Shiw Ratan Rampuria, Siliguri V. I.T.O.,Ward-2(3), Siliguri

ITA 760/KOL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1535 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 11-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Fair market value; Set aside; Capital Gains
• Section: 131; 54; 50C; 250; 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH KOLKATA Before Shri Sanjay Garg, Judicial Member and Shri Rajesh Kumar, Accountant Member I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria..................................................................Appellant Shakti Kunj, Agrasen Road, Khalpara, Siliguri-734005. [PAN: ACCPA9333J] vs. ITO, Ward-2(3), Siliguri................................................................Respondent Appearances by: Shri S. M. Surana, Advocate, appeared on behalf of the appellant. Smt. Ranu Biswas, Addl. CIT-DR,appeared on behalf of the Respondent. Date of concluding the hearing : February 23, 2022 Date of pronouncing the order : May 23, 2022 ORDER Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 27.02.2019 of the Commissioner of Income Tax (Appeals), Siliguri [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The brief facts of the case are that the assessee is an individual who furnished his return of income for the assessment year 2014-15 on 31.03.2015 declaring a total income of Rs.2,29,360/-. The return was selected for limited scrutiny assessment under CASS for the reason, “sale consideration of property in ITR is less than sale consideration of property reported in AIR”. The Assessing Officer asked the assessee to produce the details of sale of property along with supporting documents; in response to which, the assessee submitted the copy of the purchase deed of the said property, from which it transpired that the assessee had on 11.09.2002 had purchased from one, Shri Sujit Kumar Bindal, a piece of land measuring 5 kathas/0.8 decimel. I was further transpired that on 11.09.2002, the assessee’s wife namely Smt. Manju Devi Rampuria also purchased a piece of land measuring 5 kathas/0.8 decimal from the said Sujit Kumar Bindal which I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 2 was from part of the same piece of land. These lands were sold by the assessee and his wife jointly to Priyanka Promoters and Developers vide three separate sale deeds, the details of which are as under: Area of land Purchaser Sale consideration Market value 2 Kathas Priyanka Promoters and Developers 4,00,000/- 33,00,000/- 4 Kathas Priyanka Promoters and Developers 8,00,000/- 52,80,000/- 4 Kathas Priyanka Promoters and Developers 8,00,000/- 52,80,000/- Total 20,00,000/- 1,38,60,000/- The Assessing Officer noted that in the Income-Tax Return filed manually with the Department, the assessee had not shown any capital gains from the sale of above land. The Assessing Officer asked the assessee to explain in this respect. The assessee furnished a written reply in this respect, the contents of which are reproduced as under: “That by registered deed on conveyance of 11 th Sept. 2002, I purchased the property being clause No.25(269P) in old Khatian No.1173, R.S. Khatian No.519 in Old Sheet No. 7 and Hal Sheet No.8, Comprised in Plot No. 259 and Plot No. 260 under Ward No.41, P.S. Bhuktinagar, Dist. Jalpaiguri, having an area of 5 Kathas, from one Sujit Kumar Bindal of Banarhat, Jalpaiguri. My intention was to hold the property as I made a long term investment, sometimes in December, 2012. I found that some construction have been taken up by one Yaspal Bindal, brother of Sujit Kumnar Bindal. When I tried to prevent him for doing the construction on the basis of the sale deed executed by his brother in my favour I was astonished to hear from him that his brother never sold the property to me nor executed any sale deed in my favour, when I produced my sale deed before him, to my surprise I was told that the signature on the sale deed were not of his brother. On the other hand he showed me the copy of the Gift deed of the same very land executed by him in his favour by which he gifted the said land to his brother Yashpal Bindal by duly executed Gift Deed dated 30 September, 2011. Ongoing through the papers and making enquiry from the office of Registrar of Assurances I was really shocked to learn that by executing conveyance deed in my favour in 2002, I have really been cheated. I was now desperate to get rid of the entire episode and transaction and realize my money somehow. I am a middle class advocate, somehow trying to meet my family needs. It was a great loss to me. However, somehow I got hold of Priyanka Promoters and Developers to whom I narrated the entire story. The said purchaser agreed to purchase the property "as is where is "basis but offered only Rs. 10 lakhs. Sinee, I was getting my investment back and desperate to come out of the deal, I readily agreed for the transaction and executed the deed in his favour. Considering the entire episode referred above and keeping in mind the vital fact that the purchase deed executed in my favour may or may not be genuine, the consideration received was quite fair reasonable. In fact that if the purchase deed executed in my favour was not genuine, then in fact there was no transfer of any immovable property by me so as to apply the provisions of sec. 50C. I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 3 In view of the above I firstly request you to kind issue notice u/s 131 Sri Sujit Kr. Bindal and examine him in my presence to find out the genuineness of the deed executed by him in my favour on 11 th Sept 2002.” Considering the above plea of the assessee, the Assessing Officer issued notice u/s 131 of the Act to the seller Shri Sujit Kr. Bindal who appeared before the Assessing Officer and submitted the documents from which it revealed that the said Sujit Kr. Bindal has filed a title suit with Civil Court against partners of M/s Priyanka Promoters and Developers, to whom the assessee had sold the aforesaid property. 