TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 474
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....61/-. 3. Brief facts of the case are that the assessee is an individual, who had sold a flat vide registered Deed of Conveyance dated 26/27.12.2011. The sale deed has been executed in pursuance of an agreement to sale which has been executed on 16.09.2011 and out of the consideration of Rs. 30 lacs, Rs. 1 lac has been received by the assessee by way of advance/earnest money when the agreement to sale has been executed and a new residential flat has been purchased by the assessee on 04.10.2010. The AO has taken the date of registration of the property sold as date of transfer and since the new property has been purchased on 04.10.2010, therefore, the AO has held that since the new property has not been purchased within one year from the dat....
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.... agreement to sale, a right has been created in favour of the buyer of the property and certain right in respect of the old residential house which the assessee enjoyed had been extinguished and, therefore, the agreement dated 16.09.2011 ought to have been considered as the date of transfer and not the registration date 27.12.2011 as taken by the AO/Ld. CIT(A). For the said proposition, the Ld. AR cited the decision of the Hon'ble Supreme Court in Sanjiv Lal in Civil Appeal No. 5899-5900 of 2014 (SC) which is placed from pages 1 to 16 of the paper book (PB). 5. We note that in order to avail the benefit of sec. 54 of the Act, one must purchase a residential house/new asset within one year before or two years after the date on which transfe....
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....ation the facts of the present case we note that the assessee executed an agreement to sell for Rs. 30 lacs consideration in respect of its capital asset on 16.09.2011 for transferring the old residential house/original asset in question and a sum of Rs. 1 lac in cheque was received as advance consideration though encashed only on 21.11.2011, we note that the said cheque has not bounced/dishonoured. So, as per the ratio decidendi of the Hon'ble Supreme Court decision in Sanjeev Lal, supra, we note that in the light of the aforesaid facts and in view of the definition of the term 'transfer' it can be concluded that some right in respect of capital asset (old asset) in question had been transferred in favour of the vendee and, therefore, some....
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....s been disputed by the AO/Ld. CIT(A) the purchase of the property is well within one year from the date of transfer as per sec. 2(47) of the Act, therefore, we allow the appeal of the assessee. We also note that the Ld. CIT(A) erred in understanding the ratio decidendi laid by the Hon'ble Supreme Court in Sanjeev Lal, supra and, therefore, he erred in passing the impugned order, so we set aside the order of the Ld. CIT(A) and we allow the appeal of the assessee and direct AO to grant exemption u/s. 54 of the Act in accordance to law. 7. Before we part for the sake of completeness, we note that the agreement to sell is an unregistered documents and a question may arise as to whether the said unregistered document is admissible in evidence i....
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....tract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. 12. Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited1, (2008) 8 SCC 564 this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189:- "......The High Courts of Calcutta, Bombay,....
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....e aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance. ............... 16. The argument of learned counsel for the respondents with regard to Section 3(b) of 1963 Act is noted to be rejected. We fail to understand how the said provision helps the respondents as the said provision provides that nothing in 1963 Act shall be deemed to affect the operation of 1908 Act, on documents. By admission of an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, none of the provisions of 1908 Act is affected; rather court acts in consonance with pro....