TaxTMI 
TaxTMI 
2011 (1) TMI 1416
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....d power of attorney dated 21-11-2002 was executed. (3)That the CIT(A) has erred on facts and in law in ignoring the statement and affidavit given by Sh. Mukesh Kumar Agarwal in remand proceedings claiming that physical possession of the land in question was taken over by him on 21-11-2002. (4)That the CIT(A) has erred both on facts and in law in treating the agreement to sale as the date of transfer of the property and in ignoring the contents of registered power of attorney dated 21-11-2002. (5)That the CIT(A) has erred on facts and in law in not appreciating the legal position that the date of accrual of capital gain is the date when the transfer took place by executing a registered document and the title to the property does not pass to the vendee even though the vendee may be protected by section 53A of the transfer of the Property Act, especially when the transfer of possession of land is spelled out both in registered document and in the affidavit and statement recorded by the department of the possession and possesses. (6)That the appellant's craves to add or alter any other grounds of appeal as may be warranted." 3. Briefly stated,....
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....operty would be calculated without giving tax indexing will be chargeable to tax hence STCG. Learned Assessing Officer has calculated STCG at Rs. 18,85,000. Learned Assessing Officer has taken the cost as on 20-11-1999 at Rs. 4,40,000 as disclosed by the assessee. The assessee was aggrieved and filed appeal before the learned CIT(A). Learned CIT(A) followed suit and has confirmed this addition. Learned CIT(A) ignored the submission of the assessee that power of attorney holder Shri Mukesh Kumar Agarwal had confirmed the fact that he has taken the possession of property on 21-11-2002 because between the period from 5-9-2002 to 21-11-2002 on which the power of attorney was drafted until 21-11-2002 on which the power of attorney was registered by Registrar. He was making enquiries regarding status of this land on the ruling and compliances from Government Agencies and private agencies which could affect ownership of the property. Learned CIT(A) has opined that as per the power of attorney dated 5-9-2002 as has been recorded by the typist is the date on which Shri Mukesh Kumar Agarwal, the power of attorney holder, became absolute owner of the property although the power of attorney wa....
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.... land situated at Mauza Bainpur, comprised in Khasra No. 1636 to Shri Kalla Devi Estate Limited on 16-8-2002 through Power of Attorney and received sale consideration of Rs. 20 lakhs through cheque No. 139962, dated 16-8-2002 of HDFC Bank, Sanjay Place, Agra. He has also observed that although the assessee has mentioned that land is agricultural one but it has itself declared LTCG on it. So the nature of land is not in dispute. But he has taken the value of this land at Rs. 23,25,000 as per the circle rate applicable for stamp purposes, being Rs. 31 lakhs per hectre at the relevant time, as against Rs. 20 lakhs shown by the assessee-company. He has taken cost of the land at Rs. 4,40,000, by accepting purchase price as shown by the assessee-company, for which the property was purchased on 20-11-1999, inclusive of all ancillary expenses. According to him between 20-11-1999 and 16-8-2002, the time gap is less than 3 years (36 months) by few days, so the assessee is entitled only to Short Term Capital Gain (STCG) and not LTCG. Thus, he has calculated STCG at Rs. 18,85,000 and has taxed the same accordingly. 6. The learned CIT(A), directed the Assessing Officer, under section 250(4) ....
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.... 21-5-2003 Thus, the property was held by assessee only for a period of 2 years 9 months and 15 days i.e., less than 36 months. In view of above additions/disallowances were rightly and legally made, so the same deserves to be sustained." 7. After considering this report, which can be called as a first remand report, the learned CIT(A) again sought report from the Assessing Officer The learned Assessing Officer summoned both the panics to the sale of this land i.e., seller and the purchaser. Both parties appeared before him. Shri Mukesh Kumar Agarwal having power of attorney, Shri Kanti Prasad Agarwal, the buyer and Shri Rajeev Kumar, Director of the assessee-company, appeared before him on 6-10-2006. Their statements were recorded. In these statements they reiterated their old stand that the possession of this land was given/taken on 21-11-2002 and not on 5-9-2002. They also stated that they had completed certain formalities during the period between 5-9-2002 to 21-11-2002, like verification of ownership from revenue authorities/local bodies. But the Assessing Officer has submitted that they could not produce any documentary proof in this regard, so he was n....