3. The Assessing Officer observed that the assessee and his wife jointly sold the aforesaid land for an aggregate consideration of Rs.20,00,000/- ,whereas, the market value of the land, as determined by Stamp Valuation Authority, was at Rs.1,38,60,000/-. He further noted that even the assessee had not disclosed the aforesaid sale transaction of land in the return of income. The Assessing Officer, therefore, noted that it was clear that the assessee had concealed the transaction of sale of land by not having disclosed the same in the column meant for long-term capital gain (LTCG) in the return of income. The Assessing Officer applied the provisions of section 50C of the Act, which states that if the value assessed by the Stamp Valuation Authority is not more than the amount declared by the seller in the conveyance deed that the value so adopted by the Stamp Valuation Authority will be deemed as full value of consideration. Since the Stamp Valuation Authority had assessed the value of property at Rs.1,38,60,000/-, the assessee’s share being 50%, the Assessing Officer calculated the sale price of the land sold by the assessee at Rs.69,30,000/- and computed the capital gains accordingly. The Assessing Officer further noted that the date of transfer was 01.04.2013 and not 31.03.2013 as because on 31.03.2013, these sale deeds were only admitted for execution by the Registering Authority but actually executed on 01.04.2013. The Assessing Officer placed reliance on the decision of the Hon’ble Supreme Court in the case of Suraj Lamps & Industries (P) Ltd. vs. State of Haryana[(2011) 14 taxmann.com 103(SC)] wherein the Hon’ble Supreme Court has held that immovable property can be legally and lawfully transferred only by a registered deed of conveyance. I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 4 4. Being aggrieved by the aforesaid action of the Assessing Officer, the assessee preferred an appeal before the ld. CIT(A), however, the ld. CIT(A) dismissed the appeal of the assessee, observing as under: “The only effective ground of appeal is against the addition made by the Ld. A.O invoking the provisions of Section 50C and determining Long Term Capital Gain of Rs. 68,24,967/- which was not disclosed by the appellant. The Ld. A.O has determined the above long term capital gain by critically analyzing, based on the date of transfer of the property. On perusal of the statement of facts, it is seen that the appellant did not substantiate any submissions/documents in respect of the grounds of appeal filed. Accordingly the addition made by the Ld. AO in respect of Long term capital gains of Rs.68,24,967/- is hereby confirmed.” 5. Being aggrieved by the above order of the ld. CIT(A), the assessee has come in appeal before us with the following grounds of appeal: “1. For that the Ld CIT(A) erred in confirming the order of the A.O when the facts of the case that the assessee had no legal and valid title over the land which was the subject matter of the conveyance deed and executed by him and the provisions of section 50C were not applicable. 2 For that the Ld. CIT(A) erred in confirming the action of the A.O in applying the provisions of sec. 50C when there was no transfer of any immoveable property by the assessee. 3. For that on the facts and circumstances of the case, the addition made by the A.O under the head long term capital gain was unjustified and not in accordance with law.” 6. Apart from the aforesaid grounds of appeal, the assessee vide letter dated 05.10.2019 has taken the following additional grounds of appeal: “4. For the Ld. CIT(A) erred in confirming the addition made by the A.O u/s 50C when the deed was not executed during the year and it is the date of execution of the deed which is the date of transfer even if there was transfer.” 7. We have heard the rival contentions and gone through the records. 