ITO, WARD- 2(1), RAIPUR (CG) V. SHRI HARISHANKAR GUPTA, RAIPUR (CG)

ITA 75/BIL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2413 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 08-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHITAL S VERMA
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 143(3); 50C

Judgement Text

1 ITA NO. 75/RPR/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO.75/RPR/2013 ASSESSMENT YEAR : 2009 - 10. THE INCOME - TAX OFFICER, HARISHANKAR GUPTA, WAR D - 2(1), RAIPUR. VS. RAIPUR. PAN ADCPG6513F . APPELLANT. RESPONDENT. APPELLANT BY : SMT. SHITAL S. VERMA. RESPONDENT BY : SHRI PRAVEEN KHANDELWAL DATE OF HEARING : 19 - 02 - 2016 DATE OF PRONOUNCEMENT : 31 ST MARCH, 2016 O R D E R PER MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF LEARNED CIT(APPEALS) , RAIPUR DATED 31 - 05 - 2013. REVENUE HAS RAISED THE FOLLOWING GROUND: WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION ON ACCOUNT OF CAPITAL GAIN AMOUNTING TO RS.47,98,500/ - MADE BY THE AO WHICH WAS NOT OFFERED FOR TAXATION IN THE RETURN OF INCOME. 2. FACT IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S 143(3) DATED 15 - 12 - 2011 WERE THAT THE ASSESSEE IN INDIVIDUAL CAPACITY WAS IN THE BUSINESS OF TRADING OF POOJA ITEMS AND TEMPLE STATU E ETC. A QUERY WAS RAISED BY THE AO THAT THE CA PITAL GAIN ON SALE OF PROPERTY WORTH RS. 61,08,000/ - DURING THE FINANCIAL YEAR 2008 - 09 (ASST. YEAR 2009 - 10) WAS NOT OFFERED FOR THE 2 ITA NO. 75/RPR/2013 ASSESSMENT. THIS QUERY WAS RAISED ON THE BASIS OF AN INFORMATION THAT A REGISTERED SALE DEED WAS EXECUTED ON 23 RD OF JULY, 2 008. THE REPLY OF THE ASSESSEE WAS T HAT THE PROPERTY IN FACT WAS SOLD IN THE FINANCIAL YEAR 1989 - 90 (ASSTT. YEAR 1990 - 01) . IT WAS INFORMED THAT AGREEMENT TO SALE WAS EXECUTED ON 26 - 06 - 1 989. IT WAS ARGUED THAT DURING THE YEAR UNDER CONSIDERATION I.E. IN F INANCIAL YEAR 2008 - 09 ONLY A N ACT OF CONVEYANCE BY EXECUTING A REGISTERED DEED WAS PERFORMED. IT WAS ALSO INFORMED THAT WHEN AN AGREEMENT WAS EXECUTED ON 26 - 06 - 1989 THE BUYER WAS ALREADY IN FULL POSSESSION OF THE PROPERTY. THE EXPLANATION OF THE ASSESSEE W AS THAT THE BUYER WAS ENJOYING THE RIGHT OF USE OF THE PROPERTY . THE ASSESSEE HAS MENTIONED THAT IN A SITUATION WHEN THE BUYER WAS IN POSSESSION OF THE PROPERTY AND THROUGH AN AGREEMENT DATED 26 - 06 - 1989 RIGHTS HAVE ALSO BEEN TRANSFERRED, THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 2(47)(V) THE POSSESSION WAS HANDED OVER IN THAT