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....is case, in the light of available evidences, contention of the parties and the reasonings given by the authorities in the light of other materials available on record. 11. First of all, it is found that the learned CIT(A) has given a finding contrary to the finding given by learned Assessing Officer with regard to date of alleged 'transfer'. The learned Assessing Officer has taken this date as 16-8-2002 (page 1 last para of Assessing Officer's order), whereas learned CIT(A) has taken this date as 5-9-2002. It seems learned Assessing Officer did not consider the factum of 'possession' to be an important factor in transfer of land. He has simply considered the date of 'payment' of consideration. As per Assessing Officer, the moment consideration is received, the 'transfer' is complete. As against this, learned CIT(A) has not considered even the payment of entire sale consideration relevant for "transfer", because as against 16-8-2002 as taken by Assessing Officer, he has taken it as 5-9-2002. It may be mentioned in point (ii) ibid, albeit he has observed that the entire sale consideration was received on 16-8-2002. 12. Insofar as conclusion ....
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.... witness the transaction contained in a given document, so that real intention and purport of the averments of the document can be known with the help of those independent witnesses. But in this case there is no dispute between the parties with regard to any date or of facts narrated in the document. They are clamouring to the level of crescendo that the possession of the land was taken and given only on 21-11-2002, and that the 'Power of Attorney" was only drafted on 5-9-2002 and no signatures of the parties were appended thereto on that date. One can understand that an assessee who is a party to this transaction can lie, supposedly, but why the other party should lie. Why the other party stand with the 2nd party of an agreement, is a question to be deeply mused over, while giving meaning to the document in question. What benefit would be drawn by the purchaser in standing with the assessee? Why learned Assessing Officer did not call the independent witness to find out the real truth, if he doubted the version of the parties to this agreement. 16. We will discuss the document in question, subsequently, but before that we may mention that whatever formalities were carried ou....
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....possession. The first requirement overlaps the second for a transfer may in all cases be made by a registered instrument. As per the transfer of property whose value is less than Rs. 100 there is no requirement of registration of instrument. The ld. A.R. has enclosed pages PB 1-2, wherein modalities of sales of immoveable properties in Uttar Pradesh have been mentioned. It is mentioned that in terms of section 54 of T.P. Act, as amended by Uttar Pradesh Act 2 of 1997, a contract of sale can be made only by registered instrument. The use of expression 'only' here indicates that under law contract to sale has got to be entered into by a registered instrument - Godhan v. Ram Billas AIR 1995 All 357. The Uttar Paradesh Selling of Property (Temporary Registration of Transfer) Act, requires permission to be taken by the vender by applying to the concerned authority, but such authority shall have discretion to grant or refuse the sanction, and it is immaterial that the agreement between the parties did not contain such terms as obliging the seller to take permission - Bishambhar Nath Agrawal v. Kishan Chand AIR 1998 All. 195. 20. But we are concerned with the term "transfer" un....
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....uired to be ascertained in the light of the given facts and the circumstances and the relevant evidences available on record. The Assessing Officer is taking the date of handing over of possession of the land as 5-9-2002. There is no dispute with regard to date of registration of the power of attorney which is 21-11-2002 and the date of registration of sale deed which is 21-5-2003. The contention of the assessee is that on 5-9-2002, the transfer of the land was not handed over. That if the power of attorney was only drafted on that and thereafter certain formalities which are required in the State of Uttar Pradesh for transfer of land, were to be carried out, and only then the possession could be transferred. 25. First of all let us examine the deed/document through which transfer took place. This document is being extracted, as it is, herein below :- 26. The power of attorney, a copy of which is enclosed with the record of this case, at P.B. Pages 3 to 5 is that document. It seems that this document was not meticulously examined by ld. Assessing Officer as well as by ld. CIT(A), may be because it is written in 'Devnagri Lipi'; the very heading of this document is "Mu....
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....the assessee. Therefore, even in the terms of section 2(47) of the Act read with section 53A of the T.P. Act, the possession of the land was handed over on 21-5-2003 and not before that. 28. We have also examined the copies of reply filed by Shri Mukesh Kumar Agarwal and Shri Rajiv Agarwal submitted under section 131 of the Act. We have also examined copy of remand report dated 24-8-2006 and reply of the assessee against this report. We have also examined confirmation filed by them. The statement of Shri Mukesh Agarwal recorded under section 131 by the Assessing Officer is the most relevant one. In this statement he has confirmed the claim of the assessee. Thus, the date, for income-tax purposes, of transfer of possession has to be taken as 21-11-2002 and not 5-9-2002. 29. It can also be mentioned that when a document is registered it has to be signed as well as thumb-impressed in the presence of the S. Registrar and the witnesses. On this document of Power of Attorney only one signature of each party is found, which goes to establish that on the date of draft i.e., 5-9-2002 no signature or thumb-impression was marked of the parties, otherwise there would have been double sig....