8. The ld. counsel for the assessee, Shri S. M. Surana, Advocate, the Ld. Counsel for the assessee, at the outset has invited our attention to page 28 of the paper-book, which is the copy of the endorsement of the registration of sale deed by the Sub-Registrar, the contents of which are reproduced as under: I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 5 Referring to the aforesaid endorsement, Mr. registered on 01.04.2013, but the same was presented for registration on 31.03.2013 to the Sub-Registrar. He referred to Act 1908, which, for the sake of ready reference “Section 47 and 75 of The Reg 47. Time from which registered document operates. operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration 75. Order by Registrar to register and procedure thereon. (1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the Assessment Year: 2014 Referring to the aforesaid endorsement, Mr. Surana, submitted that though but the same was presented for registration on 31.03.2013 to Registrar. He referred to the provisions of section 47 and 75 of the Registration for the sake of ready reference, are reproduced as under: “Section 47 and 75 of The Registration Act, 1908 Time from which registered document operates.—A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration . Order by Registrar to register and procedure thereon.— If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered. I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 6 though, the deed was but the same was presented for registration on 31.03.2013 to section 47 and 75 of the Registration reproduced as under: A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. If the Registrar finds that the document has been executed and that the said document to be registered. I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 7 (2) If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60. (3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration. (4) The Registrar may, for the purpose of any enquiry under section 74, summon and enforce the attendance of witness, and compel them to give evidence, as if he were a Civil Court and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908 (5 of 1908).” Referring to the section 47 of the Registration Act 1908, Mr. Surana has submitted that though, all the three sale deeds vide which the assessee transferred the property in question were not registered till the end of the financial year 2012-13 relevant to assessment year 2013-14, however, these deeds were presented for registration to the Sub-Registrar on 31.03.2013 i.e. in the financial year 2012-13 relevant to the assessment year 2013-14 itself. He has further submitted that though these deeds were registered on 1.4.2013 i.e. in the next financial year 2013-14 relevant to the assessment year 2014-15, however, as per the provisions of section 75 of the Registration Act 1908, Act, these registered deeds would operate from the date of presentation of the same to the Sub – Registrar and not from the time of its registration. He has submitted that since the deeds fully executed were presented on 31.03.2013, therefore, in view of section 75 of the Indian Registration Act, these would be deemed to operate from 31.03.2013 i.e. in the financial year 2012-13 relevant to assessment year 2013-14. He, therefore, submitted that the Assessing Officer was not justified in making the impugned addition in the assessment year 2014-15 while invoking the provisions of section 50C of the Income Tax Act. He has submitted that each assessment year is a separate assessment year and the additions, if any, could have been made by the Assessing Officer in assessment year 2013-14, itself, and not in the assessment year 2014-15. He, therefore, has submitted that the additions made by the Assessing Officer by invoking section 50C of the Income Tax Act, in the relevant assessment year 2014-15 were not legally sustainable. He, in this respect, has also relied upon the following case laws: I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 8 (i) Commissioner of Income Tax vs. Ghaziabad Engineering Co. (P.) 249 ITR 244 (Delhi) (ii) Thakur Kishan Singh vs. Arvind Kumar 1995 AIR 73 (iii) Gurbax Singh vskartar Singh SLP(C) 1969of 2002 vide order dated 11.02.2002 ( iv) ACIT vs Nagesh C Kawale ITAT ( Pune) dated 11.02.2000 (V) Hamda Ammal Avadiappa Pathar & others 1990 SCR Suppl. (2) 594 Mr. Surana, the ld. counsel for the assessee, has further submitted that since the title of the assessee to the aforesaid property was defective as the seller of the property namely Mr. Sujit Kr. Bindal had denied the execution of sale deed in favour of the assessee and his wife and therefore, the assessee was not the owner of the property in question. He has submitted that since the assessee was not the owner in question of the property, therefore, there was no transfer of property in the eyes of law and, therefore, section 50C would not apply in this case. He in this respect has relied upon the following case law: (i) Hira Lal Ram Dayal vs .Commissioner Of Income-Tax [122 ITR 461 (P&H)] (ii) Badri Prasad vs. Babu Lal& others AIR 2003All 206 Shri Surana, has further relied upon the decision of the Jharkhand High Court in the case of Shakuntala Devi vs. State CWP No 2563 of 2003 vide order dated 10.08.2009 to submit that merely because the sale deed was registered that does not been that the title of the assessee was perfect. That the registering authority was bound to register the document when it was presented and it was not required of him to make enquiry about the title of the property. 