YEAR. THEREFORE, TRANSFER OF THE PROPERTY TOOK PLACE IN THE FINANCIAL YEAR 1989 - 90. THE ASSESSEE HAS ALSO MENTIONED THE PROVISIONS OF SECTION 53A AND PLEADED THAT IN THE LIGHT OF THE FOLLOWING POINTS THE PROPERTY SHOULD BE CONSIDERED AS TRANSFERRED IN THE FINANCIAL YEAR 1989 - 90, RELEVANT PORTION IS EXTRACTED BELOW : THE MAIN POINTS OF SECTION 53A ARE AS FOLLOWS: I) THERE SHOULD BE A CONTRACT IN WRITING CONTAINING THE TERMS OF THE TRANSFER CAPABLE OF BEING ASCERTAINED WITH REASONABLE CERTAINTY. II) THE CONTRACT SHOULD BE FOR TRANSFER OF AN IMMOVABLE PROPERTY FOR A CONSIDERATION. III) AFTER THE CONTRACT IS ENTERED INTO, THE TRANSFEREE IN PART PERFORMANCE OF THE CONTRACT SHOULD HAVE TAKEN POSS ESSION OF THE PROPERTY. IV) THE TRANSFEREE SHOULD ALSO HAVE DONE SOME ACT IN FURTHERANCE OF THE CONTRACT. V) THE TRANSFEREE SHOULD HAVE EITHER PERFORMED OR INDICATED HIS WILLINGNESS TO PERFORM HIS PART OF THE CONTRACT. VI) IF THE AFORESAID CONDITIONS ARE SATISFIED, T HEN EVEN THOUGH THE ACTUAL DEED OF TRANSFER IS NOT EXECUTED OR REGISTERED, THE TRANSFEROR OR ANY OTHER PERSON CLAIMING THROUGH THE TRANSFEROR ARE DEBARRED FROM CLAIMING ANY RIGHT IN THE SAID PROPERTY. 3 ITA NO. 75/RPR/2013 2.1. HOWEVER, THE AO WAS NOT CONVINCED AND HELD THAT I T WAS EVIDENT FROM THE AGREEMENT TO SALE EXECUTED ON 26 - 06 - 1989 THAT THE POSSESSION HAD NOT BEEN HANDED OVER BECAUSE THERE WAS NO SUCH SPECIFIC MENTION IN RESPECT OF ANY THING OVER OF THE POSSESSION OF THE PROPERTY. ACCORDING TO THE AO RATHER IN THE REGIST ERED SALE DEED DATED 23 - 07 - 2 008 IT WAS MENTIONED THAT BY DELIVERING THE POSSESSION THE BUYER HAD BECOME THE POSSESSOR AND THE OWNER OF THE PROPERTY. ON THIS POINT IT WAS POINTED OUT THAT IN THE SALE DEED DATED 23 - 07 - 2008 IT WAS CATEGORICALLY MENTIONED THAT THE BUYER HAD BECOME THE OWNER OF THE PROPERTY ON 26 - 06 - 1989 WHEN THE AGREEMENT WAS EXECUTED BY VIRTUE OF HANDING OVER OF THE POSSESSION. BUT ACCORDING TO THE AO THE SELLER I.E. THE ASSESSEE WAS HAVING THE RESPONSIBILITY TO PAY THE TAXES AND OTHER DUES PR IOR TO THE EXECUTION OF THE REGISTERED SALE DEED. THE ASSESSEE WAS RESPONSIBLE FOR PAYMENT OF TAXES AND DUES AFTER THE EXECUTION OF THE AGREEMENT TO SALE AND NOT THE VENDEE. ONE MORE OBJECTION HAS BEEN RAISED BY THE AO THAT THE POSSESSION OVER THE PROPER TY WAS NOT ENJOYED BY THE TRANSFEREE BUT BY THE UNCLE OF THE TRANSFEREE. THEREFORE, IN VIEW OF THE AO THE POSSESSION OVER THE PROPERTY WAS NOT VESTED WITH THE ASSESSEE BUT WITH HIS UNCLE. 