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....the Agreement to Sell 'ATS', for short) and the GPOA, were executed on stamp paper (purchased on or before 5-9-2002), with cross reference; the ATS (the relevant part of which stands reproduced by the ld. CIT(A) at page 9 of his order', referring to the GPOA as dated 5-9-2002, i.e., of even date. The GPOA was subsequently registered by the parties with the office of the Registrar on 21-11-2002. As the GPOA stood registered on that date, which fell beyond 36 months since the date of purchase, which stood completed on 20-11-2002, the assessee returned the gain arising on the transfer of its said capital asset as a long-term capital gain (LTCG), claiming the benefit of indexation in respect of its cost of acquisition, working its deemed value at Rs. 5,74,550. The Assessing Officer (Assessing Officer), however. was of the view that the transfer date was the date of execution of the GPOA and not that of its subsequent registration, so that the said gain was assessable as a short- term capital gain (STCG) and, resultantly, the assessee not entitled to the benefit of indexation of its cost in the computation of the income chargeable to tax. Also, the capital asset transferred ....
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....fined under section 2(47)(v) of the Act (by that date), and the registration of the said document or the transaction is irrelevant for the purpose; (d)that the assessee has not also rebutted the A.O's adopted circle rate (of Rs. 31 lakhs per square hector), which led to the sale consideration being deemed at Rs. 23.25 lakhs. He, therefore, confirmed the computation of the gain as short-term at Rs. 18.85 lakhs. 4. Before us, like contentions stood raised by either side. During hearing, it was specifically questioned by the Bench to the ld. Authorized Representative (A.R.) as to how the GPOA, the document clearly stating the date of its execution as 5-9-2002, could be said to have been actually signed and executed by the parties on that date, i.e., in the absence of the signatories putting the date of signing (or '21-11-2002', i.e., as claimed) below their signatures, or any other evidence in support of their claim, i.e., assuming that the document stood signed on that date (21-11-2002) and not on 5-9-2002. To this, he could not offer any cogent answer though he pointed to the date of registration of the document, i.e., as appearing on the backside of page ....
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.... ld. Brother for the relevant provisions). So however, as the issue of its registration stands also raised I deem it pertinent to state that the registration of the said document would be relevant only if it (the GPOA) has effect thereupon. This is as the matter boils down to whether, thereby, Shri Mukesh Agarwal, S/o. Shri Kanta Prasad Agarwal, M.D., Kela Devi Estate Limited (the proposed buyer), stood constituted as a valid attorney by the assessee on its execution or was so only on its subsequent registration. POA is not a document required to be compulsorily registered under the Registration Act, 1908, so that it shall have force notwithstanding its non-registration, especially where it is stated to be revocable, and bears no mention of consideration, which is one of the essential ingredient of a contract. Even otherwise, the registration, where compulsory, only precludes the admissibility of the relevant document in evidence before a court of law, i.e., in case of a dispute between the parties, while there is none in the present case; the only issue being the date of its execution, and that too between the assessee, whose stand is supported by the contracting party, and the Re....
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....rposes; it only bestowing the legal title thereto. Besides, such companies/entities usually cause the execution of the sale deed in favour of third parties, the ultimate buyer of the land in the undeveloped/under-developed/developed state, as the case may be saving stamp duty cost, a transaction cost having a direct bearing and impact on its profits; the property only fetching its prevalent market rate for them. 5.5 Both the documents, i.e., the ATS and the GPOA, which is in favour of the son of the M.D. of the payer-company, ostensibly a director therein, stand, as it appears, written on the same date, i.e., 5-9-2002, purchasing the stamp paper in the name of the payer-company, with the former (ATS) being executed, undeniably, on that date (5-9-2002). As such, it is inconceivable that the GPOA was not executed on that date. Would that mean, therefore, that while the proposed buyer performs its part of contract, the assessee-transferor did not perform any part of its contract? Or, that, the proposed transferee would not insist on the assessee, the transferor, also to perform its part of contract'. This is more so as the two documents, the ATS and the GPOA, only appear to hav....
