TaxTMI 
TaxTMI 
2018 (1) TMI 10
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....ng the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to section 53A of the Transfer of Property Act, 1882; b) that the capital asset i.e. land was transferred on 21.8.2003 through registered agreement within the meaning of section 2(47)(v) of Income tax Act, 1961. c) that the AO has not afforded any opportunity to the appellant to cross examine the power attorney holder whose statement has been recorded by the AO on the back of the appellant despite specific request made and also to cross examine the purchaser of the land. 3. That the learned CIT (A)-l, Agra has erred in law and on facts in holding that the property of the assesses is considered to be transferred in Asstt. Year 2007-08 instead A.Y. 2004-05 and confirming the addition made by the AO at Rs. 4,91,126/-and that too without giving the benefit of cost inflation index. 4. That the learned CIT (A)-l, Agra has erred in law and on facts in observing/holding in para 2 of page No. 12 of appellate order that "As per the provisions of section 2(47) of Income tax Act, 1961, the transfer of property would be ....
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.... Please refer to your notices u/s 143(2) and u/s 142(1) dated 07/10/2014 and 1.12.2014 fixing the hearing on 08.12.2014. In this connection, it is submitted that your notice dated 1.12.2014 has been delivered to the assessee on 09.12.2014 and hence the assessee could not made compliance on the date fixed. It is further submitted that the photo stat copy of the statement recorded on 1.10.2014 of Sri Anil Kumar Kaushik attorney holder is not certified by your good-self although the assessee deposited copying fee of Rs. 100/- as per your directions and copy of challan sent to you. 2 However, the assessee submitted her explanation as underi) The assessee has already submitted that your notice under section 148 is illegal, invalid and baseless because: (a) there is no escapement of income as contemplated in the reasons so recorded by your predecessor in office. The assessee has already submitted before you that the assessee received 98% sale consideration from the purchaser on the date of agreement i.e. on 21.8.2003 leaving a meager/notional amount of Rs. 10,000/- and the purchaser was allowed the possession of land. A power of attorney was also executed on t....
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.... in the case of Smt. Krishna Anand w/o Sri Dinesh Kumar co-owner for the assessment year under consideration? a) If yes, the date of issue of notice under section 148. b) If not, the reasons for not initiating action under section 147. The requisite information has not been furnished on the ground that Smt. Krishna Anand is not within the jurisdiction of Income tax Officer-3(4), Mathura, therefore, no information can be furnished. AO has neither forwarded petition of the assessee to the concerned AO for furnishing the required information nor informed the date, if any, on which he passed on intimation for initiating action u/s 147/148 against the lady. ii) You raised following doubts on the agreement dated 21.08.2003 and sale deed dated 21.4.2006: a) 'It is noticed that agreement dated 21.8.2003 was valid for one year only'. In this connection, it is submitted that when there is no objection on either side i.e. by the sellers and purchaser the validity of the said agreement cannot be challenged by third party. This is because the sellers received almost full amount of consideration at the time of agreement and the purchaser was allow....
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....ership i.e. MALIKANA HAK will naturally pass when sale deed is executed in somebody favour. The assessee has been stating repeatedly before your honour that the transferee was allowed possession of the land by the assessee and his coowner on the same day when 98% sale consideration was received i.e. date of agreement and the date on which power of attorney was executed in favour of Sri Anil Kumar Kaushtk as per instructions of the transferee. Taking into account the legislative changes and the concept of ownership of immovable property coupled with the need for settling the judicial controversies which existed earlier in regard to disputes on beneficial ownership and registered ownership of property, the Supreme Court had taken the view that the legislative changes brought about in 1987 were only clarificatory in nature and, hence, retrospectively applicable and, therefore, took the view in CIT vs. Podar Cement (P) Ltd. (1997) 141 CTR (SC) 67: (1997) 226 ITR 625 (SC): TC S40.3564 that one need not be the registered owner of the property to be regarded as the owner thereof and that even in the absence of execution of conveyance deed and its registration, the beneficial owner must be....
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....of the property, but the conveyance is either not executed or if executed it is not registered. In such cases the transferor is debarred from agitating his title to the property against the purchaser. In assessee's case, the assessee along with her co-owner Smt. Krishna Anand entered into an agreement with Sri Suresh Chand Garg for sale of plot of land measuring 1234 sq. meter situated at Mauja Anyor Distt. Mathura on 21.8.2003 relevant to the year 20034)4 for a sum of Rs. 4,25,000/- and received advance of Rs. 4,15,000/- i.e. 98% of the sale consideration. This agreement was registered with the Dy. Registrar, Mathura and stamps duty of Rs. 17000/- was paid. The assessee has already submitted before you that the assessee received 98% money from the purchaser on the date of agreement i.e. on 21.8.2003 leaving a meager/notional amount of Rs. 10,000/- and the purchaser was allowed possession of land. A power of attorney was executed on the same day in favour of third party i.e. Sri Anil Kumar Kaushik as per instructions of the purchaser so that no problem in execution of sale deed may arise to the purchaser. The case of assessee is covered within the definition of 'transfer1 a....
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....isions of section 2(47(v) of Income tax Act, 1961. It may, however, be submitted that It is common knowledge when a person gives full payment of consideration i.e. 98% as to why he will not ask for possession and that too for continuous 3 years ? Your attention is again invited to page no 9 of the sale deed wherein it has been written 'Beche Gaye Plot Bhukhand Par Kharidar Ka Bakai Kabja Va Kabja Malikana Apne Saman Pura Kara Diya' This clearly indicates that me possession of land was given before the execution of sale deed i.e. at the time of agreement and on execution of sale deed the purchaser has been given registered possession of land like sellers i.e. Vakai Kabja. It is, however, submitted if you still intend to apply the statement of the attorney holder against the assessee; the assessee may kindly be allowed to cross examine Anil Kumar Kaushik before completing the assessment. You are also requested to summon the transferee Sri Suresh Cnand Garg tor examination on oath and allow the assessee to cross examine him. The assessee is ready to deposit the diet money in this connection. The assessee may be informed about the amount of diet money to the deposited by her. ....