2.2 THERE WAS AN ADMITTED FACTUAL POSITION THAT THE PROPERTY IN QUES TION WAS SUBJECT TO DISPUTE BEFORE THE COURT VIDE CASE NO. 44 - A/83. THE AOS ANOTHER OBJECTION WAS THAT EVEN I F THE ASSESSEE HAD ACCEPTED THAT THE PROPERTY WAS TRANSFERRED IN THE FINANCIAL YEAR 1989 - 90 THEN THE ASSESSEE SHOULD HAVE DECLARED THE CAPITAL GA IN FOR THE ASSESSMENT YEAR 1990 - 91. 2.3 THE AO HAS ALSO INVOKED THE PROVISIONS OF SECTION 50C OF I.T. ACT AND ASSESSED AT RS.61,08,000/ - , INSTEAD OF THE CONSIDERATION SPECIFIED IN THE SALE DEED. THE CAPITAL GAIN WAS ACCORDINGLY COMPUTED AS UNDER : 4 ITA NO. 75/RPR/2013 AREA OF THE LAND : 5000 SQ.FT. MARKET VALUE OF THE UNIT AREA (IN RS./SQ.FT.) : 45 . 00 MARKET VALUE OF THE LAND IN THE F.YR. 1981 - 82: 45X5000=2,25,000/ - INDEXED COST OF THE LAND IN THE F.YR.2008 - 09 : 13,09,500/ - S ALE VALUE OF CONSIDERATION IN THE F.YR. 2008 - 09: 61,08,500/ - LONG TERM CAPITAL GAIN (IN RS.)FOR THE YR. 2009 - 10: 47,98,500/ - 3. SINCE LONG TERM CAPITAL GAIN OF RS.47,98,500/ - WAS TAXED IN THE HANDS OF THE ASSESSEE, THEREFORE, AN APPE AL WAS PREFERRED BY THE ASSESSEE. 4. BEFORE THE LEARNED CIT(APPEALS) THOSE VERY FACTS HAVE BEEN REITERATED, RELEVANT PORTION IS REPRODUCED BELOW : THE APPELLANT HAS SUBMITTED THAT HE ENTERED IN INTO A WRITTEN AGREEMENT FOR SALE OF HIS PROPERTY LOCATED AT SADAR BAZAR WITH ONE SHRI. SANJAY SHARMA (HEREINAFTER REFERRED TO AS BUYER) RESIDENT OF BHUDHAPARA, RAIPUR ON 26.06.1989; THAT AS PER THIS AGREEMEN T TO SALE THE APPELLANT AGREED TO SELL THIS PROPERTY TO THE BUYER AT A SALE CONSIDERATION OF RS.4,01,101/ - OUT OF WHICH THE BUYER PAID SUM OF RS.55,000/ - THROUGH CHEQUE AT THE TIME OF EXECUTION OF THE AGREEMENT AND FURTHER AGREED TO MAKE THE BALANCE PAYMEN T AT THE TIME OF REGISTRATION OF THE SALE AGREEMENT; THAT THE POSSESSION OF THE PROPERTY AT THE TIME OF EXECUTION OF AGREEMENT TO SALE WAS WITH ONE OF THE RELATIVE OF THE BUYER AND FROM THE DATE OF EXECUTION THE AGREEMENT, PROPERTY WENT INTO THE POSSESSION OF THE BUYER; THAT THIS FACT IS SUBSTANTIATED BY THE AFFIDAVIT OF THE BUYER WHICH CLEARLY STATES THE BUYER IS IN POSSESSION OF THE PROPERTY FROM THE DATE OF EXECUTION OF AGREEMENT TO SALE I.E. 26.06.1989 TO TILL DATE; THAT ON THE REQUEST OF THE APPELLANT , TWO NEIGHBOURS OF THE BUYER HAS ALSO STATED ON AFFIDAVIT THAT THE BUYER IS IN POSSESSION OF THE PROPERTY SINCE MORE THAN 25 YEARS; THAT THERE IS A WRITTEN CONTRACT OF AGREEMENT TO SALE DATED 26.06.1989 WHICH CONTAINS THE TERMS AND CONDITIONS AT PAGE 2; T HAT THE TRANSFER TO PROPERTY IS FOR A