2017 (12) TMI 871

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.... as assessee preferred an MA. 2. The appeal was filed with a delay of 430 days. Assessee has filed an affidavit explaining the reasons for delay. It was submitted that assessee is staying in Singapore and has signed as a confirming party in a land transaction entered by her brother, Shri Karim Nawaz Alladin and the documents were sent by courier to her. When she visited in the year 2008-09, her Chartered Accountant has asked her to file the return of income and subsequently she was not aware about any of the proceedings. It was further informed that the order was not served on her and she came to know when her bank account in RBS Bank was attached by the department in February, 2014. After the said event, she got in touch with her relative....

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....f assessment proceedings, assessee submitted that she has signed only as a consenting party at the instance of buyer and entire consideration was received by her brother, Shri Karim Nawaz Alladin. AO, however, did not agree and relied on the 'agreement of sale cum General Power of Attorney' (treating it as sale deed) to hold that assessee was stated to be owner of 1/3rd of the property and accordingly, invoking the provisions of Section 50C, determined the capital gains at Rs. 1,31,53,067/- in the hands of assessee, being 1/3rd of the capital gains in the transaction. 5. Before the Ld.CIT(A), assessee filed an affidavit from Shri Karim Nawaz Alladin owning up the total transaction and confirming that assessee did not receive any portion of....

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....g to the facts of the case submitted that assessee has signed on the 'agreement of sale cum GPA' on a disputed property. It was further submitted that she has not received any money and her brother has received some consideration which she is not aware. Referring to the agreement of sale, it was further submitted that it is only an agreement of sale but not a sale deed as mentioned by the AO and CIT(A). It was the contention that transfer by way of General Power of Attorney has not been approved by the Hon'ble Supreme Court and accordingly, the agreement of sale cum Irrevocable General Power of Attorney has no legal sanctity. Further, it was submitted that the property was in dispute in the proceedings before the 1st Additional Court, R....

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....e has title to the property and also without any sale deed of the transaction, the agreement of sale registered may not give rise to transfer of rights in a particular property, particularly in view of the fact that the Hon'ble Supreme Court did not approve the transfer of property by way of GPA. In these circumstances, the very basis for levy of capital gains is in doubt. However, the order of the court has been pronounced subsequently and there may be further contentions on the issue between the parties. Therefore, it is better if AO examines the issue afresh, in the light of the orders of the Hon'ble Court on the issue and also the fact is that it is only an agreement of sale not a sale deed. 10. Apart from the legality of the t....