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.... extent required up to that date, by the other; the manner of signatures; absence of any purpose, given the nature of the transaction and the execution of ATS, etc. The subsequent registration, an event or incident that the GPOA does not even postulate, i.e., per its terms, is besides the issue. The same only reaffirms the stand of the parties, i.e., vis-a-vis the deal/transaction. 5.6 In view of the aforesaid reasons, as also complete non-substantiation of its stated case (also refer para 5.8 of this order), the confirmation of the contracting parties to the contrary would be of no moment. 5.7 The next question incidental to the issue is the grant of possession of land by the assessee. I regard it as incidental as in the facts of the case the assessee and the revenue are in agreement, and only rightly so, that the same (the issue) is that of the execution of the GPOA, which is definitely an issue, and stands already dealt with hereinbefore. However, this aspect having been examined independently by the ld. CIT(A) and my ld. Brother, a brief discussion thereon would be in order. The GPOA confers all the right to the POA, including the right to give possession to another, i.e.....
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.... on its wholesome reading, including the terms and conditions set up therein, and not its title or the nomenclature given thereto by the parties. A holistic reading of the documents, i.e., including the ATS, so as to understand the transaction; the GPOA being granted in lieu of or only on receipt of the sale consideration, conferring all the rights of absolute ownership, followed by its registration, and the inference of its being irrevocable becomes unmistakable (kindly also refer para 5.5 of the order). As for its being stated as 'revocable in the title, the same could presumably be to save on some transaction cost, as registration, stamp duty, et., al. I rest my opinion in the matter by stating it to be of no consequence. Revocable or otherwise, the parties have regarded it as a being valid for the purpose of 'transfer'; the only issue as discerned being the time of its execution and thus operation. 5.10 Finally, I deal with the aspect of the application of section 50C. The assessee has not pressed the ground before us and has also not adduced any evidence before the authorities below to make out a case for challenging the adoption of the said circle rate of Rs. 3....
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....ong-term capital gain. Additional Question being referred by Accountant Member : (ii)Whether, in the facts and the circumstances of the case, and particularly considering the assessee's Ground No. 1 impugning the total addition sustained, including that on account of application of section 50C of the Income-tax Act, 1961, which is admittedly not in dispute, the capital gain, whether short-term or long-term, is to be computed adopting the sale consideration as deemed under section 50C (at Rs. 23,25,000) or as returned by the assessee (at Rs. 20 lakhs)? THIRD MEMBER ORDER P.K. Bansal, Accountant Member [As a Third Member]. - Questions referred to by the Hon'ble President under section 255(4) of the Income-tax Act, 1961 ('the Act' hereinafter) on the difference of opinion between the learned Accountant Member (A.M.) and the learned Judicial Member (J.M.) read as follows :- "(i)Whether in the given facts and circumstances of the case, the transfer of agricultural land in question took place on 5-9-2002 attracting short-term capital gain or it took place on 21-11-2002 attracting long-term capital gain. Additional question being r....
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....000 instead of Rs. 20,00,000 and thus as a Short Term Capital Gain (STCG) Rs. 18,85,000. When the matter went before the CIT(A), the CIT(A) called for the remand report from the Assessing Officer who submitted the same in the following manner :- "It is submitted that it appears in appeal the assessee has been disputing the fact of sale of land shown by it. But the assessee legally cannot do so because it itself had declared in the return that the property was sold in the relevant year (computation filed along with return and para 8 of reply of assessee dated 14-2-2006 may kindly be seen). Even otherwise, as the sale consideration and possession of property along with all rights were transferred on 5-9-2002 (Agreement of power of attorney may be seen), so the transfer of capital asset was complete on that date itself as per provisions of section 2(47). It is settled law that even if the documents are not registered but the following conditions of section 53A of the Transfer of Property Act are satisfied, ownership in the property is "transferred" (a)There should be a contract in writing; (b)The transferee has paid consideration or is willing to perform his....