9. On the other hand, the ld. DR, Ms. Ranu Biswas, Additional CIT has submitted that the Assessing Officer has rightly taken the date of transfer of the property by the assessee as on 01.04.2013. she has submitted that as per the section 17 of the Registration Act 1908, any document of transfer of immovable property of the value of Rs.100/- and above is required to be compulsorily registered, and if such document is not registered then as per the provisions of section 49 of the Registration Act, any document which is required to be registered as per section 17 of the Registration Act if not registered, will not affect any immovable property comprised therein and it will not be received as I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 9 evidence of any transaction affecting such property except any and sue for specific performance or as evidence of any collateral transaction. She, therefore, has submitted that since till 31.03.2013, all the three transfer deeds of the property, in question, were not registered, therefore these deeds did not affect any transfer of property as per section 49 of the Registration Act. She, therefore, has submitted that there was no transfer of the property in question in the eyes of law till 31.03.2013. She has further submitted that the transfer of the property was affected on 01.04.2013 when the deed was registered, therefore, the Assessing Officer has rightly invoked the provisions of section 50C for the assessment year under considering i.e. A.Y 2014-15. She has further submitted that there was no force in the contention of the ld. counsel for the assessee that the assessee did not have any saleable right in the property in question. She, in this respect, has submitted that the assessee had not mentioned that how a property which was already transferred by way of registered deed nine years prior, can be transferred again through a gift by the seller namely Mr.Sujit Kr. Bindal. She has further submitted that the assessee has not produced any evidence of carrying out any prosecution or complaint, litigation etc. by the assessee against ShriSujit Kr. Bindal relating to the aforesaid charge of fraud by the assessee against him. She has further submitted that no reliable material was furnished by the assessee to prove the above contention except that Shri Sujit Kr. Bindal appeared before the Assessing Officer and furnished to him the copy of the complaint against Priyanka Promoters and Developers i.e. the party to whom the assessee has sold the land in question. She has invited our attention to the impugned order of the ld. CIT(A) to submit that even no evidence or reliable material was submitted by the assessee before the ld. CIT(A) in this respect and therefore, the ld. CIT(A) has rightly dismissed the appeal of the assessee. She has further submitted that even the assessee did not take any such ground before the CIT(A) relating to the operation of the sale deed from the date of execution and thereby that the income in this respect can be assessed only in the assessment year 2013-14 and not assessment year 2014-15. That even the assessee did not disclose about the aforesaid I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 10 sale transactions of the property in the return of income for A.Y. 2013-14. She has, therefore, submitted that the assessee was now estopped to take this additional ground at this stage. She has further submitted that reliance of the ld. counsel for the assessee on the provisions to section 75 of the Registration Act was misplaced. She, in this respect has submitted that part XII of the Registration Act 1908 containing sections 71 to 77 deals with the cases in which the Registrar may refuse to register a document and the procedure thereof. She has further submitted that date of presentation and certification of deed are separate processes and cannot be taken to be one and same; that the date of presenting of deed of conveyance of the Registrar cannot substitute with the date of registration. She has submitted that since, the date of registration in this case was 01.04.2013 relevant to assessment year 2014-15, therefore, the decision of the Hon’ble Supreme court in the case of “Suraj Lamps and Industries Vs. State of Haryana” (supra) was applicable and the Assessing Officer rightly invoked the provisions of section 50C of the Income Tax Act for the assessment year under consideration. She has, in this respect, has relied upon the following case laws: “1. Supreme Court in the case of Suraj Lamps and Industries Vs. State of Haryana (2011, 14 Taxman.com 103 SC) dated 14.10.2011 2. High Court of Allahabad, i/c of SmtShobha Jain Vs CIT Agra, (2016: 75 taxmann.com 223) dt. 08.09.2016 3. High Court of Punjab and Haryana i/c of SmtShailMotivs CIT Chandigarh (2013, 35 taxmann.com 46) dt. 29.01.2013 4. 