TaxTMI 
TaxTMI 
2026 (3) TMI 1001
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....lled for. 3. During assessment proceedings, the AO observed that assessee has declared LTCG loss of Rs. 45,80,056/- and observed that total cost of improvement with indexation at Rs. 1,83,73,704/- was claimed. The assessee was asked to submit the details in respect to cost of acquisition and cost of improvement. He observed that assessee along with her husband booked unit bearing No.PTS-01-501, 5th Floor, Palm Terraces Select, Sector 66, Golf Course Extension Road, Gurgaon with the developer, Emaar MGF Land Limited in the year 2010. In this regard, assessee has submitted copy of registered buyer agreement dated 03.04.2014 between developer and assessee. As per the agreement, assessee had agreed to purchase the said immovable property for a consideration of Rs. 1,68,54,215/-. After the demise of assessee's husband, the allotment of the said property was transferred to the assessee's name by the developer. Further AO observed that the copy of executed registered agreement to sale dated 15.07.2021 by which assessee had mutually agreed for nomination/transfer of the above said immovable property to Rajat Likhyani and Mrs. Bhawana Likhyani for a consideration of Rs. 2,22,00,000/- and....
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....celess Assessment Centre, Delhi in computing total income at Rs. 83,45,015/- as against Rs. 37,51,250/- as per return Of Income filed by the Appellant. 2. That the order dated 19.05.2025 passed u/s 250 of the Act by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi is against law and facts on the file in as much as he was not justified to uphold the action of the National Faceless Assessment Centre, Delhi in making an addition of Rs. 45,93,765/- (being difference of Rs. 2,22,00,000/- shown as full value consideration under the head "Capital Gain" as total receipt under the head of "Income from Other Sources after excluding the payment of Rs. 1,76,06,235/-) by treating the capital gain (sale of rights in flat) as "Income from Other Sources" 3. That the order dated 19.05.2025 passed u/s 250 of the Act by the Commissioner of Income Tax(Appeals), National Faceless Appeal Centre (NFAC), Delhi is against law and facts on the file in as much as he was not justified to uphold the action of the National Faceless Assessment Centre, Delhi in making the assessment in complete scrutiny as against the case of the Appellant was selected for ....
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.... of Rs. 1,76,06,235/- made, the net amount of Rs. 45,93,765/- should not be treated as the income from other sources. In response thereto a detailed reply dated 20.02.2024 was filed by the Appellant before the Ld. Assessing Officer. 6) However, the Ld Assessing Officer, while framing the assessment has arbitrarily, unjustifiably and illogically, proceeded to make an addition of Rs. 45,93,765/- (being difference of Rs. 2,22,00,000/- shown as full value consideration under the head "Capital Gain" as total receipt under the head of "Income from Other Sources" after excluding the payment of Rs. 1,76,06,235/-) by treating the capital gain as "Income from Other Sources". 7) A chart regarding the Chronology of Events in the instant case:- Chronology of Events Date Allotment Letter dated 31-Aug-10 issued to Sh. Sandeep Dhawan towards provisional allotment of Apartment No PTS-01-0501 in Palm Terraces, Sector-66, Gurgaon (At Page 62 of Paper Book) 31.08.2010 Buyer Agreement between Emaar MGF Land Limited, M/s Brijbasi Projects Private Limited and Sandeep Dhawan (At Page 63-72) of Paper Book) 03.04.2014 Endorsement of Buyer agreement by Emaar India Ltd. ....
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....Properly Act, 1882; (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring or enabling the enjoyment of, any immovable properly". e) Reference is invited to Para 11.2 of Departmental Circular No. 495 dated 23-09-1987 (At Page 43 of Paper Book) which reads as follows:- "The clause (vi) referred to above which was inserted into the Act by the Finance Act 1987 (w.e.f 1-4-1988), has brought into the ambit of "transfer", the practice of enjoyment of property rights through what is commonly shown as Power of Attorney arrangements. The practice in such cases is adopted normally where transfer of ownership is legally not permitted. A person holding the power of attorney is authorised the powers of owner, including that of making construction. The legal ownership in such cases continues to be with the transferor". f) Further, section 53A of the Transfer of Property Act, 1982 deals with the concept of "part performance" in the context of transfer ....
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....hat assessee has only transferred right on the above said unit and there was no registered agreement nor there is any transfer of physical possession of the unit to the assessee. That being the case, he was of the view that assessee has transferred only right of the property and not transferred the property physically, therefore, the transfer of the above said property will not fall under the head capital gains but it will be taxed in the head income from other sources. 9. After considering both the parties, we observed that as per the provisions of section 2(14) of the Act, the definition of capital assets means property of any kind held by an assessee, the property of any kind having a broader meaning. Further we observed that the definition of transfer in relation to capital assets given u/s 2(47) of the Act, specifically (v) (vi) read as under :- "(v) any transaction involving the allowing or the possession of any immoveable properly to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Properly Act, 1882; (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a c....