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....006. But the desired information was not furnished by the enter parties consequently, their statements on oath were recorded on the same day on the various events including the date of agreement for sale and the date of handing over of possession of the property. But they could not tell why statutory formalities were required to be done after agreement nor could they mention even a single statutory formality which they had done during the period 5-9-2002 to the date of registration i.e., 21-11-2002. Though in their statement they have stated to have done some formalities such as going to local bodies for verification of ownership but no evidence has been furnished by them even to support the above statement or any other content of the statement. On considering the non furnishing of the required details, complete ignorance/failure to state the details of statutory formalities allegedly being claimed to have been done during the said period, it is clearly established that no formalities-statutory or otherwise were done by assessee or the buyer and getting registration done on 21-11-2003 was only on LTCG in respect of a transaction which was in fact a case of STCG." 6. In ....
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.... The date of execution of the power of attorney is relevant. Registration of the power of attorney is compulsory and can take place subsequent to the execution of the document. The registration once done will be effective from the date of execution of the document. Thus, he contended that the ld. A.M. has correctly confirmed the order of the Assessing Officer. 8. The ld. A.R., on the other hand, made the following written synopsis :- "The following questions have been referred for getting the Hon'ble Third Member decision as per provisions of section 255(4) of the Income-tax Act : (1)Whether in the given facts and circumstances of the case, the transfer of agricultural land in question took place on 5-9-2002 attracting short-term capital gain or it took place on 21-11-2002 attracting long-term capital gain. (2)Whether, in the facts and the circumstances of the case, and particularly considering the assessee's Ground No. 1 impugning the total addition sustained, including that on account of application of section 50C of the Income-tax Act, 1961, which is admittedly not in dispute, the capital gain, whether short-term or long-term, is to be compu....
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....929 by the Transfer of Property (Amendment) Act 1929, and imports into India a modified form of the enquiry of part-performance as developed in England in Maddison v. Alderson. The enactment of the section sets at rest the considerable uncertainty prevailing in Indian law, as can be seen by three decisions of the Privy Council. Recently, para 4 of section 53A has been amended by section 10 of the Registration and Other Related Laws (Amendment) Act, 2001 (Act 48 of 2001) whereby the words 'the contract, though required to be registered, has not been registered, or' has been omitted. (2) Scope - So far applicability of section 53A of the TP Act is concerned, what is to be seen is that the section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee, if the proposed transferee satisfied other conditions of section 53A. That protection is available as a shield, only against the transferor, the proposed vendor would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. However, that has nothing....
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...., Director of the assessee company, appeared before him on 6-10-2006. Their statements were recorded. In these statements they reiterated their old stand that the possession of this land was given/taken on 21-11-2002 and not on 5-9-2002. They also stated that they had completed certain formalities during the period between 5-9-2002 to 21-11-2002, like verification of ownership from revenue authorities/local bodies. The copy of replies furnished in compliance to summons before the A. O. by the power of attorney holder, the seller who gave the power of attorney are placed as per paper book pp.38 and 39 and further reply filed before the CIT (Appeals) in the remand proceedings is placed as per paper book pg. No. 34. The department did not place any evidence to rebut the contents of the evidence brought on record by the Assessing Officer in the remand proceedings i.e., the specific reply from purchaser and seller placed as per paper book pages 34, 38 & 39 which are part of paper book placed before the Hon'ble LT.A.T. and discussed by the Hon'ble Judicial Member. When transferor and transferee both have specifically denied transfer of possession of the land before the d....
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....dence, it cannot be said on mere presumption that the possession was handed over or taken over on 5-9-2002 i.e., the date when the draft of power of attorney was only prepared as specific mention made in the document itself which remained unsigned till it was presented before the registering authorities with the signatures and thumb impression. The Hon'ble Judicial Member has rightly observed in para 18 whereby it has been mentioned that the affidavit as well as statement on oath of Shri Mukesh Kumar Agarwal are definitely supporting evidence which can not be easily brushed aside by the department. (P.B. Pp. 34, 38 & 39). In para 19 the Hon'ble Judicial Member has an occasion to analyse the law as per the Transfer of the Property Act and the conclusion drawn by him are in accordance with Transfer of Property Act as applicable in the Uttar Pradesh. In para 21 the Hon'ble Judicial Member has made a detailed analysis of section 2(47) i.e., the meaning of transfer in accordance with Income-tax Act, whereby the allowing of the possession of the immovable property is a precondition. The Hon'ble Judicial Member in para 22 has further ana....