CONSIDERATION OF RS.4,01,101/ - THAT OUT OF THIS CONSIDERATION THE APPELLANT HAS RECEIVED SUM OF RS.55,000/ - AS ADVANCE IN PART PERFORMANCE OF THE CONTRACT AND IT CLEARLY SHOWS THE INTENTION OF BUYER OF THIS WILLINGNESS TO PERFORM HIS PART OF THE CONTRACT; THAT THE BALANCE SALE CONSIDERATION WAS RECEIVED BY THE APPELLANT AT THE TIME OF THE REGISTRATION OF THE PROPERTY IN FAVOUR OF THE BUYER; THAT THE TRANSFEREE IS IN POSSESSION OF THE PROPERTY SINCE THE EXECUTION OF AGRE EMENT TO SALE AND THE FACT IS SUFFICIENTLY SUBSTANTIATED AS PER THE AFFIDAVIT OF THE BUYER AND THE AFFIDAVIT OF THE NEIGHBOURS; THAT THE TRANSFEREE APART FROM 5 ITA NO. 75/RPR/2013 TAKING POSSESSION OF THE PROPERTY ALSO PAID PART OF THE AGREED CONSIDERATION IN PART PERFORMANCE OF THE CONTRACT OF AGREEMENT OF SALE; THAT THE PARA 1 AT PAGE 2 OF THE AGREEMENT TO SALE IT IS CLEARLY MENTIONED THAT THE BUYER INTENTS TO MAKE PAYMENT OF THE BALANCE AMOUNT OF SALE CONSIDERATION AT THE TIME OF REGISTRATION OF THE SALE DEED; THAT THE DEFIN ITION OF TRANSFER OF ASSET IS PROVIDED IN SECTION 2(47); THAT WERE IMMOVABLE PROPERTY IS ALLOWED TO BE RETAINED, ENJOYED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882, SUCH AN ACT WILL BE D EEMED TO BE A TRANSFER FOR THE PURPOSE OF SECTION 45 OF THE IT ACT, 1961; THAT SECTION 53A OF THE ACT DEFINES A CONTRACT AS A PART PERFORMANCE CONTRACT WHEN IT COMPLIED WITH FOLLOWING KEY ELEMENTS : (A) THERE MUST BE WRITTEN CONTRACT. (B) UNDER THE SAME A PERSON M UST AGREE TO TRANSFER IMMOVABLE PROPERTY FOR A CONSIDERATION. (C) THE CONTRACT MUST BE SIGNED BY HIM OR IN HIS BEHALF. (D) THE TERMS OF THE CONTRACT MUST BE ASCERTAINABLE WITH REASONABLE CERTAINTY. (E) THE TRANSFEREE HAS TAKEN POSSESSION OF THE PROPERTY OR ANY PART T HEREOF. (F) THE TRANSFEREE IS WILLING TO COMPLETE HIS PART OF THE CONTRACT. THAT THE BUYER HAS STATED ON OATH THAT HE IS IN POSSESSION OF THE PROPERTY SINCE THE EXECUTION OF THE AGREEMENT TO SALE AND THE PROPERTY US UNDER HIS FULL CONTROL AND POSSESSION AND H E IS ENJOYING THE PROPERTY AS PER HIS WILL; THAT THE NEIGHBOURS OF THE PROPERTY HAVE CLEARLY STATED THAT THE BUYER I.E. SANJAY SHARMA IS IN POSSESSION OF THE PROPERTY SINCE MORE THAN 25 YEARS; THAT THE POSSESSION OF THE PROPERTY WAS IN THE HANDS OF THE UNC LE OF THE BUYER TILL THE DATE OF THE AGREEMENT AND NOT THEREAFTER; THAT THE APPELLANT IS NOT IN POSSESSION OF THE RECORDS PERTAINING TO AY 190 - 91; THAT SECTION 53A OF THE TRANSFER OF PROPERTY ACT,1882 DOES NOT REQUIRE PAYMENT OF FULL CONSIDERATION