Income Tax Officer Ward1(2), Jabalpur V. Smt. Rakhi Agrawal, Jabalpur

ITA 94/JAB/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4341 (ITAT-JABALPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 07-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: I B KHANDEL
• Assessee Lawyers: NEERAJ AGRAWAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Capital Gains; CHAPTER IV
• Section: 56(2)(vii)(b); 143(3); 250; 9(1); 9(1); 9(1); 73; 13; 22; 54

Judgement Text

ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 1 | P A G E IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI NRS GANESAN, JUDICIAL MEMBER & SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.94/JAB/2018 ASSESSMENT YEAR: 2014-15 INCOME TAX OFFICER, WARD -1(2), JABALPUR VS. RAKHI AGRAWAL, JABALPUR (PAN ATFPA0291F) (APPELLANT ) (RESPONDENT) REVENUE BY SHRI I.B.KHANDEL, DR ASSESSEE BY SHRI NEERAJAGRAWAL, CA DATE OF HEARING 17/08/2020 DATE OF PRONOUNCEMENT 27/10/2020 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE REVENUE AGITATING THE ORD ER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1, JABALPUR DA TED 15/2/2018, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING HER ASSES SMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 26/12/2016 FOR ASSESSMENT YEAR (AY) 2014-15. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E, ALONG WITH THREE OTHERS, BEING HER SONS, PURCHASED A PIECE OF LAND VIDE SALE DEED DATED 30.3.2013 FOR A CONSIDERATION OF RS.50,92,500, I.E., AS AGAINST THE STAMP VALUATION OF RS.2,81,60,000, ON WHICH VALUE, THEREFORE, THE STAM P DUTY WAS PAID. THE SAME WAS PRESENTED FOR REGISTRATION WITH THE OFFICE OF T HE SUB-REGISTRAR, JABALPUR ON 30.3.2013 ITSELF (AT 6:45 PM), AND DULY REGISTERED ON 24.4.2013. AS PER THE ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 2 | P A G E ASSESSING OFFICER (AO), THE TRANSFER, THEREFORE, TO OK PLACE ON 24.4.2013, ATTRACTING SECTION 56(2)(VII)(B)(II), WHICH READS A S UNDER: CHAPTER IV-F INCOME FROM OTHER SOURCES 56. (1) INCOME OF EVERY KIND WHICH IS NOT TO BE EXCLUD ED FROM THE TOTAL INCOME UNDER THIS ACT SHALL BE CHARGEABLE TO INCOME-TAX UN DER THE HEAD INCOME FROM OTHER SOURCES, IF IT IS NOT CHARGEABLE TO INCOME-TAX UNDE R ANY OF THE HEADS SPECIFIED IN SECTION 14, ITEMS A TO E. (2) IN PARTICULAR AND WITHOUT PREJUDICE TO THE GENE RALITY OF THE PROVISIONS OF SUB- SECTION (1), THE FOLLOWING INCOME SHALL BE CHARGEAB LE TO INCOME-TAX UNDER THE HEAD INCOME FROM OTHER SOURCES, NAMELY:- (I) (VI); (VII) WHERE AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY REC EIVES, IN ANY PREVIOUS YEAR, FROM ANY PERSON OR PERSONS ON OR AFTER THE 1ST DAY OF OCTOBER, 2009, - (A) ANY SUM OF MONEY, WITHOUT CONSIDERATION, THE AGGREGATE VALUE OF WHICH EXCEEDS FIFTY THOUSAND RUPEES, THE WHOLE OF THE AGGREGATE V ALUE OF SUCH SUM; (B) ANY IMMOVABLE PROPERTY,- (I) WITHOUT CONSIDERATION, THE STAMP DUTY VALUE OF WHICH EXCEEDS FIFTY THOUSAND RUPEES, THE STAMP DUTY VALUE OF SUCH PROPERTY; (II) FOR A CONSIDERATION WHICH IS LESS THAN THE STA MP DUTY VALUE OF THE PROPERTY BY AN AMOUNT EXCEEDING FIFTY THOUSAND RUPEES, THE STAM P DUTY VALUE OF SUCH PROPERTY AS EXCEEDS SUCH CONSIDERATION: PROVIDED THAT WHERE THE DATE OF THE AGREEMENT FIXING THE AMO UNT OF CONSIDERATION FOR THE TRANSFER OF IMMOVABLE PROPERT Y AND THE DATE OF REGISTRATION ARE NOT THE SAME, THE STAMP DUTY VALUE ON THE DATE OF THE AGREEMENT MAY BE TAKEN FOR THE PURPOSES OF THIS SUB-CLAUSE: PROVIDED FURTHER THAT THE SAID PROVISO SHALL APPLY ONLY IN A CASE W HERE THE AMOUNT OF CONSIDERATION REFERRED TO THEREIN, OR A P ART THEREOF, HAS BEEN PAID BY ANY MODE OTHER THAN CASH ON OR BEFORE THE DATE OF T HE AGREEMENT FOR THE TRANSFER OF SUCH IMMOVABLE PROPERTY; (C) ANY PROPERTY, OTHER THAN IMMOVABLE PROPERTY, - PROVIDED THAT WHERE THE STAMP DUTY VALUE OF IMMOVABLE PROPE RTY AS REFERRED TO IN SUB-CLAUSE (B) IS DISPUTED BY THE ASSESSEE ON GROUN DS MENTIONED IN SUB-SECTION (2) OF SECTION 50C, THE ASSESSING OFFICER MAY REFER THE VA LUATION OF SUCH PROPERTY TO A ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 3 | P A G E VALUATION OFFICER, AND THE PROVISIONS OF SECTION 50 C