDS/2016 ' # $%# / ASSESSMENT YEAR : 2007-08 YELLA SIRISHA, REP. BY HER P/H NO. P.VENKATESWARA RAO, 52 & 54, C-1, NORTH BOSE ROAD, T.NAGAR, CHENNAI. [PAN: ABLPY 9551G] ( &' /APPELLANT) VS. INCOME TAX OFFICER, INTERNATIONAL TAXATION-2(2) CHENNAI 600 017. ( ()&' /RESPONDENT) &' * + /APPELLANT BY : SHRI M.ABHISHEK, ADVOCATE ()&' * + /RESPONDENT BY : SHRI N.GOPIKRISHNA, JT. CI T , $ * - /DATE OF HEARING : 22.02.2017 .% * - /DATE OF PRONOUNCEMENT : 30.03.2017 /O R D E R PER SANJAY ARORA, AM : THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-16, CHENNAI ( CIT(A) FOR SHORT) DATED 26.09.2016, DISMISSING THE ASSESSEES APPEAL CONTES TING HER ASSESSMENT U/S. 143(3) R/W. S. 147 OF THE INCOME TAX ACT, 1961 (TH E ACT HEREINAFTER) DATED 27/3/2015 FOR ASSESSMENT YEAR (AY) 2007-08. 2 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO 2. THE ISSUE ARISING IN THIS APPEAL, PROJECTED PER SEVERAL GROUNDS (FROM 2 TO 4 (BEARING SUB-GROUNDS 4.1 TO 4.3), IS THE YEAR OF TR ANSFER OF THE ASSESSEES CAPITAL ASSET, BEING 52 CENTS OF LAND (# 146) AT INJAMBAK KAM VILLAGE, TAMBARAM TALUK, I.E., WHETHER FINANCIAL YEAR (F.Y.) 2005-06, THE PREVIOUS YEAR RELEVANT TO AY 2006-07, AS CONTENDED BY THE ASSESSEE, OR F.Y. 2 006-07 (RELEVANT TO AY 2007-08), AS CONTENDED BY THE REVENUE ON THE BASIS OF THE SALE DEED DATED 10.4.2006, DULY REGISTERED WITH SRO, NEELAMKAMI (AS DOCUMENT NO.2270/2006), ON THE BASIS OF WHICH DOCUMENT IN FA CT THE ASSESSEE WAS ISSUED NOTICE U/S. 148 ON 28.3.2014. THE SECONDARY ISSUE IS THE QUANTUM OF LONG-TERM CAPITAL GAIN (LTCG). THIS IS ON ACCOUNT OF THE SEC. 50C, WHICH COMES INTO EFFECT FROM AY 2003-04 ONWARDS, DEEMING THE STAMP VALUATION AS PRESCRIBED BY THE STAMP VALUATION AUTHORITY (AT . 38,45,520/- IN THE PRESENT CASE) AS THE SALE CONSIDERATION, AS AGAINST THE STATED (DOCUMENT ) CONSIDERATION OF . 25 LACS. 3. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. THE CONTROVERSY ARISING IN THE PRESENT CASE FALLS IN A VERY NARROW COMPASS. THE ASSESSEES CASE IS BASED ON THE SALE AGREEMENT DATED 19.8.2005, AGREEING TO SELL THE LAND UNDER REFERENCE TO ONE, SHRI R. KRISH NAMURTHY, FOR . 25 LACS, COUPLED WITH THE RECEIPT OF THE SALE AMOUNT (VIDE C HEQUE NO.429486 DATED 19.8.2005 DRAWN ON INDIAN OVERSEAS BANK, RANGARAJPU RAM, CHENNAI) AND GRANT OF POSSESSION IN FAVOUR OF THE PROPOSED BUYER. THE REVENUE HAS DECLINED TO RECOGNIZE THE SAME AS TRANSFER FOR WANT OF EVIDENCE WITH REGARD TO THE DELIVERY OF POSSESSION; THE SALE AGREEMENT BEING AN UNREGIST ERED DOCUMENT. FURTHER, THE SALE DEED BEARS REFERENCE TO A POWER OF ATTORNEY (P OA) IN FAVOUR OF SHRI R. KRISHNAMURTHY, DULY REGISTERED ON 12.12.2005, AND W HICH, IT IS CLAIMED, INVALIDATES THE SALE AGREEMENT. WHAT IS OF CONCERN IS WHETHER THE INGREDIENTS OF S. 2(47)(V) OF THE ACT ARE SATISFIED OR NOT? THOUGH STATED TO BE RECEIVED VIDE CHEQUE DATED 19.8.2005, THERE IS NOTHING TO EVIDENCE THE RECEIPT OF THE SAL E CONSIDERATION OF .25 LACS. 3 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO LIKEWISE, FOR THE GRANT OF POSSESSION, THE OTHER PR EREQUISITE FOR CONSTITUTING TRANSFER U/S. 2(47(V). THE REVENUES, WHICH HAS, BE SIDES REGARDING THE SALE AGREEMENT, AN UNREGISTERED DOCUMENT, AS UNRELIABLE, BASED ITS CASE ON WANT OF EVIDENCE BEING LED BY THE ASSESSEE, STAND CANNOT BE SAID TO BE WITHOUT MERIT. HOWEVER, IT STANDS TO REASON THAT THE VENDEE SHALL TAKE POSSESSION OR TAKE STEPS TOWARDS THE SAME ONCE THE ENTIRE SALE CONSIDERATION HAS BEEN PAID. IN FACT, THE GRANT OF POWER OF ATTORNEY ON 12.12.2005 IN FAVOUR OF VENDEE, ALSO FALLING WITHIN THE SAME YEAR, IN MY VIEW, FURTHER SUBSTANTI ATES THE ASSESSEES CASE IN-AS- MUCH AS IT IS A REGISTERED DOCUMENT AND, TWO, ONLY IN PURSUANCE OF THE SALE AGREEMENT DATED 19.8.2005, EVEN AS ONE WONDERS AS T O WHY WAS THE SAME NECESSARY AS THE VENDEE HAD ALREADY SECURED RIGHTS THROUGH THE AGREEMENT, ALSO PAYING THE ENTIRE CONSIDERATION. THE SAME IS NOT ON RECORD. IT IS THEREFORE NOT KNOWN IF IT SPEAKS ABOUT POSSESSION. RATHER, THE VE NDEE, AS THE POWER OF ATTORNEY HOLDER, WOULD BE OBLIGED TO TRANSFER THE L AND TO A THIRD PARTY, AND WHICH PERHAPS EXPLAINS THE REASON FOR EXECUTING THE POA, I.E., APART FROM THE FACT THAT THE AGREEMENT IS UNREGISTERED. THE ASSESSEE IN FACT CONTENDS IT TO BE A FORGED DOCUMENT. IF THAT IS SO, IS IT THE POWER OF ATTORN EY REFERRED TO IN THE SALE DEED? EVEN OTHERWISE, THE BURDEN TO PROOF THAT THE APPARE NT IS NOT REAL IS ON THE PERSON WHO SO ALLEGES. BUT FOR THE ASPECT OF POWER OF ATTO RNEY, WHICH WOULD REQUIRE BEING RESOLVED, IN MY VIEW IT IS A SIMPLE MATTER OF EVIDENCING DELIVERY OF POSSESSION, WHICH WOULD COMPLETE THE TRANSFER U/S. 2(47)(V), BEING OTHERWISE IN AGREEMENT WITH THE CIRCUMSTANCE THAT THE ENTIRE CON SIDERATION, AS STATED, IS ALREADY PAID. IN FACT, IT IS ALSO IN AGREEMENT WITH THE FACT THAT THE SALE HAS BEEN COMPLETED IN DUE COURSE OF TIME ON 10.04.2006 VIDE A REGISTERED DOCUMENT. THE MATTER, ACCORDINGLY, I.E., TO ALLOW THE ASSESS EE AN OPPORTUNITY TO SATISFY, WITH MATERIALS, THAT THE ELEMENTS OF S. 2( 47)(V) ARE SATISFIED FOR THE RELEVANT YEAR, IS RESTORED TO THE FILE OF THE AO. THE ASSESSEE HAS NOT MADE OUT ANY CASE QUA APPLICATION OF S. 50C. THE SAME WOULD THOUGH ARISE FOR 4 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO CONSIDERATION ONLY IN THE EVENT OF S. 45 BEING ATTR ACTED FOR THE CURRENT YEAR. I DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON MARCH 30, 2017 AT CHENNAI . SD/- ( ) (SANJAY ARORA) /ACCOUNTANT MEMBER /CHENNAI, / /DATED, MARCH 30, 2017. EDN 0 * ('-12 32%- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 4- ( )/CIT(A) 4. , 4- /CIT 5. 2$56 ('-' /DR 6. 67# 8 /GF , / , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C/SMC, CHENNAI , ! BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER ./ITA NO.3270/MDS/2016 ' # $%# / ASSESSMENT YEAR : 2007-08 YELLA SIRISHA, REP. BY HER P/H NO. P.VENKATESWARA RAO, 52 & 54, C-1, NORTH BOSE ROAD, T.NAGAR, CHENNAI. [PAN: ABLPY 9551G] ( &' /APPELLANT) VS. INCOME TAX OFFICER, INTERNATIONAL TAXATION-2(2) CHENNAI 600 017. ( ()&' /RESPONDENT) &' * + /APPELLANT BY : SHRI M.ABHISHEK, ADVOCATE ()&' * + /RESPONDENT BY : SHRI N.GOPIKRISHNA, JT. CI T , $ * - /DATE OF HEARING : 22.02.2017 .% * - /DATE OF PRONOUNCEMENT : 30.03.2017 /O R D E R PER SANJAY ARORA, AM : THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-16, CHENNAI ( CIT(A) FOR SHORT) DATED 26.09.2016, DISMISSING THE ASSESSEES APPEAL CONTES TING HER ASSESSMENT U/S. 143(3) R/W. S. 147 OF THE INCOME TAX ACT, 1961 (TH E ACT HEREINAFTER) DATED 27/3/2015 FOR ASSESSMENT YEAR (AY) 2007-08. 2 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO 2. THE ISSUE ARISING IN THIS APPEAL, PROJECTED PER SEVERAL GROUNDS (FROM 2 TO 4 (BEARING SUB-GROUNDS 4.1 TO 4.3), IS THE YEAR OF TR ANSFER OF THE ASSESSEES CAPITAL ASSET, BEING 52 CENTS OF LAND (# 146) AT INJAMBAK KAM VILLAGE, TAMBARAM TALUK, I.E., WHETHER FINANCIAL YEAR (F.Y.) 2005-06, THE PREVIOUS YEAR RELEVANT TO AY 2006-07, AS CONTENDED BY THE ASSESSEE, OR F.Y. 2 006-07 (RELEVANT TO AY 2007-08), AS CONTENDED BY THE REVENUE ON THE BASIS OF THE SALE DEED DATED 10.4.2006, DULY REGISTERED WITH SRO, NEELAMKAMI (AS DOCUMENT NO.2270/2006), ON THE BASIS OF WHICH DOCUMENT IN FA CT THE ASSESSEE WAS ISSUED NOTICE U/S. 148 ON 28.3.2014. THE SECONDARY ISSUE IS THE QUANTUM OF LONG-TERM CAPITAL GAIN (LTCG). THIS IS ON ACCOUNT OF THE SEC. 50C, WHICH COMES INTO EFFECT FROM AY 2003-04 ONWARDS, DEEMING THE STAMP VALUATION AS PRESCRIBED BY THE STAMP VALUATION AUTHORITY (AT . 38,45,520/- IN THE PRESENT CASE) AS THE SALE CONSIDERATION, AS AGAINST THE STATED (DOCUMENT ) CONSIDERATION OF . 25 LACS. 3. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. THE CONTROVERSY ARISING IN THE PRESENT CASE FALLS IN A VERY NARROW COMPASS. THE ASSESSEES CASE IS BASED ON THE SALE AGREEMENT DATED 19.8.2005, AGREEING TO SELL THE LAND UNDER REFERENCE TO ONE, SHRI R. KRISH NAMURTHY, FOR . 25 LACS, COUPLED WITH THE RECEIPT OF THE SALE AMOUNT (VIDE C HEQUE NO.429486 DATED 19.8.2005 DRAWN ON INDIAN OVERSEAS BANK, RANGARAJPU RAM, CHENNAI) AND GRANT OF POSSESSION IN FAVOUR OF THE PROPOSED BUYER. THE REVENUE HAS DECLINED TO RECOGNIZE THE SAME AS TRANSFER FOR WANT OF EVIDENCE WITH REGARD TO THE DELIVERY OF POSSESSION; THE SALE AGREEMENT BEING AN UNREGIST ERED DOCUMENT. FURTHER, THE SALE DEED BEARS REFERENCE TO A POWER OF ATTORNEY (P OA) IN FAVOUR OF SHRI R. KRISHNAMURTHY, DULY REGISTERED ON 12.12.2005, AND W HICH, IT IS CLAIMED, INVALIDATES THE SALE AGREEMENT. WHAT IS OF CONCERN IS WHETHER THE INGREDIENTS OF S. 2(47)(V) OF THE ACT ARE SATISFIED OR NOT? THOUGH STATED TO BE RECEIVED VIDE CHEQUE DATED 19.8.2005, THERE IS NOTHING TO EVIDENCE THE RECEIPT OF THE SAL E CONSIDERATION OF .25 LACS. 3 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO LIKEWISE, FOR THE GRANT OF POSSESSION, THE OTHER PR EREQUISITE FOR CONSTITUTING TRANSFER U/S. 2(47(V). THE REVENUES, WHICH HAS, BE SIDES REGARDING THE SALE AGREEMENT, AN UNREGISTERED DOCUMENT, AS UNRELIABLE, BASED ITS CASE ON WANT OF EVIDENCE BEING LED BY THE ASSESSEE, STAND CANNOT BE SAID TO BE WITHOUT MERIT. HOWEVER, IT STANDS TO REASON THAT THE VENDEE SHALL TAKE POSSESSION OR TAKE STEPS TOWARDS THE SAME ONCE THE ENTIRE SALE CONSIDERATION HAS BEEN PAID. IN FACT, THE GRANT OF POWER OF ATTORNEY ON 12.12.2005 IN FAVOUR OF VENDEE, ALSO FALLING WITHIN THE SAME YEAR, IN MY VIEW, FURTHER SUBSTANTI ATES THE ASSESSEES CASE IN-AS- MUCH AS IT IS A REGISTERED DOCUMENT AND, TWO, ONLY IN PURSUANCE OF THE SALE AGREEMENT DATED 19.8.2005, EVEN AS ONE WONDERS AS T O WHY WAS THE SAME NECESSARY AS THE VENDEE HAD ALREADY SECURED RIGHTS THROUGH THE AGREEMENT, ALSO PAYING THE ENTIRE CONSIDERATION. THE SAME IS NOT ON RECORD. IT IS THEREFORE NOT KNOWN IF IT SPEAKS ABOUT POSSESSION. RATHER, THE VE NDEE, AS THE POWER OF ATTORNEY HOLDER, WOULD BE OBLIGED TO TRANSFER THE L AND TO A THIRD PARTY, AND WHICH PERHAPS EXPLAINS THE REASON FOR EXECUTING THE POA, I.E., APART FROM THE FACT THAT THE AGREEMENT IS UNREGISTERED. THE ASSESSEE IN FACT CONTENDS IT TO BE A FORGED DOCUMENT. IF THAT IS SO, IS IT THE POWER OF ATTORN EY REFERRED TO IN THE SALE DEED? EVEN OTHERWISE, THE BURDEN TO PROOF THAT THE APPARE NT IS NOT REAL IS ON THE PERSON WHO SO ALLEGES. BUT FOR THE ASPECT OF POWER OF ATTO RNEY, WHICH WOULD REQUIRE BEING RESOLVED, IN MY VIEW IT IS A SIMPLE MATTER OF EVIDENCING DELIVERY OF POSSESSION, WHICH WOULD COMPLETE THE TRANSFER U/S. 2(47)(V), BEING OTHERWISE IN AGREEMENT WITH THE CIRCUMSTANCE THAT THE ENTIRE CON SIDERATION, AS STATED, IS ALREADY PAID. IN FACT, IT IS ALSO IN AGREEMENT WITH THE FACT THAT THE SALE HAS BEEN COMPLETED IN DUE COURSE OF TIME ON 10.04.2006 VIDE A REGISTERED DOCUMENT. THE MATTER, ACCORDINGLY, I.E., TO ALLOW THE ASSESS EE AN OPPORTUNITY TO SATISFY, WITH MATERIALS, THAT THE ELEMENTS OF S. 2( 47)(V) ARE SATISFIED FOR THE RELEVANT YEAR, IS RESTORED TO THE FILE OF THE AO. THE ASSESSEE HAS NOT MADE OUT ANY CASE QUA APPLICATION OF S. 50C. THE SAME WOULD THOUGH ARISE FOR 4 ITA NO.3270/MDS/2016 (AY 2007-08) YELLA SIRISHA V. ITO CONSIDERATION ONLY IN THE EVENT OF S. 45 BEING ATTR ACTED FOR THE CURRENT YEAR. I DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON MARCH 30, 2017 AT CHENNAI . SD/- ( ) (SANJAY ARORA) /ACCOUNTANT MEMBER /CHENNAI, / /DATED, MARCH 30, 2017. EDN 0 * ('-12 32%- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 4- ( )/CIT(A) 4. , 4- /CIT 5. 2$56 ('-' /DR 6. 67# 8 /GF
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