BY THE B UYER TO THE SELLER; THAT WHAT SECTION 53A STIPULATES THAT THE INTENTION OF THE TRANSFEREE (BUYER) SHOULD BE CLEAR AND UNAMBIGUOUS WITH REGARD TO PERFORMANCE OF THE CONTRACT OR WITH REGARD TO WILLINGNESS OF THE PERFORMANCE OF THE CONTRACT; THAT THE ACTION O F PAYMENT OF ADVANCE AND THE CONDITION OF PAYMENT OF BALANCE CONSIDERATION AMOUNT CLEARLY ENUNCIATES THE INTENTION OF THE TRANSFEREE THAT HE IS WILLING TO PERFORM HIS PART OF THE CONTRACT AND AGREED TO MAKE THE BALANCE PAYMENT AS AND WHEN THE REGISTRATION OF THE SALE AGREEMENT IS EXECUTED BY THE SELLER; THAT THE WILLINGNESS OF THE TRANSFEREE IS FURTHER SUBSTANTIATED BY THE FACT THAT THE AT THE TIME OF EXECUTION OF REGISTRATION OF SALE AGREEMENT, THE BUYER MADE THE BALANCE PAYMENT OF THE CONSIDERATION; THE APPELLANT RELIES ON FOLLOWING JUDICIAL PRONOUNCEMENTS : - 6 ITA NO. 75/RPR/2013 (I) DNYANESHWAR N.MULIK VS. ASSISTANT COMMISSIONER OF INCOME TAX, ITAT, PUNE BENCH (2005) 98 TTJ 178 (PUNE); (II) CHATURBHUJ DWARKADAS KAPADIA VS. CIT (2003) 180 CTR 107 (BOM); (III) GRIPWELL INDUSTRIES LIMITED VS. ITO (2006) 102 TTJ 441 (MUM - ITAT); (IV) SMT. D. KASTURI VS. CIT & ANR (2010) 233 CTR 581 (MAD); (V) C.RAVI VS. DCIT (2010) 325 ITR 417 (KER); 4.1 CONSIDERING THE FACTUAL AS WELL AS THE LEGAL ASPECT, LEARNED CIT(APPEALS) HAS HELD THAT APP LYING THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT CITED AS SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER VS. PRALHAD BHAIROBA SURYANVASHI AIR 20 0 2 SC 960 AND ALSO A DECISION OF RAMESH CHAND ARDAWATIYA VS. ANIL PANJWANI AIR 2003 SC 2508, THE TRANSFER TO OK PLACE IN THE FINANCIAL YEAR 1989 - 90. THE PERSON IN POSSESSION MAY NOT HAVE TITLE TO THE PROPERTY, YET IF HE HAS BEEN INDUCTED INTO POSSESSION BY THE RIGHTFUL OWNER AND IS IN PEACEFUL AND SETTLED POSSESSION OF SUCH PROPERTY, HE IS ENTITLED IN LAW TO PR OTECT THE POSSESSION UNTIL DISPOSSESSED BY DUE PROCESS OF LAW. IN ONE OF THE DECISION IT WAS HELD THAT THE FUNDAMENTAL FEATURE TO DETERMINE THE TAXABILITY OF CAPITAL GAIN IS THAT THE GAIN OUGHT TO BE FROM THE TRANSFER OF A CAPITAL ASSET. A TRANSACTION OR T RANSFER SHOULD INVOLVE CONVEYANCE OF BUNDLE OF RIGHTS AS WELL AS THE RIGHT OF POSSESSION OVER THE PROPERTY. THEREFORE, LEARNED CIT(APPEALS) WAS CONVINCED THAT VIDE AN AGREEMENT DATED 26 - 06 - 1989 THE PROPERTY WAS HANDED OVER, RIGHTS WERE TRANSFERRED AND THE CONSIDERATION WAS RECEIVED. DUE TO CERTAIN REASON THE REGISTRATION OF THE DOCUMENT COULD NOT BE COMPLETED. ALTHOUGH THE SAME WAS REGISTERED ON 23 - 07 - 2008 BUT THE TRANSFER OF PROPERTY TOOK PLACE IN ASSESSMENT YEAR 1990 - 91 AND NO CAPITAL GAIN WAS TO BE TAXED FOR ASSESSMENT YEAR 2009 - 10. THE DELETION WAS CHALLENGED. 