TaxTMI 
TaxTMI 
2018 (6) TMI 1542
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....ertaining to assessment year 2012-13. ITA No. 5805/DEL/2015 is appeal by a different assessee preferred against the order of the ld. CIT(A)-24, New Delhi dated 28.08.2015 pertaining to assessment year 2012-13. Since common issues are involved in these three appeals, they were heard together and are being disposed off by this common order for the sake of convenience and brevity. 2. Common facts in all these appeals relate to the alleged transfer of ancestral property situated at 7/5283, Block-D, Krishna Nagar, Karol Bagh New Delhi. Facts of the case are that the assessee Shri Shailender Kumar Gautam had 30% share in the ancestral property. The other two co-owners were Smt Pushpa Gautam and Vishvajit Gautam having share of 45 % and 25 % resp....
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....orfeited. The main contention of the assessee is that there was no sale of any property during the year under consideration. The Assessing Officer was of the firm belief that the co-owners were to receive balance amount of Rs. 1.17 crores after adjusting 2.48 crores seized from Shri Mohit Mittal. Accordingly, the Assessing Officer computed the assessee Shri Shailender Gautam's share @ 30% and made an addition of Rs. 35.10 lakhs. 5. The assessee carried the matter before the ld. CIT(A) and pleaded that the amount of Rs. 1.17 crores was never received by the assessee. The ld. CIT(A) was convinced with the contention of the assessee and directed the Assessing Officer to delete the addition of Rs. 35.10 lakhs in the hands of the assessee. 6. ....
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....e in such word from which the terms necessary to constitute transfer must be ascertained. 5. The transferee must in part performance of the contract take possession of the property, or in part thereof. 6. The transferee must have done some act in furtherance of the contract 7. The transferee must have perform or be willing to perform his part of the contract." 10. On the aforesaid preconditions the ld. CIT(A) examined the facts of the case in hand by analyzing the following chart: S.No. Date Event 1. 09.09.2011 Signing of agreement between the transferors and transferee. 2. 09.09.2011 Advance payment made by transferee Rs. 40,00,000/- by cheque Rs. 85,00,000/- by cash 3. 11.01.2012 Payment m....
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....001, if an agreement, like the JDA in the present case, is not registered, then it shall have no effect in law for the purposes of Section 53A. In short, there is no agreement in the eyes of law which can be enforced under Section 53A of the Transfer of Property Act. This being the case, we are of the view that the High Court was right in stating that in order to qualify as a "transfer" of a capital asset under Section 2(47)(v) of the Act, there must be a "contract" which can be enforced in law under Section 53A of the Transfer of Property Act. A reading of Section 17(1A) and Section 49 of the Registration Act shows that in the eyes of law, there is no contract which can be taken cognizance of, for the purpose specified in Section 53A. The ....
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....other questions decided by the High Court, namely, whether under the JDA possession was or was not taken; whether only a licence was granted to develop the property; and whether the developers were or were not ready and willing to carry out their part of the bargain. " 13. The ld. DR has strongly objected to the reliance of the aforesaid judgment by the Hon'ble Supreme Court by stating that this decision was in the context of development agreement where part of the property was to be returned to the buyer after construction. The ld. DR continued by stating that in the case in hand, the handing over of the possession to the buyer was permanent and the assessee had no right over the property once it was handed over. 14. Before proceedin....
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....rform his part of the contract. Facts on record show that Shri Mohit Mittal was not willing to perform his part of the contract which culminated into litigation and FIR and writ petition before the Hon'ble Delhi High Court. The dispute was ultimately settled by cancellation of the agreement which means that the transfer never happened. No doubt, the settlement for cancellation of agreement took place on 17.01.2013 i.e. after the close of the assessment year under consideration. But this fact cannot be ignored while invoking the provisions of section 53A of the Transfer of Property Act when it was very much available before the Assessing Officer while framing the assessment order. The ITAT Mumbai Bench it the case of General Glass Compan....