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....d as well as thumb-impressed in the presence of the S. Registrar and the witnesses. On this document of Power of Attorney only one signature of each party is found, which goes to establish that on the date of daft i.e., 5-9-2002 no signature or thumb-impression was marked of the parties, otherwise there would have been double signature of each one on this document. Thus it is proved that transfer did not take place on 5-9-2002 and the Hon'ble Judicial Member has under the law and on the facts of the case has very rightly held that transfer took place on the date when Power of Attorney was registered and the transaction attracted long term capital Gain. " 9. I have carefully considered the rival submissions along with the orders of both the ld. Members. The relevant question before me to be decided is that on the facts of the case, as narrated above, whether transfer has taken place on 5-9-2002 or 21-11-2002. If the transfer has taken place on 5-9-2002, the capital gain arising on the sale of the land will be regarded to be Short Term Capital Gain but in case the transfer ought to have taken place on 21-11-2002 when the power of attorney was registered, the capital g....
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.... gins by adopting devices such as the enjoyment of property in pursuance of power of attorney or part performance of a contract of sale was sought to be restricted by introducing the two clauses viz., (v ) and (vi) in section 2(47). A reference to the CBDT's Circular No. 495, dated 22nd September, 1987, 67 CTR (St.) 1 provides an insight into the background and objective of introducing the said clauses. "11.1 The existing definition of the word 'transfer' in section 2(47) does not include transfer of certain rights accruing to a purchaser, by way of becoming a member of or acquiring shares in a co-operative society, company, or AOP or by way of any agreement or any arrangement whereby such person acquires any right in any building which is either being constructed or which is to be constructed. Transactions, of the nature referred to above are not required to be registered under the Registration Act, 1908. Such arrangements confer the privileges of ownership without transfer of title in the building and are a common mode of acquiring flats particularly in multi-storeyed constructions in big cities. The definition also does not cover cases where possession is al....
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.... instrument of transfer, that the transfer has not been completed in manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract." 13. From the reading of section 53A it is apparent that for the applicability of section 53A of the Transfer of Property Act following must be complied with :- (a)There should be a contract for consideration; (b)It should be in writing; (c)It should be signed by the transferor; (d)It should pertain to transfer of immovable property; (e)The transferee should have taken possession of the property; (f)Lastly, the transferee should be ready and willing to perform his part of the contract. The Scope of expression "has performed or is willing to perform" has be....
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....erms necessary to constitute the transfer can be ascertained with reasonable certainty. These are prerequisites to invoke the equitable doctrine of part performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract. The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract and the acts of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract." 15. There is no doubt that the agreement to sell/transfer the entire right, title and interest of the owners for a consideration specified in the agreement and in accordance with the terms thereof, it fulfils the condition of a contract for consideration falling within the scope of section 53A of the Transfer of Property Act. The ld. J.M., as has been pointed out in the facts as narrated by me, has incorre....
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....ransaction that gives rise to the event of allowing the contractee to enter into possession that matters. The agreement/contract, on its own may not allow possession to be taken instantaneously, but it may spell out a transaction by which the possession will pass at the future point of time. Under the terms of a contract, normally, a series of acts or transaction that would at one point of time or the other take place in furtherance of the contract will be recorded. What is contemplated by section 2(47)(v) is a transaction which has direct and immediate bearing on allowing the possession to be taken in part performance of the contract of transfer. It is at that point of time that the deemed transfer will take place. Entering into the agreement is a transaction in a broad sense but when the agreement envisages an event or act on the happening or doing of which alone the possession is allowed to be taken in part performance of the contract, the transaction of the nature contemplated by clause (v) cannot be said to have occurred before that date. The agreement may provide for immediate transfer of possession of the immovable property contracted to be sold. That may happen where the tr....
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....n made on 5-9-2002 when the power of attorney was executed. The statement that recorded under section 131, in my opinion, will not affect the evidence on record in the form of agreement to sell and the power of attorney executed by the assessee. The statement can be after thought. In income-tax proceedings, oral evidences are not so relevant as the written evidences. Oral evidence are, no doubt, have evidentiary value so far criminal proceedings are concerned, but in Income-tax proceedings the oral evidences have to be looked into when written evidences are not available on record and oral evidence can be accepted only when they are corroborated by the written evidences. The ld. A.R. even though submitted the written submission but has not brought on record any evidence in writing which may prove that the possession of the land has not been given when the agreement to sell and the power of attorney was executed. Whenever an immovable property is sold and the whole of the consideration is paid, generally all the three documents, i.e., agreement to sell, general power of attorney as well as possession letter, are executed. I have specifically asked the ld. A.R. about the execution of....