TaxTMI 
TaxTMI 
2023 (3) TMI 919
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....income of 11,14,480/-. After inquiries the Assessing Officer accepted the return income, by assessment order u/s 143(3) r.w.s. 147 dated 27.12.2019. However, Ld. PCIT considered Assessment order to be erroneous and prejudicial to the interest of revenue, accordingly a notice u/s 263 dated 09.03.2022 was issued upon the assessee on following grounds :- First, that the cost of acquisition of the property was Rs.42,12,550/- as per the sale deed whereas the assessee has claimed the cost of acquisition of Rs. 62,40,000/-. Secondly, that the Assessing officer did not verify the source of repayment of loan of Rs. 40 lakhs avail from IDBI. 2.1 The assessee responded to the aforesaid issue no. 1 by submitting that the property was purchased from Mrs. Sangita Gupta who was original allottee of the property from M/s. Supertech Construction Private Limited. The sales consideration Rs. 62,40,000/- was paid to Smt. Sangita Gupta through banking channels. Further that the Sangita Gupta had a certificate from the M/s. Supertech Construction Pvt. Ltd. that she has paid the price of the property to the builders. It was submitted that sale deed was executed directly by the builder M/s. Supertech C....
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....the principle enunciated by the Hon'ble Supreme Court in the case of CIT v, Balbir Singh WSaini /2Q17 86 taxmann.com 94 /251 Taxman 202/ 398 ITR 531 SC) wherein, the Hon'ble Supreme Court held that in the case of immovable property, after the year 2001, the delivery of possession of the immovable property in terms of an agreement cannot be treated as a transfer in terms of section 2/47)(v) of the IT Act, unless the very agreement is registered with the Registration authorities because from the year 2001 on account of the amendment made under the Registration Act, 1908, every agreement contemplated u/s 53A of the Transfer of Property Act is required to be mandatorilv registered. In the absence of registration, the agreement shall have no effect in law for the purposes of section 53A of the Transfer of Property Act, 1882. Therefore, in view of the above facts and the law as laid down by the Hon'ble Supreme Court, the provisions of section 2(47)(v) are not applicable to the said transaction of Rs. 60,00,000/, as embodied in the so-called Agreement to sell dated 05.08.2009. 4.3 Even otherwise, the unregistered Agreement to sell dated 05.08.2009 cannot be accepted at its face value, ....
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....Bank of Scotland), however, it is revealed from the said bank statement that she had no regular source of income, the desired fund received from some credit entries, prior to the payment. The evidence with regard to identity, creditworthiness of the lender and genuineness of the transactions has not been filed during the proceedings. Moreover the said payment has been made to Smt. Sangeeta Verma which has been not acceptable as a part of purchase consideration as it is not known for what purpose this money has been transferred to her account. Secondly, during the course of revisionary proceedings, (Vide order sheet entry dated 16.03.2022 & 21.03.2022) the Ld. Counsel of the assessee was requested to produce any evidence (In the Form of PAN, Return of Income, Bank Statement) to substantiate the claim that Rs. 20,00,000/- was transferred to Smt. Sangeeta Verma for the purchase of the said flat. However no compliance has been made regarding this. 2. Out of total payment of Rs. 63,00,000/- received as sale consideration of the impugned property, payment of Rs. 40,00,000/- found credited (Rs. 35.0 lacs on 10.09.2011 and Rs. 5.0 lacs on 29.09.2011) in the bank a/c (No. 1474187 with Ro....
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....erred in not appreciating the fact, that the assessing officer has wrongly assumed the jurisdiction u/s 147 of the ACIT, on the basis of the incorrect reason to believe, which is illegal bad in law and without jurisdiction. 4. That, the Pr. CIT has failed to appreciate, that, the assessing officer has completed the re-assessment proceedings without providing the copy of reason recorded, even after specific request was made, therefore, the re-assessment proceedings and order passed is illegal, bad in law and without jurisdiction. 5. That, the Pr. CIT has erred in initiating the proceedings u/s 263 on the basis of the re-assessment proceedings and order passed, which are void-ab-initio, illegal, bad in law and without jurisdiction. 6. That the order passed under section 147/143 (3) by the Assessing Officer is neither erroneous nor prejudicial to the interest of Revenue and as such the order passed by the pr. CIT order under section 263 in cancelling the assessment is illegal and bad in law. 7. That the Pr.CIT has failed to appreciate that all the issues referred in his order under Section 263 have been duly considered and the view taken by the Assessing Officer is a possi....
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....d thus in the light of reply and relevant document being examined by the Ld. AO, there is no question of any lack of inquiry. It was submitted that if assessing officer has taken one of the possible views. The assessment order cannot be interfered u/s 263 of the Act. 7. Ld. DR however supported the orders of Ld. PCIT submitting that the premium received was not proved to the given to Mrs. Sangita Gupta on account of the sale as the sale deed was executed directly by the builder. 8. Giving thoughtful consideration to the matter on record, it can be observed that there is no dispute to the fact that the an amount of Rs. 62,40,000/- was paid by banking channels to Smt. Sangita Gupta. There is available on record the material which shows that the builder M/s. Supertech Construction Pvt. Ltd., who executed the sale deed of purchase of the demised property in favour of assessee, had issued a certificate mentioning no dues from Smt. Sangita Gupta qua this property. There are receipts which show Mrs Sangita Gupta had made payments to builder through cheques over period starting from 24/2/2005. Assessee along with his wife purchased the property from Mrs. Sangita Gupta from availing a loa....
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....d by the purchaser or the circle rates determined by the Government. It may not be the 'cost of acquisition of the asset'. 11. The 'cost of acquisition of the asset' thus not only includes the sales consideration incorporated in sale deed or value of asset taken by registration authority for the purpose of stamp duty but also any amount paid to any intermediary under the preceding agreement to sell or any enforceable liability Provided intermediary had a enforceable and transfarable interest or an interest in the form of an encumbrance upon the asset and sale deed can be executed only on redemption of that interest. 12. Mumbai Bench in Dy. Commissioner Of Income Tax vs Shri Uday S. Kotak, Kotak Mahindra decided on 28 June, 2004, (2005) 96 TTJ Mum 1018 was considering a question if payments made to tenants are cost of acquisition of residential house, therefore, it qualifies for exemption Under Section 54F of the Act and made certain observations which are relevant to present lis and support the aforesaid opinion of this Bench. The Mumbai bench held; "11. An asset (particularly immovable asset) can be sold by a person , who has legal title over the asset. Without having legal ti....