AND SUB-SECTION (15) OF SECTION 155 SHALL, AS FAR AS MAY BE, APPLY IN RELATION TO T HE STAMP DUTY VALUE OF SUCH PROPERTY FOR THE PURPOSE OF SUB-CLAUSE (B) AS THEY APPLY FOR VALUATION OF CAPITAL ASSET UNDER THOSE SECTIONS: PROVIDED FURTHER THAT THIS CLAUSE SHALL NOT APPLY TO ANY SUM OF MONEY OR ANY PROPERTY RECEIVED ACCORDINGLY, THE DIFFERENCE OF RS.2,30,67,500, I.E. , BETWEEN THE GUIDELINE VALUE UNDER THE STAMP ACT (RS.281.60 LACS) AND THE STATED CONSIDERATION (RS.50.925 LACS) WAS BROUGHT TO TAX AS INCOME FROM OTHER SOURC ES. IN APPEAL, THE ASSESSEE, RELYING ON CIT VS. MORMASJI MANCHARJI VAID [2001] 250 ITR 542 (GUJ)(FB) AND CIT VS. PODAR CEMENT (P.) LTD . [1997] 226 ITR 625 (SC), CONTENDED THAT IT IS THE DATE OF THE EXECUTION OF THE CONVEYANCE DEED , I.E., 30.3.2013, WHICH IS THE TRANSFER DATE, SO THAT THE TRANSFER DATE FALLS IN F INANCIAL YEAR (F.Y.) 2012-13, I.E., THE PREVIOUS YEAR RELEVANT TO AY 2013-14, AND NOT T HE CURRENT ASSESSMENT YEAR. SUB-CLAUSE (B) OF SECTION 56(2)(VII), AS ITS STOOD PRIOR TO ITS SUBSTITUTION BY FINANCE ACT, 2013 W.E.F. 1.4.2014, READ AS UNDER: (B) ANY IMMOVABLE PROPERTY, WITHOUT CONSIDERATION, THE STAMP DUTY VALUE OF WHICH EXCEEDS FIFTY THOUSAND RUPEES, THE STAMP DUTY VALUE OF SUCH PROPERTY; THE STATED DIFFERENCE COULD, THEREFORE, NOT BE TAXE D INASMUCH AS THE AMENDMENT BRINGING THE SHORT CONSIDERATION (WITH REFERENCE TO STAMP DUTY VALUE) TO TAX CAME IN FORCE ONLY FROM THE FOLLOWING ASSESSMENT YE AR, I.E., BEGINNING 01.4.2014. THE LD. CIT(A) ALLOWING RELIEF TO THE AS SESSEE ON THAT BASIS, THE REVENUE IS IN APPEAL, RAISING THE FOLLOWING GROUNDS : (I). WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 2,30,67,500/- U/S. 56(2)(VII)(B) OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACT THAT THE DE ED WAS REGISTERED ON 24.04.2013 AND TRANSFER OF IMMOVABLE PROPERTY AS PE R PROVISIONS OF SECTION 2(47) OF THE ACT WILL BE CONSIDERED ON THE DATE THE DEED IS REGISTERED. (II). ANY OTHER GROUND THAT MAY BE ADDUCED AT THE T IME OF HEARING. ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 4 | P A G E 3. BEFORE US, THE CASE OF EITHER SIDE WAS PRINCIPAL LY THE SAME. AS PER THE REVENUE, IT IS WELL-SETTLED THAT THE TITLE TO OR OW NERSHIP OF AN IMMOVABLE PROPERTY (IN EXCESS OF RUPEES ONE HUNDRED) COULD NO T BE CONVEYED BY AN UNREGISTERED DOCUMENT, WHICH IS NOT A VALID DOCUMEN T IN LAW. THE SAME BECOMES A LEGALLY VALID DOCUMENT, WHICH COULD BE EN FORCED IN LAW, ONLY ON ITS REGISTRATION, WHICH IS ON 24.4.2013. THE TRANSFER T HUS BECAME COMPLETE IN LAW ONLY ON THE SAID DATE, SO THAT THE ASSESSEES RIGHT S AS THE OWNER OF THE PROPERTY CONVEYED THEREBY GET RECOGNIZED ONLY WITH EFFECT FR OM THAT DATE. AS PER THE ASSESSEE, ON THE OTHER HAND, SURE, BUT ONCE REGISTE RED, IT SHALL RELATE BACK TO THE DATE OF ITS EXECUTION, I.E., 30.3.2013, FOR WHICH R EFERENCE IS MADE TO S. 47 OF THE REGISTRATION ACT, 1908, WHICH READS AS UNDER: 47. TIME FROM WHICH REGISTERED DOCUMENT OPERATES. A REGISTERED DOCUMENT SHALL OPERATE FROM THE TIME FROM WHICH IT WOULD HAV E COMMENCED TO OPERATE IF NO REGISTRATION THEREOF HAD BEEN REQUIRED OR MADE, AND NOT FROM THE TIME OF ITS REGISTRATION. SECTION 56(2)(VII)(B), AS IT STOOD AT THE RELEVANT TIME, I.E., UP TO THE PREVIOUS YEAR ENDING 31/3/2013, DID NOT INCLUDE RECEIPT OF A N IMMOVABLE PROPERTY FOR A LESSER CONSIDERATION AS A TAXABLE EVENT, SO THAT TH E DEEMING FICTION OF SECTION 56(2)(VII)(B), AS INVOKED, WOULD NOT APPLY FOR AY 2 013-14. FOR AY 2014-15, THERE IS NO TAXABLE EVENT INASMUCH AS THE TRANSFER AND, THUS, THE RECEIPT OF THE IMMOVABLE PROPERTY HAS BEEN COMPLETED ON 30.3.2013, THE IMMEDIATELY PRECEDING PREVIOUS YEAR. 4. WE HAVE HEARD THE PARTIES, PERUSED THE MATERIAL ON RECORD, AND GIVEN OUR CAREFUL CONSIDERATION TO THE MATTER. THE CONTROVERSY 4.1 THE QUESTION BEFORE US IS IF THE PROPERTY UNDER REFERENCE STANDS RECEIVED BY THE ASSESSEE DURING FY 2012-13 OR FY 2013-14, I.E., THE PREVIOUS YEARS ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 5 | P A G E RELEVANT TO AYS. 2013-14 AND 2014-15 RESPECTIVELY. IT IS IN THIS CONTEXT THAT SECTION 2(47), DEFINING THE TERM TRANSFER UNDER THE ACT, REPRODUCED AS UNDER, AND THE CASE LAW CITED, AS WELL AS THE DECISION IN CIT VS. BALBIR SINGH MAINI [2017] 398 ITR 531 (SC), WERE REFERRED TO DURING HE ARING: DEFINITIONS 2. IN THIS ACT, UNLESS THE CONTEXT OTHERWISE REQUIRES, - (47) 'TRANSFER', IN RELATION TO A CAPITAL ASSET, IN CLUDES, (I) THE SALE, EXCHANGE OR RELINQUISHMENT OF THE ASS ET ; OR (II) THE EXTINGUISHMENT OF ANY RIGHTS THEREIN ; OR (III) THE COMPULSORY ACQUISITION THEREOF UNDER ANY LAW ; OR (IV) IN A CASE WHERE THE ASSET IS CONVERTED BY THE OWNER THEREOF INTO, OR IS TREATED BY HIM AS, STOCK-IN-TRADE OF A BUSINESS CAR RIED ON BY HIM, SUCH CONVERSION OR TREATMENT ; OR (IVA) THE MATURITY OR REDEMPTION OF A ZERO COUPON B OND; OR (V) ANY TRANSACTION INVOLVING THE ALLOWING OF THE P OSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A O F THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882) ; OR (VI) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMBER OF, OR ACQUIRING SHARES IN, A CO-OPERATIVE SOCIETY, COMPAN Y OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT O R ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVER) WHIC H HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYMENT OF, ANY IMMOVABLE PROPERTY. EXPLANATION 1 .FOR THE PURPOSES OF SUB-CLAUSES (V) AND (VI), 'IM MOVABLE PROPERTY' SHALL HAVE THE SAME MEANING AS IN CLAUSE (D) OF SECTION 269UA . EXPLANATION 2 .FOR THE REMOVAL OF DOUBTS, IT IS HEREBY CLARIFIED THAT 'TRANSFER' INCLUDES AND SHALL BE DEEMED TO HAVE ALW AYS INCLUDED DISPOSING OF OR PARTING WITH AN ASSET OR ANY INTEREST THEREIN , OR CREATING ANY INTEREST IN ANY ASSET IN ANY MANNER WHATSOEVER, DIRECTLY OR IND IRECTLY, ABSOLUTELY OR CONDITIONALLY, VOLUNTARILY OR INVOLUNTARILY, BY WAY OF AN AGREEMENT (WHETHER ENTERED INTO IN INDIA OR OUTSIDE INDIA) OR OTHERWISE, NOTWITHSTANDING THAT SUCH TRANSFER OF RIGHTS HAS BE EN CHARACTERISED AS BEING EFFECTED OR DEPENDENT UPON OR FLOWING FROM THE TRAN SFER OF A SHARE OR SHARES OF A COMPANY REGISTERED OR INCORPORATED OUTSIDE IND IA; ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 6 | P A G E THE RESPECTIVE CASES 4.2 THE REVENUES STAND IS THAT THE DECISION IN BALBIR SINGH MAINI & ORS . (SUPRA) ABUNDANTLY CLARIFIES THAT AFTER THE COMING INTO FORCE OF THE 2001 ACT, I.E., 24/9/2001, ANY TRANSFER OF IMMOVABLE PROPERTY VALUE D ABOVE RUPEES ONE HUNDRED, SHALL, ON OR AFTER THE SAID DATE, BE RECOG NIZED IN LAW, INCLUDING THE ACT , ONLY WHERE IT IS PER A REGISTERED DOCUMENT, WHICH I N THE INSTANT CASE IS ONLY ON 24/4/2013, FALLING IN THE CURRENT YEAR. IT IS THE D ATE OF REGISTRATION THAT IS THEREFORE RELEVANT, AND THE DATE OF EXECUTION OF TH E DOCUMENT IS, FOR THE PURPOSE, IRRELEVANT. AS PER THE ASSESSEE, THE TRANSFER IN THE INSTANT CA SE IS BY WAY OF SALE, COVERED U/S. 2(47)(I). THE TRANSFER UNDER THE ACT I S THEREFORE COMPLETE ON 30.3.2013, THE DATE OF EXECUTION OF THE SALE DEED I NASMUCH AS A UNREGISTERED DOCUMENT, ON REGISTRATION, RELATES BACK TO THE DATE FROM WHICH IT WOULD OTHERWISE HAVE EFFECT. FURTHER, THE REGISTRATION & OTHER RELATED LAWS (AMENDMENT) ACT, 2001, MAKING AMENDMENTS TO SECTION 49 AND SECTION 53A OF THE REGISTRATION ACT, 1908 AND TRANSFER OF PROPERTY ACT, 1882 RESPECTIVELY, AS WELL AS INSERTING SUB-SECTION (1A) TO SECTION 17 OF THE 1908 ACT, FOR WHICH REFERENCE WAS MADE BY THE REVENUE TO THE BALBIR SINGH MAINI (SUPRA), SHALL HAVE NO BEARING IN THE MATTER. THIS IS AS SECTION 5 3A OF THE TP ACT RELATES TO THE DOCTRINE OF PART PERFORMANCE, WHILE THE INSTANT TRA NSACTION IS ONE OF SALE, COVERED U/S. 17(1) OF THE 1908 ACT AND SECTION 2(47 )(I) OF THE ACT, WHEREIN THERE HAS NEITHER BEEN ANY AMENDMENT NOR ARE IN ANY MANNE R IMPACTED BY THE PASSING OF THE 2001 ACT, SO THAT, WHERE RELEVANT, IT SHALL DEFINITELY IMPINGE ON THE TRANSACTIONS EFFECTED ON OR AFTER 24/9/2001. CASE LAW 4.3 WE MAY NEXT EXAMINE THE CASE LAW CITED AND RELI ED UPON BY EITHER SIDE. ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 7 | P A G E 4.3.1 IN PODAR CEMENT (P.) LTD . (SUPRA), THE APEX COURT EXAMINED THE SCOPE OF THE WORD OWNER OCCURRING IN SECTION 22 OF THE ACT , BRINGING THE INCOME FROM HOUSE PROPERTY TO TAX IN THE HANDS OF ITS OWNER, A MATTER IT HAD EARLIER DECIDED IN JODHA MAL KUTHIALA VS. CIT [1971] 82 ITR 570 (SC) IN THE CONTEXT OF SECTION 9(1) OF THE INCOME TAX ACT, 1922, WHICH WAS SUBSTAN TIALLY THE SAME AS SECTION 22 OF THE ACT. THIS WAS DUE TO A CONFLICT OF VIEW B ETWEEN DIFFERENT HIGH COURTS, I.E., AS BETWEEN A LEGAL OWNER AND BENEFICIAL OW NER, IN WHOSE HANDS THE INCOME FROM A HOUSE PROPERTY IS TO BE TAXED INASMUC H AS A PROPERTY CANNOT HAVE TWO OWNERS AT THE SAME TIME. THE SECTION, IT HAD EARLIER EXPLAINED IN JODHA MAL KUTHIALA (SUPRA) , BRINGS TO TAX THE INCOME FROM HOUSE PROPERTY AND NOT THE INTEREST IN THE PROPERTY . THE OWNER U/S. 22 IS THUS THE PERSON WHO CAN EXER CISE THE RIGHTS OF AN OWNER, NOT ON BEHALF OF OTHER, BUT IN HIS OWN RIGHT. THUS, THE PERSON WHO RECEIVES THE RENT IN HIS OWN RIGHT, APPR OPRIATES THE USUFRUCTS FOR HIS OWN PURPOSES, HAVING NO INTERFERENCE AT THE INSTANC E OF THE VENDOR, I.E., THE DE FACTO OWNER, WAS TO BE REGARDED AS THE OWNER FOR THE PUR POSES OF SECTION 22, HAVING REGARD TO GROUND REALITIES AS WELL AS THE OB JECT OF THE ACT, I.E., TO TAX THE INCOME. STRENGTH WAS ALSO DRAWN BY IT FROM THE FACT OF INSERTION OF CLAUSE (IIIA) TO SECTION 27, DEEMING THE PERSON ALLOWED TO TAKE O R RETAIN POSSESSION OF ANY BUILDING OR PART THEREOF IN PART PERFORMANCE OF A C ONTRACT OF THE NATURE REFERRED IN SECTION 53A OF THE TP ACT, BY FINANCE ACT, 1987 W.E.F. 1.4.1988, WHICH IT REGARDED AS DECLARATORY AND, THUS, RETROSPECTIVE. 4.3.2 THE NEXT DECISION REFERRED TO AND, IN FACT, H EAVILY RELIED UPON BY THE ASSESSEE DURING HEARING, STATED TO BE COVERING THE MATTER SQUARELY, IS MORMASJI MANCHARJI VAID (SUPRA). THE SAID CASE RELATED TO TRANSFER OF LEAS E-HOLD RIGHTS BY A LESSEE BY WAY OF SUB-LEASE, DEED FOR WHICH WAS EX ECUTED BY THE PARTIES ON 05.01.1974, AND FINALLY REGISTERED ON 02.3.1974; TH E TWO DATES FALLING IN AYS. 1974-75 AND 1975-76 RESPECTIVELY, SO THAT THE ISSUE WAS OF THE EFFECTIVE DATE OF TRANSFER U/S. 2(47) FOR THE PURPOSE OF CHARGE OF CA PITAL GAINS U/S. 45 OF THE ACT. ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 8 | P A G E THE HONBLE COURT NOTICING THE DIVERGENT VIEWS BY T HE SAID COURT ITSELF, AFTER DELIBERATION AT LENGTH, HELD THAT THE TRANSFER AS D EFINED U/S. 2(47) OF THE ACT HAS TO BE GIVEN A SIMPLE MEANING, TAKING INTO CONSIDERA TION THE OBJECT OF THE ACT. FOR THE PURPOSE OF TAX ON CAPITAL GAINS U/S. 45, TR ANSFER OF IMMOVABLE PROPERTY OF VALUE EXCEEDING RS.100/- IS EFFECTED ON THE DATE OF EXECUTION OF THE TRANSFER, AND NOT EITHER ON THE DATE OF PRESENTATION OF THE D OCUMENT FOR REGISTRATION OR ON THE DATE ON WHICH REGISTRATION OF THE DEED IS COMPL ETED. THAT IS, THE CAPITAL GAINS HAS TO BE ASSESSED TO TAX FOR THE ASSESSMENT YEAR R ELEVANT TO THE PREVIOUS YEAR WITHIN WHICH THE DATE OF EXECUTION OF THE DEED FOR TRANSFER FALLS, AND NOT THE SUBSEQUENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH THE DEED IS REGISTERED. HEAVY RELIANCE WAS PLACED BY IT ON PODAR CEMENT P. LTD . (SUPRA). 4.3.3 THE THIRD DECISION REFERRED TO DURING HEARING , RELIED UPON BY THE REVENUE, IS BALBIR SINGH MAINI (SUPRA). IN FACTS OF THE CASE, POSSESSION OF SUBJE CT LAND WAS GIVEN BY THE COOPERATIVE SOCIETY, FOR AND ON BE HALF OF ITS INDIVIDUAL MEMBERS, TO THE DEVELOPER, TO BE CONVEYED THERETO I N PHASES, IN LIEU OF, BESIDES SOME PAYMENT IN CASH THERETO, FLATS TO THE INDIVIDU AL MEMBERS OF THE SOCIETY. THE LAND, AS PER THE JOINT DEVELOPMENT AGREEMENT (J DA), WAS TO BE CONVEYED IN FAVOUR OF THE DEVELOPER BY WAY OF REGISTERED CONVEY ANCE DEEDS, PIECE MEAL, AGAINST PAYMENT IN DEFINED INSTALLMENTS AND/OR ALLO TMENT OF FLATS TO THE MEMBERS. THE PROJECT, HOWEVER, COULD NOT BE COMPLET ED AND HAD TO BE ABANDONED MIDWAY FOR WANT OF NECESSARY PERMISSIONS, AND WAS FINALLY INTERDICTED BY THE HONBLE COURT. THE REVENUE, HOWE VER, CLAIMED ACCRUAL OF CAPITAL GAINS U/S. 45 R/W S. 2(47)(V) QUA THE ENTIRE LAND ON THE BASIS OF THE JDA, INASMUCH AS THERE HAD BEEN DELIVERY OF ITS POSSESS ION BY THE SOCIETY (AND ITS MEMBERS), ATTRACTING SEC. 53A OF THE TP ACT. THIS W AS REPELLED BY THE HONBLE COURT, AMONG OTHERS, ON THE BASIS THAT THE REQUIREM ENT OF REGISTRATION EXTENDED TO A CONTRACT