5. FROM THE SIDE OF THE REVENUE, LEARNED D.R. SMT. SHITAL S. VERMA APPEARED AND SUPPORTED THE ACTION OF THE AO. THE ARGUMENT OF THE LEARNED D.R. 7 ITA NO. 75/RPR/2013 WAS THAT THROUGH THE AGREEMENT NEITHER THE TITLE WA S TRANSFERRED NOR THE POSSESSION WAS HANDED OVER PHYSICALLY TO THE ASSESSEE BUT TO HIS UNCLE. DUE TO THAT REASON IT WAS WRONG TO HOLD THAT THE PROPERTY WAS TRANSFERRED IN THAT FINANCIAL YEAR. THE LEGAL RIGHTS, THE OWNERSHIP, THE TITLE AS WELL AS THE LEGAL POSSESSION WAS HANDED OVER THROUGH A REGISTERED SALE DEED EXECUTED ON 23 - 07 - 2008 RELEVANT FOR ASSESSMENT YEAR 2009 - 10. HE HAS PLEADED TO REVERSE THE FINDINGS OF THE FIRST APPELLATE AUTHORITY. 6. FROM THE SIDE OF THE RESPONDENT - ASSESSEE, LEARNED A.R. MR. PRAVEEN KHANDELWAL APPEARED AND PLACED BEFORE US AS A SHORT COMPILATION CONTAINING WRITTEN SUBMISSIONS BEFORE THE REVENUE AUTHORITIES, A REMAND REPORT SUBMITTED BY THE AO, COPY OF THE AGREEMENT TO SALE DATED 26 - 06 - 1989, COPY OF REGISTERED SALE DEED DATED 25 - 07 - 2008. LEARNED A.R. HAS ALSO PLACED BEFORE US A DECISION OF HONBLE SUPREME COURT PRONOUNCED IN THE CASE OF SANJ EEV LAL VS. CIT 2 69 CTR PAGE 1 (SC). 7. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF THE COMPILATION FILED AND CASE LAWS REPORTED. MOST OF THE FACTS ARE NOT IN DISPUTE THAT AN AGREEMENT WAS EXECU TED ON 26 - 06 - 1989, PHOTOCOPY ON RECORD, ACCORDING TO WHICH SHRI MANIKLAL GUPTA AGED ABOUT 70 YEARS HAVE AGREED TO SALE HALF PORTION OF A HOUSE FOR A CONSIDERATION OF RS.4,01,101/ - WHICH WAS IN LITIGATION AS PER CASE NO. 44 - A/83 ALLEGEDLY UNDER POSSESSION O F THE OTHER LITIGANTS. AN ADVANCE OF R.55,000/ - WAS STATED TO HAVE BEEN RECEIVED WITH A PROMISE TO EXECUTE A REGISTERED SALE DEED. LATER ON A REGISTERED SALE DEED WAS EXECUTED ON 23 - 03 - 2008 WHEREIN THE AGE OF SHRI MANIKLAL GUPTA WAS MENTIONED AS 90 YEARS A ND THE NAME OF THE BUYER WAS MENTIONED AS SHRI SANJAY SHARMA AGED 45 YEARS, SON OF SHRI KAILASHCHAND SHARMA. THE HOUSE IN QUESTION WAS D ESCRIBED AS 60 YEARS OLD CONSTRUCTION. THE COMPLETE PROPERTY WAS INHERITED BY SHRI MANIKLAL GUPTA AND SHRI BALDEV PRAS AD GUPTA, BROTHERS. IN THE SALE DEED THERE WAS A DUE DESCRIPTION 8 ITA NO. 75/RPR/2013 OF THE AGREEMENT EXECUTED ON 26 - 06 - 1989, THAT IN COMPLIANCE OF THE SAID AGREEMENT THE REGISTERED SALE DEED WAS BEING