1TAT Pune i/c SmtJayshree Shankar Done ( 2020, 122 taxmann.com 120 ).dt 19.12.2020” 10. We have considered the rival contentions and gone through the record. We are of the opinion that in this case, the appellant-assessee is not entitled to the discretion of this Court for admission of the additional ground. The assessee, in this respect, has not come to the Court with clean-hands. It has been held time and again by the various courts of the country that one cannot be allowed to take advantage of one’s own wrong. I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 11 The case of the assessee is that the conveyance deed was presented to the Sub-Registrar on 31 st March 2013. However, the deed was registered on 1 st April 2013. The counsel for the assessee relying upon the provisions of section 47 and section 75 of the Registration Act 1908 has contended that though the deed was registered on 1 st April 2014 i.e. in the previous year relevant to assessment year 2014-15, however, it would relate back to the date of execution/presentation of the same to the Sub-Registrar for registration. He, therefore, has contended that the Assessing Officer could have invoked the provisions of section 50C in respect of fair market value of the property for assessing/computing the capital gains in an assessment carried for assessment year 2013-14 and not assessment year 2014-15. However, it is pertinent to note here that all the three the sale deeds were presented at the private residence of the Sub-Registrar on 31 st March 2013 as mentioned in the above reproduced endorsement itself. Further, another important point to note is that 31.03.2013 was a Sunday i.e. a closed day. It has not been explained as to what were the emergent/urgent circumstances which compelled the parties to the deed to present the sale deed for registration on a Sunday at the private residence of the Sub- Registrar. It seems to be a manipulation of events for the purpose of evading the tax. It is apparent that the said sale deed were presented on a Sunday at the private residence of the Sub- Registrar in the evening of 31.03.2013, fully knowing that the registration of the said sale deeds would only be done on 01.04.2013 and thereby the plan was designed so that the execution of the sale deeds should be claimed to be done in earlier financial year and registration date mentioned would be of the next financial year so as to misguide the Income Tax Authorities as the sale deed would come in the public domain on its actual registration on.1.4.2013 i.e. in the financial year 2013-14 relevant to assessment year 2014-15. It is further to be noted that the assessee bifurcated the transfer of the chunk of land held by him along with his wife into three parts and presented three separate sale deeds for registration on the same day. It has not been explained as to why three separate sale deeds by the same sellers to the same purchasers were made by dividing the same chunk of land into three parts and thereby making three sale deeds which was allegedly I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 12 presented for registration on the same date i.e. 31.03.2013 and got registered on 01.04.2014. The facts on the file, itself, show that the assessee deliberately divided the amount of sale consideration into three parts by way of three sale deeds so as to not to invite the attention of the Revenue authorities of receipt of a higher sale price and an attempt has been made to transfer the same chunk of property by way of three separate sale deeds dividing the consideration into three smaller parts with the motive that the same should not be taken note of by the Income Tax Authorities. Further, another fact on the file showing that the assessee’s intention was not bona fide is that the assessee neither disclosed the aforesaid transfer of capital asset in the Income Tax Return for assessment year 2013-14 nor in the Income Tax Return for assessment year 2014-15. The assessee concealed this fact of transfer of property from the Income Tax Authorities deliberately fully knowing that the factum of execution of the deed in financial year 2012-13 relevant to assessment year 2013-14 would not come into the knowledge of the Assessing Officer, as the execution of the said deed would not come into the public domain till the completion of financial year 2012-13 relevant to assessment year 2013-14. The assessee was aware that the information will be passed by the Land Revenue Authorities/ Sub Registrar to the Income Tax authorities regarding the aforesaid sale deeds showing the registration date as 1.4.2013 and in that event the Income Tax authorities would invoke the provisions of section 50C in the assessment year 2014-15 which the assessee would dispute as noted above. The assessee fully aware of this fact, devised a tax evasion scheme in the manner that once this question arises, the assessee can safely contest that the deed will relate back to the earlier financial year citing provision of section 47 and section 75 of the Income Tax Act. The events were so managed that the sale deeds in question were presented for registration in the evening of the last day of the financial year 2012-13 i.e. on 31.03.2013 which incidentally happened to be a Sunday i.e. closed day, but the assessee went ahead to present the said deeds at the private residence of the Sub Registrar on that day itself. Had the assessee been bona fide in his claim, he would have shown the execution of the conveyance in his return of income for the assessment year 2013-14. Since there was nothing in public domain relating to the execution of the sale deed in financial year 2012- I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 13 13 relevant to assessment year 2013-14, the Assessing Officer was not supposed to invoke the provision of section 50C in assessment year 2013-14. Even for assessment year 2014-15, the assessee did not raise this additional ground before the ld. CIT(A) and allowed the time to pass which was available to the Assessing Officer for reopening of the assessment for assessment year 2013-14. Now the assessee before this Tribunal has come with this additional ground that the Assessing Officer could have invoked the provision of section 50C for assessment year 2013-14 only not for AY 2014-15. It is apparent that the Assessee designed the evasion in such a manner that though the registration will be done in the subsequent year but the assessee will take the plea that the Assessing Officer cannot tax the same on the ground that the said transfer would relate back to the earlier assessment year. It is a case where the facts are apparent that the assessee has devised tax evasion scheme which cannot be appreciated. The Jurisdictional Calcutta High Court, in somewhat similar circumstances in the case of Bagri Impex (P.) Ltd. Vs Assistant Commissioner of Income Tax [2013] 31 taxmann.com 39 has held that the assessee cannot be allowed to adopt devices to defeat the provisions. That designs to evade tax cannot be permitted. The relevant part of the judgement (supra) is reproduced as under: “7. We have not been impressed by this submission. It is true that 'Transfer' has been defined in Section 2(47) quoted above. But the aforesaid definition was made before Section 50C was introduced to the Income Tax Act. After section 50C was introduced in the year 2003, the value of the land or building or both sold or otherwise transferred has to be the value assessed by the authority of the State Government for the purpose of stamp valuation. The submission that in the financial year 2005-06 when the consideration was received, the Deed of Conveyance had not even been executed has not found favour with us for the simple reason that the intention of the Parliament is that in a case where the land or building or both are sold or otherwise transferred, such transfer shall be deemed to have taken place only after the stamp duty has been assessed by the State Government, because it is on the valuation made for the purpose of stamp duty that the tax is payable under the Income Tax Act. The amendment made in the year 2009 may have made the things simpler, but the intention of the legislature was very clear from the beginning that the value for the purpose of income tax shall be the same as the value for stamp duty. By adopting devices to defeat the provision, the assessee cannot be heard to contend that section 50C would not be applicable merely because the Deed of Conveyance had not at that time been executed or registered. The contention that the property stood transferred in the financial year 2005-06 when the sale proceeds were received on the basis of the definition appearing from s.2(47)(v) of the I.T. Act is without any substance for reasons already discussed. The assessee itself did not follow s.2(47)(v) I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 14 of the I.T. Act because it did not offer the transfer for taxation in the year 1996 when the possession is claimed to have been made over on the basis of the agreements for sale in accordance with s.2(47)(v) quoted above. Designs to evade tax cannot be permitted. The Assessing Officer on the date of assessment for the assessment year 2006-2007 had before him the valuation made by the State for the purpose of stamp duty and rightly applied the same.” The above proposition of law laid down by the jurisdictional Calcutta High Court is squarely applicable to the facts of the present case. Therefore, we are not inclined to admit the additional ground taken by the assessee. 11. Even otherwise, we do not find any force in the contentions raised by the Ld. Counsel for the assessee that by virtue of the applicability of the provisions of section 47 and section 75 of the Registration Act, the transfer would relate back to a date prior to the registration for the purpose of applicability section 50C of the Income Tax Act. Admittedly, the conveyance was not complete till it was registered on 1 st April 2014. Merely because of the provisions to sections 47 or 75 of the Registration that after registration the sale deed will relate back to the date of execution/presentation, does not mean that the sale deed in any manner was complete till its registration on 01.04.2013, therefore, the Assessing Officer did not have any occasion to invoke section 50C in the assessment year 2013-14. A question pertaining to the scope of provisions of section 47 of the Registration Act came up for consideration before the Hon’ble Supreme Court in the case of “Ram Saran Lall v. Mst. Domini Kuer, AIR 1961 SC 1747” wherein, the Hon’ble Supreme court held that the object of section 47 of the registration Act is to decide which of the two or more registered documents in respect of the same property is to have effect. It has nothing to do with the completion of the registration. The relevant part of the order of the Hon’ble Supreme Court is reproduced as under: “Section 47 of the Registration Act does not, however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale, when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of s. 