TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 95
X X X X Extracts X X X X
X X X X Extracts X X X X
....n construing the date of transfer as 04.11.2004, when Right to own the property was established/ accrued to the Appellant on the date of the High Court passed a consent decree dated 28.05.1999 under the consent terms and not on 04.11.2004 when an agreement was executed in compliance with the High Court's Order ? (b) Whether on the facts and in the circumstances of the case, the Tribunal was justified in construing an all together new date of transfer of Tenancy Rights as 04.11.2004 without giving opportunity to the Appellant to give her say on the said issue of date ?" 2. At the outset learned counsel for the appellant/assessee (for short, "the assessee") fairly states that considering the purport of question (b) although the assessee had raised question (a), this question would not arise for consideration, as the controversy, which was considered by the Tribunal and which in the peculiar facts and circumstances of the case has not been considered, is subject matter of question (b). It is, therefore, his contention that the assessee would press only question (b). 3. We have accordingly heard learned counsel for the parties on question (b). Briefly the facts are:- There ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Plaintiffs and Defendant No.2 to 17 undertake to this Hon'ble Court to convert such tenancy of Defendant No. 1 in the area admeasuring 14000 sq. ft. (Carpet area) on 3rd and 4th floor of the said building "Shreeniketan", Annie Besant Road, Worli, Mumbai 400 018 and six covered car parking space and one open car parking space into ownership on the same terms and conditions as applicable in case of other existing tenants of "Shreeniketan Building". 4. The Plaintiff and Defendants No.2 to 17 further undertake to this Hon'ble Court that they shall apply to this Hon'ble Court for necessary orders by consent of the Parties in Suit No 120 of 1978 (Usha Harshadkumar Dalal Versus Lilaben Manibhai Patel & Ors.) to create tenancy rights in respect of 14000 sq. ft. carpet area on the 3rd and 4th floor of the said building "Shreeniketan" situate at Annie Besant Road, Worli, Mumbai 400 018 and six covered parking space and one open car parking space in the compound of the said building and the order directing the Court Receiver to accept rent from the said Hajra Iqbal Memon, the 1st Defendant herein as tenant in respect of the said premises and to issue regular rent receipts to her for the mo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assessee in pursuance of the said agreement. Under clause (3) of the agreement (internal page 9 of the agreement), it was agreed between the parties that at the request of the owners, the tenants (which included the assessee) had agreed to accept an alternate accommodation admeasuring 9000 sq. ft. (carpet area) including the proportionate area of common toilets on the third floor and 5000 sq. ft. (carpet area) also the proportionate area of common toilets on the fourth floor of the said building, with six covered car parking spaces and one open car parking space delineated on the plan annexed to the said agreement, on ownership basis in lieu of the assessee/tenants vacating the said tenanted premises as held by them as tenants of the co-owners and the owners shall place the tenants in vacant possession of the said alternate premises, as owners thereof on the execution of the said agreement. We need not delve on the other contents of the said agreement suffice it to observe that the assessee has not disputed the existence of such agreement and the rights under such agreement were created in favour of the assessee. 5. On 22 February 2007, a Deed of Confirmation under which the ri....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... issue of the date of transfer, which had taken place on 22 February 2007 and not on 28 May 1999, when the consent terms were filed before the High Court. Ground no. 3 as raised by the assessee reads thus:- "3. On the facts and in the circumstances of the case and in law the Assessing Officer erred in assessing the capital gains on the fees paid for stamps and registration in the assessment year 2007-08 as originally the said agreement was, in fact, executed on 4.11.2004, as it was relatable to the Assessment Year 2005-06 and not for the assessment year 2007-8." 9. The CIT (A) passed an order dated 18 February 2010 whereby the assessee's appeal was allowed. In the said order, the CIT (A) held that no transfer has taken place in the Assessment Year 2007-08 as the assessee had acquired ownership rights in A.Y. 2000-01. Hence the order passed by the AO making addition qua capital gains for the A.Y. 2007-08 was held to be not a correct approach on the part of the A.O. The CIT (A) accordingly, deleted the additions as made by the AO. 10. The Revenue being aggrieved by the order passed by the CIT (A), filed an appeal before the Tribunal, Mumbai. The primary grounds as raised by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...... 7. We have heard the rival submissions of the parties and perused the records. The facts pertaining to the controversy are already narrated in detail in upper part of this order. One Mr. M.K. Mohammed was in adverse possession of the land situated at "Gurukripa" Dr. Annie B. Road, Worli, Mumbai. The said Shri Mohammed was running the restaurant there as he has constructed the structure on the said property. It appears that there was a litigation between co-owners in the Hon'ble High Court. The Hon'ble High Court has appointed one Court Receiver namely Mr. D.B. Khade. As per facts on record Shri M.K. Mohammed and other occupants / tenants were in the said property. The Court Receiver filed the Suit against Shri M.K. Mohammed in the Hon'ble High Court of Bombay seeking the relief by way of directions to get the vacant possession of the said property from Shri M.K. Mohammed. There was compromise or settlement between Shri M.K. Mohammed and Court Receiver and in pursuance of the Consent Terms filed in the Hon'ble High Court in the Suit filed by the Court Receiver, the Hon'ble High Court passed a Consent Decree. Meantime, the assessee entered into an agreement ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er of the capital gain as it is a 'transfer' within the meaning of section 2(47) r.w.s. 45 of the I.T. Act. 8. Core question of controversy to be decided is whether the said Transfer was in the A.Y. 2007-08. Admittedly, the assessee made the compliance on 4.11.2004 and in our opinion this issue has to go in favour of the assessee as the transfer took place on the date i.c. 4.11.2004 when the agreement in compliance with the Consent Decree was executed and the assessee vacated the property, which was subject matter of the litigation between her and the co-owners. 9. We are unable to accept the plea of the Ld. Counsel that at the most, the transfer could be in the year 1999 when the Consent Decree was passed for the reason that though the Consent Decree was passed it was subject to certain conditions and on compliance of the concessions only the assessee was to be conferred with the ownership of the alternate premises agreed to be given in the Shriniketan building by co-owners/landlords of the property. We, therefore, hold that the transfer took place on 04.11.2004 and not on 22.02.2007 even if the Deed of confirmation was registered on that date. We, accordingly, confi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 2004 should be the appropriate date, when the transfer of the premises in favour of the assessee had taken place (i.e. the date on which a tripartite agreement was entered between the developers, co-owners and the assessee) which according to Mr. Subir Kumar not only recognized, but confirmed the rights in favour of the assessee, as agreed between the parties in consent terms dated 28 May 1999 filed in Suit No. 1593 of 1999. However, in making such submission, Mr. Subir Kumar would not dispute the grounds which were raised by the Revenue before the Tribunal, which we have noted hereinabove that such issue was not raised by the Revenue before the Tribunal. Mr. Subir Kumar submits that the scope of the appeal also needs to include what has held for adjudication before the CIT (Appeals). He has accordingly prayed for dismissal of the appeal. 16. Having heard learned counsel for the parties and having perused the record and the impugned order, we find substance in the contention as urged on behalf of the assessee. It is clear from the appeal memo as filed by the assessee before the Tribunal that the ground, which was inter alia raised before the Tribunal, was whether the tenan....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to suo motu go into the question. The relevant observations of the Court are required to be noted which read thus:- "Mr. Palkhivala contends that the only question raised by the assessee before the Tribunal was whether the payment of Rs. 3 lakhs held by the Appellate Assistant Commissioner to have been made by the assessee to Milkhiram was capital in nature or a revenue expenditure. The factum of payment of Rs. 3 lakhs was not in dispute before the Tribunal inasmuch as neither the assessee nor the Income Tax Officer had raised that question. The Tribunal, therefore, acted without jurisdiction in suo motu going into the question and varying the finding of the Appellate Assistant Commissioner on that issue. In our opinion this contention is well founded. As already stated, when the Tribunal desired to deal with the question of factum of payment of Rs. 3 lakhs, an objection was raised by Mr. Palkhivala, who had appeared before the Tribunal on behalf of the assessee, that the Tribunal had no jurisdiction to examine and determine the question of factum of payment inasmuch as that factum of payment was not disputed by the Income Tax authorities. Now, the statement of the case states t....