EXECUTED. THERE IS NO SPECIFIC MENTION THAT ON THE DATE OF EXECUTION OF T HE REGISTERED SALE DEED A POSSESSION HAD BEEN HANDED OVER. RATHER THE AFFIDAVITS ON RECORD SUCH AS AN AFFIDAVIT OF SHRI SANJAY KUMAR SHARMA, WHEREIN HE HAS AFFIRMED ON OATH THAT HE WAS IN POSSESSION OF THE PROPERTY SINCE 26 - 06 - 1989 AND ONLY A REGISTERED SA LE DEED WAS EXECUTED ON 25 - 07 - 2008. CERTAIN OTHER EVIDENCES HAVE ALSO DEPICTED THAT THERE WAS A LITIGATION AND THE PROPERTY WAS IN POSSESSION OF THE LITIGANTS, HENCE THE ASSESSEE HAD DECIDED TO SALE THE PROPERTY TO THAT LITIGANT WHO WAS NOT READY TO VACATE T HE PROPERTY. IT HAS ALSO BEEN EXPLAINED THAT SINCE THE LITIGATION WAS GOING ON FOR MORE THAN 25 YEARS, THEREFORE, IT WAS DECIDED TO SALE THE PROPERTY ALTHOUGH AT A LOWER PRICE THAN THE MARKET PRICE. CONSIDERING THESE FACTS WE ARE OF THE CONSIDERED OPINIO N THAT BY VIRTUE OF AN AGREEMENT DATED 26 - 06 - 1989 THE VENDOR I.E. THE ASSESSEE HAD CREATED A RIGHT IN PERSONAM IN FAVOUR OF THE VENDEE. AFTER CREATION OF THE SAID RIGHT THE VENDOR WAS RESTRAINED FROM SELLING THE PROPERTY. APART FROM THE ABOVE TRANSFER OF R IGHT, THE UNDISPUTED FACT WAS THAT THE VENDEE WAS ALREADY IN POSSESSION OVER THE PROPERTY AND THAT THE PROPERTY IN QUESTION WAS UNDER LITIGATION. BECAUSE OF THE PECULIARITY OF THE FACTS WE ARE OF THE OPINION THAT THE DECISION CITED BY THE HONBLE SUPREME C OURT IN THE CASE OF SANJ EEV L AL 269 CTR PAGE 1 (SC) ORDER DATED 1 ST JULY, 2014 IS APPLICABLE TO DECIDE THE MATTER IN FAVOUR OF THE ASSESSEE. THERE ARE FEW OTHER CASE LAWS OF SEVERAL HIGH COURTS WHEREIN THE LAW PRONOUNCED WAS THAT AS PER THE TRANSACTION WIT HIN THE MEANING OF THE PROVISIONS OF SECTION 53A AS A PART OF PERFORMANCE CONSIDERATION WAS RECEIVED AND POSSESSION WAS HANDED OVER THEN TRANSFER TOOK PLACE WITHIN THE MEANING OF SECTION 2(47)(V) OF I.T. ACT. REFERENCE IS C. RAVI VS. DCIT 325 ITR 417 ( K ER .). AS A RESULT, WE HEREBY CONFIRM THE FACTUAL AS WELL AS LEGAL FINDINGS OF LEARNED CIT(APPEALS) AND DISMISS THIS GROUND OF THE REVENUE. 9 ITA NO. 75/RPR/2013 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF MARCH,2016. SD/ - SD/ - ( SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER. JUDICIAL MEMBER DATED: 31 ST MARCH, 2016. COPY FORWARDED TO : 1. S HRI HARISHANKAR GUPTA, L/H OF LATE SHRI MANIKLAL GUPTA, NEAR JAGANATH MANDIR, SADAR BAZAR RAIPUR. 2. I.T.O., WARD - 2(1), RAIPUR. 3. C.I.T. , RAIPUR. 4. CIT(APPEALS), RAIPUR. 5. D.R., ITAT, RAIPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE .