TaxTMI 
TaxTMI 
2019 (8) TMI 180
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....hat those decisions are not directly on the point and on the contrary the decision cited by the appellant is directly on the issue under consideration and hence the learned CIT(A) ought to have followed the same. 4)The learned CIT(A) has erred in holding that law laid down in the case of Mysore Mineral and Podar Cements has undergone a change after amendment to registration act and therefore is not a valid law, and thus erroneously refused to follow the same. . 5)The learned CIT(A) erred in not considering and appreciating the fact that the appellant was not claiming any benefit of doubt of ambiguity in the provisions of law but has based his claim on the basis of settled legal position and therefore the decision in the case of Dilip Kumar and Co has no relevance. 5) For these and any other ground that may be urged at the time of hearing, this appeal may be allowed in the interests of equity and justice." 3. It was submitted by ld. AR of assessee that the issue involved in the present appeal is regarding allowability of deduction u/s. 54F of the IT Act. He drawn our attention to para no. 13 of the order of ld. CIT(A) and pointed out that it is noted by....
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....lace purchased, or has within a period of three years after that date constructed, one residential house in India (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say,- (a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45 ; (b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45: Provided that nothing contained in this sub-section shall apply where- (a) the assessee,- (i) owns more than one residential house, other than the new asset, on the date of transfer of the original asset; or (ii) purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the original asset; or (iii) constructs any residen....
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....t being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section] in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit ; and, for the purposes of sub-section (1), the amount, if any, already utilised by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset : Provided that if the amount deposited under this sub-section is not utilised wholly or partly for the purchase or construction of the new asset within the period specified in sub-section (1), then,- (i) the amount by which- (a) the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of the new asset as provided in clause (a) or, as the case may be, clause (b) of sub-section (1), exceeds (b) the amount that would not ha....
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.... this is also noted that if the aforementioned transaction amounts to purchase of property, the same would be within a period of one year. The Hon'ble Delhi High Court noted that the only question for consideration in that case was this as to whether this transaction by way of agreement of sale coupled with possession can be accepted as a purchase within the meaning of section 54 of the IT Act. This is also noted in the same para that out of the agreed consideration of Rs. 2.03 Lakhs, the assessee paid an amount of Rs. 1.73 Lakhs at the time of entering into the said agreement. In that case, the AO as well as the ld. CIT(A) and the Tribunal rejected the claim of the assessee on this ground that the assessee did not become the owner of the property as the said transaction was not evidenced by registration as provided u/s. 17 of the Registration Act. The Hon'ble Delhi High Court came to the conclusion that for applying the provisions of section 54F of the IT Act, it is not necessary that the assessee should become the owner of the property because section 54 of the said Act speaks of purchases. The Hon'ble Delhi High Court in that case followed the judgment of Hon'ble Apex Court rend....
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....w, other than being received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by a registered instrument. Section 17(1A) and Section 49 of the Registration Act, 1908 Act, as amended, read thus: "17(1A). The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then they shall have no effect for the purposes of the said Section 53A." "49. Effect of non-registration of documents required to be registered. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:....
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....1 unless the said contract is registered. This being the case, and it being clear that the said JDA was never registered, since the JDA has no efficacy in the eye of law, obviously no "transfer" can be said to have taken place under the aforesaid document. Since we are deciding this case on this legal ground, it is unnecessary for us to go into the 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. Since we are of the view that sub-clause (v) of Section 2(47) of the Act is not attracted on the facts of this case, we need not go into any other factual question." 7. From para no. 19 of this judgment as reproduced above, it is noted by Hon'ble Apex Court in this case that the direction provided u/s. 53A is only a shield and can only be resorted to as a right of defence. In the same para, this is also noted by Hon'ble Apex Court that unless the document containing the contract to transfer for consideration any immovable property (for the purpose of Section 53A of 1882 A....