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore we do not think that the sale in this case can be said, in view of s. 47, to have I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 15 been completed on January 31, 1946. The view that we have taken of s. 47 of the Registration Act seems to have been taken in Tilakdhari Singh v. GourNarain [A.I.R. (1921) Pat. 150]. We believe that the same view was expressed in NareshchandraDatta v. Gireeshchandra Das [(1935) I.L.R. 62 Cal. 979] and Gobardhan Bar v. GunaDhar Bar [I.L.R. (1940) II Cal. 270].” The Hon’ble Supreme Court also observed, “...We do not think that a transaction which when completed has a retrospective operation can be said for that reason to have been completed on the date from which it has that operation." The scope of section 47 of the Registration Act again came up for consideration before the Supreme Court in “Hiralal Agrawal v. Rampadarath Singh” AIR 1969 SC 244. The Hon’ble Supreme Court repelled the contention that the title acquired under a document which is subsequently registered would relate back to the date of its execution. The Hon’ble Supreme Court observed: "Mr. Desai argued that under section 47 of that Act once registration is effected, the title under the sale deed relates back to the date of its execution and, therefore, though registration was completed on November 30, 1964, the transferee's title under the sale related back to the date of the execution, i.e., October 9, 1964. Assuming, therefore, that the application was presented on November 26, 1964, the transferee's title having related back to the date of the execution of the sale deed, the transfer must be deemed to be completed on that date, and, therefore, it was not correct that the right of reconveyance had not accrued to the appellant on November 26, 1964, or that the Collector had no jurisdiction on that date to accept the said application. This contention, however, cannot be accepted in view of the decision in Ram Saran Lall v. Mst. Domini Kuer [1962] 2 SCR 474; AIR 1961 SC 1747, where this court rejected an identical contention. Mr. Desai tried to distinguish that case on the ground that it was based on Mahomedan law which by custom applied to the parties there. But the decision is based not on any principle of Mahomedan law but on the effect of section 47 of the Registration Act. The majority decision clearly laid down that the sale there was completed only when registration of the sale deed was completed as contemplated by section 61 of the Registration Act and, therefore, the talab-i-mowasibat made before the date of completion of registration was premature and a suit based on such a demand of the right of pre-emption was premature and must, therefore, fail. Similarly, in Radhakishan L. Toshniwal v. Shridhar [1961] 1 SCR 248; AIR 1960 SC 1368, this court laid down that where a statute providing for the right of pre-emption lays down that it accrues only when transfer of the property takes place and such transfer is not complete except through a registered deed, a suit filed before the sale deed is executed is premature as the right of pre- emption under the statute did not accrue till the transfer became effective through a registered deed." The Hon’ble Jurisdictional Calcutta High Court in the case of “Commissioner of Gift-tax v.Smt. Aloka Lata Sett”[1991] 190 ITR 556 (Calcutta) in the matter of Gift tax I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 16 assessment, while referring to the aforesaid decisions of the Hon’ble Supreme Court in the cases of “Ram Saran Lall v. Mst. Domini Kuer ( Supra) and in Hiralal Agrawal v. Rampadarath Singh”(Supra) has held that the date of registration of the gift deed will be relevant for the purpose of gift-tax assessment, observing as under: “The transfer is not effective until registration of the deed of transfer, whether by gift or sale. The effective date would be the date of registration and not the date of execution. Before registration of the deed, section 47 has no application and before registration of the deed, the gift does not become effective. As observed by the Supreme Court, the object of section 47 is to decide which of the two or more registered instruments in respect of the same property is to have effect. Although, by virtue of section 47, a document when registered is permitted to operate from a date anterior to registration, the gift or sale made by the said document cannot be said to have been completed earlier to the date of registration. The gift is not complete until the registration. Accordingly, the date of registration of the deed of gift would be relevant for the purpose of gift-tax assessment.” Similarly in “ThulasimaniAmmal v. CIT [2000] 108 Taxman 426 (Mad.)”, the Madras High Court also pointed out that transfer of property would become complete only by registration of the document and that, though, by virtue of section 47 of the Indian Registration Act, it would relate back to the date of execution, in such cases, insofar as third parties are concerned, particularly, the tax authorities, the relevant date for the levy of tax is the date of registration of the document. Similar view has been expressed by the Hon’ble madras High Court in the case of “Commissioner of Gift-tax v/s Shree Shyam Sayee Corpn.”