TO TRANSFER, I.E., AFTER COMING INTO FORCE OF THE 2001 ACT, WHEREBY AMENDMENTS WERE MADE TO S.17 (BY WAY OF INSERTION O F SUB-SECTION (1A)) AND ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 9 | P A G E S.49 OF THE 1908 ACT, AS ALSO S. 53A OF THE 1882 AC T. THE JOINT DEVELOPMENT AGREEMENT HAVING NOT BEEN REGISTERED UNDER THE REGI STRATION ACT, NO PROTECTION U/S. 53A OF THE TP ACT WAS AVAILABLE TO THE TRANSFE REE-DEVELOPER, SO THERE WAS NO TRANSFER U/S.2(47)(V) OF THE ACT. DISCUSSION 4.4 WE MAY NOW VIEW THE TRANSACTION WITH REFERENCE TO THE DEFINING CLAUSES OF TRANSFER U/S. 2(47), WHICH ALLOWS IT A WIDE AM PLITUDE, WHEREBY, RATHER, ANY ARRANGEMENT WHICH HAS THE EFFECT OF TRANSFERRING OR ENABLING THE ENJOYMEN T OF ANY IMMOVABLE PROPERTY IS REGARDED AS TRANSFER UNDER ITS RESIDUARY CLAUSE (VI). IT IS FOR SUCH LIKE REASONS THAT THE HONBLE COURTS, A S IN MORMASJI MANCHARJI VAID (SUPRA), HAVE HELD THAT THE TERM TRANSFER IS TO B E, GIVEN THE OBJECT OF THE ACT, GIVEN A SIMPLE MEANING. TRUE, THE WORD EMPLOYED IN SEC. 56(2)(VII)(B)(REFER PARA 2) IS RECEIVES, NOT SEPARATELY DEFINED UNDER THE ACT. THE TWO CONCEPTS, I.E., TRANSFER AND RECEIPT, ARE HOWEVER INEXTRI CABLY LINKED. IT CANNOT BE THAT A PROPERTY IS RECEIVED BY ONE WITHOUT IT BEING TRANSF ERRED THERETO BY THE OTHER, OR, CORRESPONDINGLY, THERE IS A TRANSFER OF PROPERTY WI THOUT IT BEING RECEIVED BY THE TRANSFEREE. FURTHER, THE ACT, IT NEEDS TO BE APPREC IATED, IS TO BE READ AS ONE WHOLE. READING THE WORD RECEIVES DE HORS THE WORD TRANSFER, AS DEFINED UNDER THE ACT, WOULD NOT ONLY MAKE IT AS WITHOUT A FIRM LEGAL BASIS, IT WOULD ALSO RENDER THE ACT AS INTERNALLY INCONSISTENT. IN FACT, THE WORD RECEIVES IN COMMON PARLANCE CONNOTES PUTTING ONE IN EFFECTIVE C HARGE OF THE CHATTEL OR THE THING RECEIVED, WHICH AGREES WITH THE BROAD DEFINIT ION GIVEN TO THE TERM TRANSFER UNDER THE ACT. 4.4.1 WE SHALL FIRST EXAMINE THE TRANSACTION UNDER REFERENCE FROM THE STAND- POINT OF SECTION 2(47)(I), I.E., AS SALE SIMPLICI TER, AS IT ACTUALLY IS, SO THAT THERE MAY BE NO NEED FOR TRAVELLING TO ANY OTHER CLAUSE O F SECTION 2(47) FOR THE PURPOSE (REFER PARAS 3, 4.2 & 4.3.2). SECTION 17(1) (A) OF THE REGISTRATION ACT ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 10 | P A G E REQUIRES THE SALE DEED, WHERE THE VALUE OF THE IMMO VABLE PROPERTY BEING TRANSFERRED IS AT RS.100 OR MORE, TO BE COMPULSORIL Y REGISTERED, FAILING WHICH, AS PER SECTION 49, IT SHALL NOT AFFECT THE IMMOVABLE P ROPERTY COMPRISED THEREIN. SECTION 47 OF THE SAID ACT, HOWEVER, MAKES IT CLEAR THAT, UPON REGISTRATION, WHICH IN THE PRESENT CASE TAKES PLACE ON 24/4/2013, THE SALE DEED SHALL OPERATE FROM THE TIME IT WOULD OTHERWISE HAVE, I.E., HAD IT NOT BEEN REQUIRED TO BE REGISTERED. THAT IS, IT SHALL OPERATE FROM THE DATE THE AGREEMENT COMES INTO FORCE, BEING THE DATE OF ITS EXECUTION, 30/3/2013, IN THE INSTANT CASE. THIS IS ALSO WHAT HAS BEEN CLARIFIED BY THE HONBLE COURT IN THAKUR KISHAN SINGH V. ARVIND KUMAR , AIR 1995 SC 73 AND HAMDA AMMAL V. AVADIAPPPA PATHAR [1991] SCC 715, REFERRED TO IN MORMASJI MANCHARJI VAID (SUPRA)(AT PG. 555). IN FACT, THE SUBSTITUTED SECTION 56(2)(VI)(B) OF THE ACT BY FINA NCE ACT, 2013, W.E.F. 01/04/2014, ITSELF MAKES IT CLEAR PER FIRST PROVISO THERETO THAT WHERE THE DATE OF AGREEMENT AND OF ITS REGISTRATION IS NOT THE SAME, THE STAMP VALUE AS ON THE FORMER DATE SHALL BE ADOPTED FOR THE PURPOSE OF THE PROVISION. THOUGH EXCEPTION TO THE RULE IS MADE PER THE SECOND PROVISO WHERE A PART OF THE SALE CONSIDERATION HAS BEEN PAID IN CASH (LEGAL TENDER), THE PROVISION , IN SUBSTANCE, SEEKS TO GIVE PRIMACY TO THE DATE OF THE AGREEMENT, WHERE IT IS, AS IN THE INSTANT CASE, SUBSEQUENTLY REGISTERED. THIS ALSO SUMS UP THE ASSE SSEES CASE. THE ARGUMENT, IMPRESSIVE AT FIRST BLUSH, IS, HOWEVE R, INADMISSIBLE. THIS IS FOR THE REASON THAT THIS ASPECT HAS BEEN CLARIFIED ON MORE THAN ONE OCCASION BY THE APEX COURT. PER ITS CONSTITUTION BENCH (COMPRISING 7 JUDGES) D ECISION IN RAM SARAN LALL VS. MST. DOMINI KUER , AIR 1961 SC 1747, IT WAS EXPLAINED THAT THE OBJEC T OF SECTION 47 (OF THE REGISTRATION ACT, 1908) IS TO DECIDE WHICH OF THE T WO (OR MORE) REGISTERED INSTRUMENTS IN RESPECT OF THE SAME PROPERTY SHALL HAVE EFFECT. IT WAS OBSERVED THAT THE SAID SECTION DOES NOT SAY WHEN THE SALE WOULD BE DEEMED TO BE COMPLET E . IT ONLY PERMITS A DOCUMENT, WHEN REGISTERED, TO OPERATE FROM A CERTAIN DATE WHI CH MAY BE EARLIER THAN THE DATE WHEN IT WAS REGISTERED. IN SUM, A SALE WHICH WAS REQUIRED TO BE REGISTERED WAS NOT COMPLETE ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 11 | P A G E UNTIL THE REGISTRATION OF THE DEED WAS COMPLETED . THE COURT THUS READ THE SECTION WITH REFERENCE TO THE OBJECT OF THE PROVISION. HOW COULD, THEN, ONE WONDERS, THE SALE BE SAID TO TAKE PLACE PRIOR TO ITS REGISTRATION ? THE SCOPE OF SECTION 47 WAS AGAIN CONSIDERED BY THE APEX COURT IN HIRALAL AGRAWAL VS. RAMPADARATH SINGH , AIR 1969 SC 244. THE POINT CANVASSED BEFORE THE HONBLE COURT WAS THAT T HE TITLE ACQUIRED UNDER A DOCUMENT WHICH IS SUBSEQUENTLY REGISTERED WOULD RELATE BACK TO THE DATE OF ITS EXECUTION. THE ARGUMENT WAS IN TERMS REPELLED BY THE APEX COURT VI DE PARA 11 OF ITS DECISION, PLACING RELIANCE ON ITS EARLIER DECISION IN RAM SARANS CASE. THESE DECISIONS, REFERRED TO IN MORMASJI MANCHARJI VAID (SUPRA)(AT PG. 546), HOLD THE FIELD TO DATE AND, B ESIDES, BEING BY A LARGER BENCH, COULD EVEN OTHERWISE BE OVER-RUL ED ONLY BY A STILL LARGER BENCH. THE DATE OF SALE AS PER THE LAW, IN THE PRESENT CASE, I S THUS 24/4/2013, AND WHICH THEREFORE IS THE DATE OF TRANSFER U/S. 2(47)(I). IN FACT, NOT SO CONSTRUING WOULD AMOUNT TO ONE ARM OF LAW DEFEATING ANOTHER, WHICH IS IMPERMISSIBLE IN LA W, AS EXPLAINED IN JER & CO. V. CIT [1971] 79 ITR 546 (SC) AND BIHARI LAL JAISWAL V. CIT [1996] 217 ITR 746 (SC). THE SAME, IN EFFECT, IS ALSO THE SUM AND SUBSTANCE OF T HE DECISION IN BALBIR SINGH MAINI (SUPRA) QUA S. 2(47)(V) OF THE ACT R/W S. 53A OF THE TP ACT, W HEREIN AGAIN REFERENCE HAS BEEN MADE BY IT TO OTHER DECISIONS BY THE APEX COUR T. (ALSO REFER PARA 4.4.2) 4.4.2 WE, NEXT, CONSIDER THE TRANSFER WITH REFERENC E TO SECTION 2(47)(V) (PARA 4.3.3). THE SAME IS CLEARLY INAPPLICABLE INASMUCH A S, EVEN AS CONTENDED BY THE LD. COUNSEL, SHRI AGARWAL, BEFORE US, THAT IT IS NO T A CASE OF PART PERFORMANCE OF A CONTRACT TO TRANSFER. REFERENCE TO THE DECISION I N BALBIR SINGH MAINI (SUPRA) IS, THEREFORE, TO NO CONSEQUENCE. THERE IS, HOWEVER, TO OUR MIND, ANOTHER ASPECT OF THE MATTER. THE SAID DECISION, CONTRARY TO WHAT SHR I AGARWAL WOULD SUGGEST, HAS IMPLICATION FOR SECTION 2(47)(I) AS WELL. IN RATIO, THE DECISION CLARIFIES THAT WHERE A CONTRACT TO TRANSFER IS REQUIRED TO BE COMPULSORI LY REGISTERED (U/S. 17 OF 1908 ACT), NO COGNIZANCE THERETO UNDER LAW, INCLUDING TH E ACT, COULD BE GIVEN. THIS IS IN VIEW OF SECTION 49 OF THE SAID ACT, WHICH PRO VIDES FOR, AMONG OTHERS, NON- AFFECTING ANY IMMOVABLE PROPERTY COMPRISED IN A DOC UMENT UNLESS IT HAS BEEN ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 12 | P A G E REGISTERED, I.E., WHERE REQUIRED TO BE SO U/S. 17 O F THE SAID ACT. SEC. 49, AFTER THE COMING INTO EFFECT OF THE 2001 ACT, DRAWS NO DISTIN CTION BETWEEN A DOCUMENT REQUIRED TO BE REGISTERED U/S. 17(1) OR S. 17(1A) O F THE REGISTRATION ACT. THE AMENDMENTS TO SECTIONS 17 (WAY OF INSERTION OF SUB SECTION (1A)) AND 49 OF THE SAID ACT AND SECTION 53A OF THE TP ACT, ONLY PLACE SECTION 2(47)(V), IN-SO-FAR AS IT RELATES TO TRANSFER OF IMMOVABLE PROPERTY PER TH E MODES DEFINED U/S. 17 OF THE 1908 ACT, AND SECTION 2(47)(I) OF THE ACT, AT PAR, I.E., ON THE SAME FOOTING. 4.4.3 WE MAY NEXT EXAMINE THE TRANSACTION FROM THE STAND-POINT OF SECTION 2(47)(VI) (REFER PARA 4.3.1). THE PARTIES HAVE EXEC UTED THE INSTRUMENT OF TRANSFER ON 30/3/2013, PERFORMING THEIR RESPECTIVE PROMISES, SO THAT THE CONTRACT IS COMPLETE BETWEEN THEM, I.E., EXCEPT ITS REGISTRATIO N, AND TOWARD WHICH THE SAME WAS SUBMITTED WITH THE OFFICE OF SUB-REGISTRAR ON 3 0/3/2013 ITSELF. THOUGH IT IS NOT CLEAR AS TO HOW IT WAS SO AS 30/3/2013 HAPPENS TO BE A SATURDAY (WHEREAT THE GOVERNMENT OFFICES ARE GENERALLY CLOSED) AND, BESID ES, AT 6:45 P.M., WHILE THE GOVERNMENT OFFICES GENERALLY CLOSE EARLIER, I.E., L ATEST BY 6 P.M. HOWEVER, THE SAID DATE AND TIME, MANIFEST