TaxTMI 
TaxTMI 
2015 (4) TMI 2
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....ains and other sources. During the course of scrutiny proceedings, the Assessing Officer found that the assessee had received an amount of Rs. 2,45,00,000 as his share of sale proceeds from sale of house property, but, had admitted only Rs. 24,96,507 as capital gains. The Assessing Officer noticed that the transaction of sale of the house property took place in the financial year 2005-06. Therefore, the Assessing Officer held that the capital gain should be brought to tax in the assessment year 2006-07 and not in the assessment year under consideration, viz., 2007-08. Further, taking note of the assessee's claim for relief under section 54 of the Act in respect of two residential properties, observing that relief under section 54 is allowable only in respect of one house property only-the one of higher value, viz., the one at Banjara Hills, Road No. 12, Hyderabad, made addition in relation to the value of the other property in respect of which also relief under section 54 of the Act was claimed. With that addition of Rs. 53,75,000, the Assessing Officer completed the assessment on a total income of Rs. 76,95,110 vide order of the assessment dated December 29, 2009, passed under....
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....be assessed in the current assessment year, only, viz., 2007-08. He also submitted written submissions, which, as summarised by the Commissioner of Income-tax (Appeals) in paragraph 5.1 read as follows : 'The appellant is an HUF has no sources of income but had one- third share in capital gains and hence filed its return of income admit ting capital gains of Rs. 2,90,102 after setting off loss from other sources of Rs. 4,09,442. The Assessing Officer completed the assessment after scrutiny determining the loss to be Rs. 4,09,442 being loss from other sources. While doing so, the Assessing Officer held that the capital gains arising from sale of property bearing No. 6-3-240. Rd. No.1, Banjara Hills, Hyderabad registered on January 1, 2007 is assessable only in the assessment year 2006-07 and not in this year. During the course of assessment proceedings it was submitted that the sale deed drafted on September 3, 2005 was not acted upon and hence the question of handing over possession as stated in that unexecuted deed does not arise. It was also submitted that the possession of building was handed ove....
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....on and M/s. AZ Developers. (4) During the proceedings before the Commissioner of Income- tax (Appeals), the authorised representative of the assessee has taken a stand that he had not given the possession as per the unregistered sale deed and instead gave possession on October 1, 2006. The asses see's authorised representative submitted additional evidence in the form of letter dated October 11, 2006, which says that possession was given on October 11, 2006. Further the telephone bill from BSNL issued on May 6, 2006 in favour of M/s. Vimal Kumar Agarwal and another in favour of Shri Purushothamdas Agarwal for landline was also submitted. It was pointed out that the numbers mentioned on those bills is that of the property in question. The authorised repre sentative wanted to prove that the possession has handed over in the financial year 2006-07 only. The additional evidence was admitted by the Commissioner of Income-tax (Appeals) and a remand report was called for from the Assessing Officer. In the remand report, the Assessing Officer pointed out that the assessee was given an oppor tunity to submit evidence for intimation of change of address, which ought to have been submitt....
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....ls) doubted the very authenticity of the said letter. (7) Further, the Commissioner of Income-tax (Appeals) distinguished the decision in Asst. CIT v. Hotel Harbour View [2010] 2 ITR (Trib) 178 (Cochin) relied upon by the authorised representative for the assessee before him, observing that in that case, there was non performance of the contract and accordingly, the property was not transferred, whereas in the present case, there was clear-cut performance in pursuance of the agreement and transfer of the property. For all the above reasons, the Commissioner of Income-tax (Appeals) held that the capital gains in respect of the property was to be assessed in the assessment year 2006-07 and accordingly directed the Assessing Officer to issue notice under section 148 for that year." 6. Aggrieved by the order of the Commissioner of Income-tax (Appeals) on both issues, the assessee is in appeal before us. 7. Before us, learned counsel for the assessee Shri A. V. Raghuram referred to page 13 of the paper book wherein it was stated by the purchaser M/s. Viceroy Hotels Ltd. that it had received the possession of the house and the site on October 11, 2006. Learned counsel for the assesse....
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....parties' in favour of the vendor, they are joined as confirming parties in the said above sale deed." Referring to the above extract from the sale deed, learned counsel for the assessee submitted that the fact that the property was transferred at a later point of time is clearly evident. 9. The learned Departmental representative countered the arguments of learned counsel for the assessee stating that Sri Purushotham Agarwal, HUF and Vimalkumar Agarwal were merely confirming parties and hence, nothing can be inferred from their signatures on the sale deed, and hence their signatures on the sale deed are of no significance. He, therefore, submitted that nothing can be inferred therefore, from the clauses of the sale deed of M/s. Viceroy Hotels relied upon by the learned counsel for the assessee. The learned Departmental representative, further submitted that even the address given on the return filed by the assessee for the assessment year 2007-08, remained the same. 10. In the rejoinder, learned counsel for the assessee, referring to the contention of the assessee with regard to the address given in the return filed for the assessment year 2007-08, invited our attention to p....
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....sp; 8. The vendors have handed over the original authenticated title documents, link documents along with all other relevant documents, i.e., tax paid receipts, sanction plan, etc. to the purchaser." 12. The above clauses undisputedly confirm the fact that the possession of the property has been handed over to the purchaser on September 3, 2005. The evidences produced by the assessee, such as, filing of telephone bills and ration card etc. are not the conclusive material. The fact remains that the sale deed was executed on September 3, 2005 and consideration was also received in September, 2005. From the clauses of the sale deed dated September 3, 2005, it is clear that the possession was also handed over in the assessment year 2006-07 itself. Therefore, in our considered view, the Commissioner of Income-tax (Appeals) has rightly confirmed the action of the Assessing Officer in holding that the capital gain on the sale of the property was to be assessed in the assessment year 2006-07. We accordingly confirm the order of the Commissioner of Income-tax (Appeals) on this aspect and reject the grounds of the assessee on this issue. 13. Though certain arguments have been a....