TaxTMI 
TaxTMI 
2007 (6) TMI 167
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....f law:- "Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that there was no transfer of property by the assessee to M/s.Kalpaga Builders on 10.02.1995, i.e., within the block period ending 20.08.1998 within the meaning of Section 2(47)(v) of the Income-tax Act and no capital gains were assessable for the block period?" 2. The facts leading to the above substantial question of law are as under: 3. The assessee is an individual. There was a raid in the premises of M/s.Kalpaga Builders and its partners on 20.08.1998. The assessee is the mother-in-law of the partners of the said partnership firm. During the raid, it was noticed that the assessee was the ....
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....8BD issued by the Revenue. The Assessing Officer completed the Block Assessment for the said block period under Section 158BA of the Act r/w Section 158BD. The computation under the Block Assessment are as follows:- Asst year 1995-96 Rs.22,02,723 Asst year 1996-97 Rs. 27,718 Asst year 1997-98 Rs. 79,768 TOTAL INCOME Rs.23,10,209 4. The Assessing Officer computed the short term capital and long term capital gains in the block period for the assessment year 1995-96 at Rs.7,73,413/- and Rs.14,29,310/-, thus totalling to Rs.22,02,723/- and the same was added in the Block Assessment. Aggrieved by the order, the assessee filed an appeal to the Commissioner ....
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....appearing for the assessee submitted that once the ingredients of Section 53A of the Transfer of Property Act is not satisfied, Section 2(47)(v) of the Income-tax Act cannot be invoked. It is further submitted that there is no written agreement between the assessee and the builder, which is the basic requirement for invoking the provision of Section 53A of the Transfer of Property Act. It is also further submitted that the assessee is yet to receive the amount and the assessee had shown the amount only as receivables and there is no actual receipt of the amount. Therefore, the question of transfer followed by capital gain will not arise for this block assessment period. Hence, the order passed by the Tribunal is in c....
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....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 or of the part performance thereof." 8. In the case of Nathulal Vs. Phoolchand, AIR 1970 SC 546, the Apex Court considered the scope of Section 53A of the Transfer of Property Act and held as follows (page 548) :- "(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) that the transferee has, in part performance of the contract, taken possession of the property....