ON THE DOCUMENT (PB PG S. 39-58), ARE NOT IN DISPUTE. COULD IT, THEREFORE, ON THE BASIS THEREOF, BE SAID THAT THE ASSESSEE-BUYER IS THE DE FACTO OWNER OF THE SUBJECT PROPERTY AS ON 30/3/2013? WE SEE NO REASON FOR IT TO BE NOT SO . TRUE, BEING NOT REGISTERED, THE SAID INSTRUMENT I S NOT A VALID CONTRACT, WHICH IS BY DEFINITION AN AGREEMENT ENFOR CEABLE IN LAW (S. 2(H) OF THE INDIAN CONTRACT ACT, 1872). AT THE SAME TIME, WE CA NNOT BUT TAKE COGNIZANCE OF THE FACT THAT THE PARTIES INTENDED REGISTRATION THE REOF AND, IN FACT, MOVED WITH ALACRITY FOR THE SAME. SOME TIME, IT MAY BE APPRECI ATED, WOULD ALWAYS LAPSE BETWEEN THE TWO EVENTS, OVER WHICH TIME THE RIGHTS UNDER SPECIFIC RELIEF ACT OF A TRANSFEREE FOR CONSIDERATION STAND PROTECTED IN T ERMS OF S. 49 OF THE REGISTRATION ACT ITSELF. SURE, NO COGNIZANCE CAN IN LAW BE GIVEN TO THE DOCUMENT AS ON 31/03/2013, THE YEAR-END AND, THUS, THE MATER IAL DATE, IN VIEW OF SEC. 17 R/W S. 49 OF THE REGISTRATION ACT. THE IMPORT OF TH E SAME, HOWEVER, WOULD ONLY ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 13 | P A G E BE THAT THE ASSESSEE CANNOT BE REGARDED AS THE LEGA L OWNER OF THE SUBJECT LAND AS AT THE YEAR-END. HOWEVER, EVEN AS EXPLAINED IN BALBIR SINGH MAIN I (SUPRA), RELIED UPON BY THE REVENUE: THE OBJECT OF SECTION 2(47)(VI) APPEARS TO BE TO BR ING WITHIN THE TAX NET A DE FACTO TRANSFER OF ANY IMMOVABLE PROPERTY. THE EXPRESSION ENABLING THE ENJOYMENT OF TAKES ITS COLOUR FROM THE EXPRESSION TRANSFERRING, SO T HAT IT IS CLEAR THAT ANY TRANSACTION WHICH ENABLES THE ENJOYMENT OF IMMOVABLE PROPERTY M UST BE ENJOYMENT AS A PURPORTED OWNER THEREOF . (PG. 550) WE HAVE ALREADY NOTED THAT BOTH THE PARTIES TO THE CONVEYANCE DEED HAVE PERFORMED THEIR PARTS OF THE CONTRACT, I.E., GIVING AND TAKING POSSESSION OF THE LAND AS WELL AS PAYING AND RECEIVING FULL CONSIDERA TION IN ITS RESPECT. EVEN EARLIER, IN THE CONTEXT OF SECTION 22, I.E., BRINGI NG THE INCOME FROM HOUSE PROPERTY TO TAX IN THE HANDS OF ITS OWNER, ON BEIN G CALLED UPON THE RESOLVE THE CONFLICT BETWEEN A LEGAL OWNER AND BENEFICIAL OW NER, THE APEX COURT CLARIFIED IN PODAR CEMENT PVT. LTD . (SUPRA) THAT THOUGH UNDER COMMON LAW OWNER MEANS A PERSON WHO HAS GOT A VALID TITLE LE GALLY CONVEYED TO HIM AFTER COMPLYING WITH THE REQUIREMENTS OF LAW, SUCH AS TRA NSFER OF PROPERTY ACT; THE REGISTRATION ACT, ETC., IN THE CONTEXT OF SECTION 2 2 OF THE ACT, HAVING REGARD TO THE GROUND REALITIES AND, FURTHER, THE OBJECT OF TH E ACT, NAMELY TO TAX THE INCOME, THE OWNER IS THE PERSON WHO IS ENTITLED TO RECEIVE THE INCOME IN HIS OWN RIGHT. THE REQUIREMENT OF REGISTRATION OF THE SALE DEED IS , IN THE CONTEXT OF SECTION 22, NOT WARRANTED, AND AFFIRMED ITS DECISION IN JODHA MAL KUTHIALA (SUPRA). EARLIER, IN CIT (ADDL.) VS. SAHAY PROPERTIES INVESTMENT CO. P. LTD . [1983] 144 ITR 357 (PAT), THE HONBLE COURT HELD AS UNDER, WHICH WAS N OTED WITH APPROVAL IN PODAR CEMENT PVT. LTD . (SUPRA): (PG. 364) ' THE JURISTIC PRINCIPLE FROM THE VIEW-POINT OF EACH ONE IS TO DETERMINE THE TRUE CONNOTATION OF THE TERM OWNER WITHIN THE MEANING OF SECTION 22 OF THE ACT IN ITS PRACTICAL SENSE, LEAVING THE HUSK OF THE LEGAL TITL E BEYOND THE DOMAIN OF OWNERSHIP FOR THE PURPOSE OF THIS STATUTORY PROVISION. THE REASON IS OBVIOUS. AFTER ALL, WHO IS TO BE TAXED OR ASSESSED TO BE TAXED MORE ACCURATELY - A P ERSON IN RECEIPT OF MONEY HAVING ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 14 | P A G E ACTUAL CONTROL OVER THE PROPERTY WITH NO PERSON HAV ING BETTER RIGHT TO DEFEAT HIS CLAIM OF POSSESSION OR A PERSON IN LEGAL PARLANCE WHO MAY REMAIN A REMAINDER MAN, SAY AT THE END OR EXTINCTION OF THE PERIOD OF OCCUPATION A FTER, AGAIN SAY, A THOUSAND YEARS? ' HERE IT ALSO NEEDS TO BE NOTED THAT IN ATMARAM SAKHARAM KALKAYE V. VAMAN JANARDHAN KASHELIKAR , AIR 1925 BOM 210, AGAIN REFERRED TO IN MORMASJI MANCHARJI VAID (SUPRA)(PG. 548), THE HONBLE BOMBAY HIGH COURT, P ER ITS FULL BENCH DECISION, AFTER AN AT LENGTH CONSIDERATION OF THE PROVISIONS OF THE TP ACT AND THE REGISTRATION ACT, HELD THAT THE DONOR WAS N OT COMPETENT TO REVOKE THE GIFT OF AN IMMOVABLE PROPERTY BEFORE THE DOCUMENT ( GIFT DEED) WAS