TaxTMI 
TaxTMI 
2022 (3) TMI 778
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....e property in question was received in 1982 by Sh. Zumberlal Hemraj Firodiya, his father, as his share in the property of Firodiya family. On 20-08-1982, his father executed an unregistered agreement to sell in favour of Michael Oskar Parera and Rajendra Nathmal Katariya for a consideration of Rs. 5.00 lakhs. A sum of Rs. 50,000 was received and the remaining sum of Rs. 4.50 lakh was to be received at the time of execution of sale deed. On the demise of his father in 1996, the property in question devolved to his successors, namely, the five children of Sh. Zumberlal Hemraj Firodiya, including the assessee. On the death of Sh. Micheal Oskar Parera, one of the purchasers, the five brothers and sisters executed another Unregistered Agreement to sell on 03-05-2001 with Ms.Rozline Michael Parera and Mr.Rajendranathmal Katariya. The assessee submitted before the AO that even though the Sale Deed was registered on 07-12- 2010 but Agreement to sell was made on 03-05-2001. Since the consideration of Rs. 5.00 lakhs was received by his father, the assessee claimed that no capital gain was chargeable to tax in his hands. The AO perused the Sale Deed of 1982 produced by the assessee which was ....
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....ounded on the submission that the assessee accepted three other properties, namely, Bank Road property; Old Cloth Market property; and Khrist Galli property in lieu of his share in the property in question. To substantiate this argument, he relied on an affidavit executed by him in this regard on 01-12-1990, whose copy has been placed at page 1 of the paper book. The ld. AR was directed to substantiate his argument of having received the above three properties in lieu of his share in the property in question with the help of a Court decree or any other registered document showing that these properties, which were hitherto under the ownership of his father, were received by him in lieu of his share in the property in question. The case was adjourned for enabling the ld. AR to place on record such evidence. On the next date also, the ld. AR could not place on record any Court decree or a testamentary or non-testamentary document to support his contention. He fairly admitted that no such evidence exists. However, he emphatically relied on the assessee's affidavit dated 01-12-1990 and also the affidavit of his father made on 26-02-1994 to support the contention. 6. The ld. AR is har....
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....ontrary, it can be seen from the Sale Deed dated 07- 12-2010 that the assessee has signed it as one of the five co-owners and not as a 'Consenting party'. There is no reference in the registered Sale Deed 07-12-2010 to the alleged transfer of the above three properties in favour of the assessee in lieu of his giving up share in the property in question. In view of the fact that the assessee signed the registered Sale Deed as a co-owner and not as a consenting party and further that there is no legal document demonstrating the assessee giving up his share in the property in question in lieu of the three properties, I am not inclined to accept the contention of the ld. AR that the assessee was not a co-owner of the property in question at the time of the execution of the registered sale deed in 2010. 9. There is one more angle of this issue. The ld. AR made another submission that the Sale Deed executed on 07-12-2010 was stayed by an order dated 09-11-2013 passed by the Tehsildar and Agricultural Lands Tribunal, Ahmednagar, an english translated copy of which has been placed on record. The relevant thing to be mentioned from that proceeding at this stage is that the name of the as....
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....anner prescribed therefore by the law for the time being in force, the transferor shall be debarred from enforcing against the transferee any right in respect of the property. The effect of this section was to treat the part performance of the contract, subject to the conditions given therein, as constituting transfer of immovable property notwithstanding the nonregistration of the sale deed. Proviso to section 49 of the Registration Act, prior to 2001 amendment, also provided that an unregistered document affecting immovable property and required by this Act or the TPA, to be registered may be received, inter alia, as evidence of part performance of a contract for the purposes of section 53A of the TPA. Section 2(47)(v) of the Act provides that "transfer", in relation to a capital asset, includes: `any transaction involving 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 in section 53A of the Transfer of Property Act, 1882'. On a conjoint reading of section 2(47)(v) of the Act with section 53A of the TPA and section 17 and 49 of the Registration Act, before amendment, it transpires that pa....
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....he position has become after the 2001 amendments qua the transaction of part performance of contract as per section 53A of the TPA covered under section 2(47)(v) of the Act. 13. When the facts as prevailing in the extant case are viewed in the light of the above legal position, it becomes ostensible that the transfer of the property in question took place only on the execution of the registered sale deed in 2010 relevant to the assessment year under consideration and not in the year 2001 when the unregistered Agreement to sell was executed. Moreover, the ld. AR has not drawn my attention towards any material indicating that the capital gain on the transfer of the property in question was offered by the assessee or his father or anyone else at any point of time. This contention, ergo, fails. III. Effect of order of Tehsildar and Agricultural Lands Tribunal 14. The ld. AR gave another twist to the facts of the case by submitting for the first time before the Tribunal that the registered sale deed executed in the year 2010 was cancelled by the order dated 09-11-2013 passed by the Tehsildar and Agricultural Lands Tribunal, Ahmednagar. This being a new legal argument having bea....
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.... the ld. AR submitted that the assessee did not file any appeal against the order passed by the Tehsildar and Agricultural Lands Tribunal, Ahmednagar and further that the disputed property was also not transferred to the State Government. He further claimed that the assessee has no knowledge of any appeal having been filed by other co-owners. Thus, it is manifest that there is an apparent contradiction in the part reply submitted on behalf of the assessee vis-à-vis the terms of the order of the Tehsildar and Agricultural Lands Tribunal, Ahmednagar. Firstly, the ld. AR has not drawn my attention towards either the relevant provision under which the Tehsildar and Agricultural Lands Tribunal set aside the registered sale deed or the copy of petition challenging the registered sale deed before such Tribunal. Secondly, arguendo, that the Tehsildar and Agricultural Lands Tribunal was competent to do so, then his order should have taken its logical conclusion, namely, the disputed property should have vested in the State Government after the expiry of the time for filing appeal against the order. Per contra, the ld. AR submitted that the property in question has not vested in the S....