TaxTMI 
TaxTMI 
2019 (2) TMI 702
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Transfer of Property Act. The assessment order of the AO and appeal order of the Ld. CIT(A) be quashed. 2) On the facts and the circumstances of the case and in law the Lower Court in the proceedings filed by the appellant granted Permanent Injunction and restraining the purchasers (Defendants) creating any third party interest till the appellant herein receives the full consideration. This proves beyond doubt that the appellant-assessee did not get the full consideration which is sine-qua-non for transfer of immovable property. No LTCG arose during the year or in any subsequent year and LTCG is not taxable in the absence of the transfer of the subject land. 3) On the facts and the circumstances of the case and in law the full consideration settled between the parties for transfer of land was Rs. 55,18,400/- which was said to have been paid by Post Dated cheques realizable on those dates. The said cheques are still in the possession of the assessee. In view of this and for want of non-receipt of the full consideration there was no transfer by way of handing over possession to the purchasers. Both the authorities bellow were not justified to hold and confirm that the LTCG was....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... pleaded that transfer could not be considered only on the basis of agreement registered because neither possession was transferred nor consideration was received in respect of the impugned land. The Assessing Officer noticed that the Index-II and 7/12 extract of the land submitted by the assessee shows the property registered in the name of Sai Properties, therefore, the property had been transferred to Sai Properties. The Assessing Officer also considered the order of the Jt. Civil Judge (Senior Division) and held that the land in question stands within the defition of the term 'transfer' as envisaged in the provisions of section 2(47) of the Act, therefore, attracts long term capital gains. The Assessing Officer rejected various contentions raised by assessee holding it to be part performance in view of provisions of section 53A of Transfer of Property Act and held the assessee liable to pay tax on long term capital gains on his share of Rs. 55,18,400/-. 6. The CIT(A) after appreciating the facts of case held as under:- "5.3.3 It is not disputed that a sale deed was executed in respect of the property at Mundwa, by the appellant along with other 13 co-owners on 16/09/2010 for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....do not find any merit in the contention of the appellant that there was no transfer of capital asset u/s. 2(14) of the Act and the assessee was not liable to pay the capital gains tax on such sale of the land. Accordingly, no interference in the assessment order passed by the AO is called for. The AO is however directed to compute long term capital gains after allowing the appellant the cost of indexation of the property so sold. The addition made on account of long term capital gains is hereby confirmed subject to allowing of cost indexation. Ground nos. 1 (b) to (f) & (h), 2 & 3 are accordingly dismissed." 7. Shri M.K. Kulkarni, the learned Authorized Representative appeared on behalf of assessee and Shri Pankaj Garg, the learned Departmental Representative appeared on behalf of Revenue and put forward their contentions. 8. We have heard the rival contentions and perused the record. For adjudicating the issue raised, appreciation of peculiar facts of case are necessary, which are as under:- "The impugned sale deed was registered on 16-Sep-2010 in disputed circumstances, subsequent to which the purported buyer, Mr. Sanjay Sakharam Kamble, has not paid the total consideration d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oyabin, Bajara, etc. and pik pani also reflect the same. 6. The appeal filed by the Lonkar family in Civil Application No.2796 of 2015 was admitted vide order dated 28.08.2015, copy of which is placed at pages 61 & 62 of Paper Book. 7. The cross objections filed by purchasers in First Appeal No.1192 of 2015, in which purchasers clearly admits that they are ready to pay consideration to the assessee. However, also contends that purchasers were put in physical possession of the said property. 8. The assessee claims that possession of immovable property has not been parted with, till date as it has not received consideration against purported sale transaction." 9. From the perusal of above said facts, it is clear that though an agreement was entered into between the parties on 16.09.2010 which was also registered with the authorities, but admittedly total consideration was not paid to the assessee as the cheques which were handed over by the purchaser, were stopped for payment. The dispute arose between the parties, wherein the sellers i.e. assessee and his family filed an Injunction against the purchaser restraining him from creating any third party interest in the suit proper....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the facts of the case before us, though there is a contract in writing between the parties but there is dispute between the parties as to the possession of the said property, wherein the transferor claims that possession has not been given and the transferee claims that the possession has been given but the said possession was subject to encashment of cheques which were issued by the transferee. Since the transferee had stopped payment of cheques issued by him, then the parties approached the Court to decide differences arising between them and the matter is pending before the Hon'ble High Court of Bombay in this regard. In such scenario, it cannot be said that part performance of the contract has been completed. 12. The Hon'ble Apex Court in Civil Appeal No.15619 of 2017 in CIT Vs. Balbir Singh Maini and bunch of other appeals arising from the order of Hon'ble High Court of Punjab & Haryana (2015) 123 DTR 49 (P&H) has deliberated upon the relevant sections i.e. section 53A of the Transfer of Property Act and sections 2(47), 45 and 48 of the Income Tax Act and also took note of the provisions of section 2(47)(vi) of the Act and vide para 27 held that the income from capital ga....