REGISTERED. THE REGISTRATION ACT, IT EXPLAINED, DOES NOT NECESS ITATE THE CONSENT OF THE TRANSFEROR BEING OBTAINED FOR REGISTRATION. CONSEQU ENTLY, SECTIONS 54 AND 59 OF THE TP ACT (WHICH DEAL WITH TRANSFERS BY WAY OF SA LE AND MORTGAGE RESPECTIVELY) WERE CONSTRUED AS NECESSITATING TWO T HINGS, VIZ. (A) TRANSFER EXECUTED BY THE TRANSFEROR, AND (B) REGISTRATION, W HICH MAY BE EFFECTED BY EITHER OF THE PARTIES, BUT WHICH DOES NOT DEPEND ON THE CONSENT OF THE TRA NSFEROR . IT IS THUS NOT POSSIBLE FOR THE TRANSFEROR TO REVOKE THE TRANSACTION, I.E., BEFORE ITS REGISTRATION, SO THAT THE PROTECTION OF LAW IS AVAILABLE TO THE T RANSFEREE . THIS WOULD ENABLE ONE TO UNDERSTAND, OR UNDERSTAND BETTE R, AS TO WHY IT IS SAID THAT THE TRANSFEREE ENJOYS A BETTER RIGHT TO THE PROPE RTY THAN ANYONE ELSE OR THAT THERE IS NO PERSON WITH A BETTER RIGHT TO DEFEAT HI S CLAIM. SECTION 2(47)(VI) RECOGNIZES A DE FACTO TRANSFER FOR THE PURPOSES OF THE ACT, AND THERE IS ACCORDINGLY A TRANSFER U/S. 2(47)(VI) OF THE ACT ON THE EXECUTION OF THE AGREEMENT ON 30/3/2013. IN CONCLUSION 5. THE DE FACTO OWNERSHIP, RECOGNIZED IN PODAR CEMENT PVT. LTD . (SUPRA), IS FOR THE PURPOSE OF SECTION 22 OF THE ACT. THE REASO N/S THEREFOR IS NOT FAR TO SEEK, I.E., THE OBJECT OF THE ACT, BEING TO TAX THE PERSO N WHO IS IN THE EFFECTIVE CONTROL OF THE ASSET (PROPERTY), AND WHO HAS A BETTER TITLE THERETO THAN ANYONE ELSE, ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 15 | P A G E RECEIVING INCOME THEREFROM IN HIS OWN RIGHT. WE SAY BETTER TITLE INASMUCH AS THOUGH THE TRANSFEREE CANNOT, PENDING REGISTRATION, BE REGARDED AS THE LEGAL OWNER, YET HAS BEEN GIVEN POSSESSION BY THE TRANSFE ROR, WHO IS BOUND TO HONOUR HIS PART OF THE CONTRACT, AND IS CONSTRAINED NOT TO REVOKE IT NOR OBJECT TO ITS REGISTRATION. THOUGH THE APEX COURT IN JODHA MAL KUTHIALA (SUPRA) JUSTIFIED ITS DECISION ON, AMONG OTHERS, THE GROUND THAT SECTION 9(1) (CORRESPONDING TO SECTION 22 OF THE ACT) SEEKS TO TAX THE INCOME FROM THE HOUSE PROPERTY, AND NOT THE INTEREST THEREIN, THE TWO CONCEPTS, AS WOULD BE APPARENT, MERGE AT ONE POINT INASMUCH AS A DE FACTO TRANSFER WOULD LEAD TO A DE FACTO OWNERSHIP. THAT, IN FACT, IS THE WHOLE PREMISE OF RELYING ON THE DECISION IN PODAR CEMENTS (P.) LTD . (SUPRA) BY THE ASSESSEE OR, FOR THAT MATTER, BY THE HONBLE COURT IN MORMASJI MANCHARJI VAID (SUPRA). NO DOUBT, THE WORD EMPLOYED IN SECTION 56(2)(VII) I S RECEIVES. THE SAME, AGAIN, COULD ONLY MEAN RECEIPT IN HIS OWN RIG HT, ASSUMING EFFECTIVE CONTROL OVER AND RIGHT ON THE USUFRUCT OF THE PROPE RTY, IMPLYING A DE FACTO OWNERSHIP. IT IS ONLY A DE FACTO TRANSFER, WHICH STANDS RECOGNIZED U/S. 2(47)(VI) OF THE ACT, THAT WOULD RESULT IN A DE FACTO OWNERSHIP, FULFILLING THE REQUIREMENT OF A RECEIPT U/S. 56(2)(VII) INASMUCH AS IT ENABL ES ONE TO EXERCISE, FOR ALL PRACTICAL PURPOSES, RIGHTS IN AND OVER THE PROPERTY RECEIVED. WHILE THE SALE, RESULTING IN A DE JURE OWNERSHIP, IS COMPLETE ONLY ON 24/4/2013, THE DE FACTO TRANSFER, LEADING TO A DE FACTO OWNERSHIP, GETS COMPLETED EARLIER ON 30/3/2013 ON THE EXECUTION OF THE INSTRUMENT OF SALE, WITH EACH PARTY HAVING FULFILLED HIS PART OF THE CONTRACT TO TRANSFER. THERE IS THUS RECEIPT OF THE SUBJECT LAND BY THE ASSESSEE ON 30/3/2013, I.E., DURING THE PREVIOUS YE AR RELEVANT TO AY 2013-14, THE IMMEDIATELY PRECEDING YEAR. THE TAXABLE EVENT U/S. 56(2)(VII)(B) THUS TAKES PLA CE DURING THE SAID YEAR, AND NOT THE CURRENT YEAR. THAT, FOR THAT YEAR, THE LAW DID NOT BRING THE SHORT CONSIDERATION TO TAX, BUT ONLY WHERE THE SUBJECT PR OPERTY IS RECEIVED WITHOUT ITA NO. 94/JAB/2018 (AY 2014-15) ITO VS. RAKHI AGRAWAL 16 | P A G E CONSIDERATION, IS A DIFFERENT MATTER ALTOGETHER, WI TH WHICH WE ARE NOT CONCERNED AND, IN FACT, IS, TO THAT EXTENT, AN IRRELEVANT CON SIDERATION. THE REVENUES ACTION IN INVOKING S. 56(2)(VII)(B)(II) FOR THE CURRENT YE AR IS THUS NOT SUSTAINABLE IN LAW. WE DECIDE ACCORDINGLY, UPHOLDING THE IMPUGNED ORDER . 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED ON OCTOBER 27, 2020 UNDER RULE 34( 4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUN TANT MEMBER DATED: 27/10/2020 // TRUE COPY //