[2005] 148 Taxman 216 (Mad.). In “Paritala Narasimham v. Ayinampudi” AIR 1957 AndhPra 535, it was held that the transfer cannot be antedated for the purpose of Section 54 of the Insolvency Act. 12. In view of the law laid down by the Apex court of the country and by various High courts including jurisdiction Calcutta High Court as discussed above, it can be safely concluded that the transfer of the immovable property cannot be said to be complete till the deed is registered and it cannot be said to have been completed earlier because by virtue of s. 47 or section 75 of the Registration Act 1908. These sections, therefore, have nothing to do with the completion of a sale. The object of these sections is to decide which of two or more registered instruments in respect of the same property is to have effect. So far as the third parties like tax authorities are concerned, the relevant I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 17 date will be the date of registration, when the transfer deed is get completed. Our observations made above, however, are subject to the applicability of provisions of section 2(47) of the Income Tax Act in relation to the definition of transfer under Income Tax Act which is to be seen in the peculiar facts and circumstances of each case. The gist of the discussion made above is that the proposition canvassed by Shri Surana, the Ld. Counsel for the assessee that by virtue of provisions of section 47 and section 75 of the Registration Act, the transfer will be deemed to be complete on the date of presentation of the deed to the sub registrar is not well founded and is, therefore, repelled. 13. So far as the contention of the ld. counsel for the assessee that since the title of the assessee was defective, therefore, there was no transfer, we do not find any force in the above contention of the ld. counsel for the assessee. The registered sale deed executed in favour of the assessee by Shri Sujit Kr. Bindal has never been set aside by any court of competent jurisdiction. Though, the plea of the assessee is that his sale deed was not valid, whereas, the assessee, himself, has sold the above said property by way of three registered sale deeds to Priyanka Promoters and Developers. Moreover, the alleged gift executed by Shri Sujit Kr. Bindal allegedly to his brother, in our view, will not have any impact until and unless the registered sale deed in favour of the assessee by the said Sujit Kr. Bindal is not declared null and void by any court of competent jurisdiction. It is commonly known that the sale deed is registered in front of the Sub-Registrar and the seller admits the sale deed in the presence of witnesses who append their signatures in admission of witnesses. In this case also, the purchase deed in favour of the assessee is a registered deed which might have been presented and registered in the presence of witness before the Sub-Registrar, therefore, the plea of the assessee that the same did not confer title upon the assessee is frivolous at this stage. Moreover, the assessee has transferred whatever the rights he has in the property to Priyanka Promoters and Developers by way of registered deed which constitutes transfer of capital asset as per the provisions of section 2(47) of the Income Tax Act. So far as the plea that there was a dispute relating to the title of the property, hence there was less saleable price of the property is concerned, we find that the said issue has not I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 18 been properly considered by the ld. CIT(A). Though, it has been mentioned by the Ld. CIT(A) in the impugned order that the said Sujit Kr. Bindal has appeared before the Assessing Officer and had also furnished the copy of a suit filed against the Priyanka Promoters and Developers, however, no copy of the same has been produced on file before us. It is not clear as to who is/was in possession of the property in question. What are the allegations by the seller relating to the title of the property and whether those allegations/claim made by the original owner/seller had any bearing on the sale price of the property in relation to the sale deeds made by the assessee. Therefore, we restore the matter to the file of the CIT(A) with a limited direction that the ld. CIT(A) will make or cause to make such enquiry so as to ascertain the aforesaid facts and to find out whether there was any justifiable reason for the assessee to transfer the aforesaid property at a much lower rate than the market rate and what would have been the market/saleable value of the property under the circumstances and accordingly to decide this limited issue afresh in accordance with law. 14. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Kolkata, the 23 rd May, 2022. Sd/- SD/- [Rajesh Kumar] [SanjayGarg] Accountant Member Judicial Member Dated: 23.05.2022. RS Copy of the order forwarded to: 1. Shiw Ratan Rampuria 2. ITO, Ward-2(3), Siliguri 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches I.T.A. No.760/Kol/2019 Assessment Year: 2014-15 Shiw Ratan Rampuria 19