Sh Shagan Lal, Fazilka v. The Income Tax Officer, Abohar

ITA 425/ASR/2015 | 2009-2010
Pronouncement Date: 30-11-2017 | Result: Allowed

Appeal Details

RSA Number 42520914 RSA 2015
Assessee PAN OFTHE1882A
Bench Amritsar
Appeal Number ITA 425/ASR/2015
Duration Of Justice 2 year(s) 3 month(s) 23 day(s)
Appellant Sh Shagan Lal, Fazilka
Respondent The Income Tax Officer, Abohar
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-11-2017
Date Of Final Hearing 19-06-2017
Next Hearing Date 19-06-2017
First Hearing Date 19-06-2017
Assessment Year 2009-2010
Appeal Filed On 07-08-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T.S. KAPOOR ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY JUDICIAL MEMBER I.T.A NO.425(ASR)/2015 ASSESSMENT YEAR:2009- 10 SH. SHAGAN LAL S/O SH. AMAR SINGH JALALABAD (W) PAN: VS. INCOME TAX OFFICER WARD-II(4) ABOHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P. N. ARORA (ADV.) RESPONDENT BY: SH. S.S. KANWAL (LD. D.R) DATE OF HEARING: 11.10.2017 DATE OF PRONOUNCEMENT:30.11.2017 ORDER PER N.K.CHOUDHRY: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE ON FEELING AGGRIEVED AGAINST THE ORDER DATED 30.06.201 5 PASSED BY THE LD. CIT(A) BATHINDA IN APPEAL NO.51-IT/CIT(A)/BTI /14-15 FOR ASST. YEAR:2009-10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL. 1 THAT THE APPELLATE ORDER DATED 30.06.2015 OF L D. CIT(A) CONFIRMING THE ADDITION OF RS.9 00 000/- TO THE INCOME OF RS.9 175 /- DECLARED IN THE RETURN OF INCOME BY THE ASSESSEE IS AGAINST FACTS A ND LAW. 2. THAT THE LEARNED LD. CIT(A) ERRED ON FACTS AN D LAW IN CONFIRMING THE ADDITION OF RS.9 00 000/- ON ACCOUNT OF ALLEGED UNE XPLAINED SOURCE OF CASH DEPOSITED IN SAVING FUND ACCOUNT BY THE ASSESSEE. T HE EVIDENCE FURNISHED BEFORE THE AO AS WELL AS LD. CIT(A) HAS BEEN IGNORE D BY THE CIT(A). THUS THE APPELLATE ORDER HAS BEEN PASSED BY THE ID. CIT( A) WITHOUT GIVING ANY PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. THAT THE LD. CIT(A) ERRED ON FACTS AND LAW I N CONFIRMING THE ADDITION OF RS.9 00 000/- DESPITE THE FACT THAT THE ONLY SOU RCE OF INCOME OF THE ASSESSEE IS BANK INTEREST AND AGRI. INCOME. HENCE T HE ONLY SOURCE OF CASH DEPOSITED BY THE ASSESSEE ARE THE SALE PROCEEDS OF AGRICULTURAL LAND IN ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 2 EARLIER YEARS BECAUSE THE ASSESSEE HAS NO OTHER SOU RCE OF INCOME. MOREOVER WHERE ONLY SOURCE OF INCOME IS OF THE ASS ESSEE IS FROM AGRICULTURE INCOME NO ADDITION CAN BE MADE UNDER TH E HEAD INCOME FROM UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT 1961. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEN D THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: AS PER INFORMATION AVAILABLE FROM THE AIR RELATED T O THE F.Y.2008-09 TO THE EFFECT THAT ASSESSEE HAD DEPOSITED RS.2 5 00 000/- IN CASH IN HIS SAVING BANK ACCOUNT WAS RECEIVED BY THE A SSESSING OFFICER AND THEREFORE NOTICE U/S 148 OF THE I.T. ACT W AS ISSUED AND IN RESPONSE TO THE SAME THE ASSESSEE BEING AN AGRICULTURIST F ILED HIS RETURN OF INCOME TO THE TUNE OF RS.9 175/- AND AGRICUL TURAL INCOME AT RS.13 50 000/- FOR THE ASST. YEAR 2009-10 ON DATED 05. 02.2014 AND THEREAFTER SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE WHICH WAS REPLIED BY THE REPRESENTATIVE OF THE ASSESSEE AND FINALL Y THE ASSESSMENT ORDER WAS PASSED BY MAKING ADDITION OF RS.2 72 9 73/- BY TREATING AS INCOME FROM OTHER SOURCES BY ENHANCING THE E XPENSES ON THE CROPS SOLD AT 30% INSTEAD OF 12% AS SHOWN BY THE ASSESSEE BY WORKING OUT (RS.13 50 000/- - 10 78 027/- = 2 72 973 /-) FURTHER RS.9 00 000/- BY TREATING AS INCOME OF THE ASSESSEE UNDER YEAR CONSIDERATION U/S 69 OF THE ACT. 4. ON BEING DISSATISFIED THE ASSESSMENT ORDER WAS CHALLENGED BY THE ASSESSEE BEFORE THE LD. CIT (A) WHO HOWEVER REDUCE D THE EXPENSES ON CROPS @ 12% WHICH WERE CLAIMED BY THE ASSESSEE INSTEAD OF @30% DETERMINED BY THE ASSESSING OFFICER AND G IVEN PARTLY RELIEF BY DELETING THE ADDITION OF RS.2 72 973/- HO WEVER WHILE EXAMINING THE SOURCES OF CASH DEPOSIT IN THE ASSESSEES BOOK A CCOUNT IT WAS OBSERVED BY THE LD. CIT(A) THAT IN THE ABSENCE O F ANY DOCUMENTARY EVIDENCE IN THE APPELLATE PROCEEDINGS AS W ELL AS IN ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 3 ASSESSMENT PROCEEDING THE SAME EXPLANATION HAS BEEN REITE RATED WITHOUT ANY EVIDENCE THEREFORE THE LD. CIT(A) FIND ING NO INFIRMITY IN THE ORDER OF THE ASSESSING OFFICER REJECTED THE EXPLANAT ION OF THE APPELLANT QUA CASH DEPOSIT RS.9 00 000/-. 5 . ON FEELING AGGRIEVED AGAINST THE ORDER PASSED B Y THE LD. CIT(A) THE ASSESSEE FURTHER CARRIED THE MATTER BEFORE THIS BENCH. 6. THE LD. AR SUBMITTED THAT ALTHOUGH IN ADDITION TO TH E WRITTEN SUBMISSION SUBMITTED BEFORE THE LD. CIT(A) IT WAS ALSO EXPLAINED DURING THE COURSE OF HEARING THAT ADDITION OF RS.9 00 000/- WAS NOT CALLED FOR AS THE SAID AMOUNT WAS RECEIVED BY THE ASSESSEE F ROM HIS FATHER ON ACCOUNT OF GIFT AS THE ASSESSEE HAD POWER OF AT TORNEY FROM HIS FATHER SH. AMAR SINGH AND IN RURAL AREAS THE COMMO N MAN FEELS SECURE BY KEEPING CASH AT HOME HENCE THE CREDIT OF TH E SALE OF LAND MAY KINDLY BE ALLOWED. BY FILING A PAPER BOOK THE ASSESSEE ALSO RELIED UPON SIX SALE DEEDS TOTALING TO AMOUNT OF RS.6 63 000 /- EXECUTED ON 28.02.2007 10.04.2006 20.02 2006 10.06.2005 10. 03.2005 26.07.2004 RESPECTIVELY. THE LD. AR SUBMITTED THAT ALL THE NECESSARY EVIDENCES AND EXPLANATIONS WERE SUBMITTED BEFORE THE AU THORITIES BELOW THEREFORE NO ADDITION AT ALL CALLED FOR HEN CE BE DELETED. 7. ON THE OTHER HAND THE LD. DR SUBMITTED THAT THE AS SESSEE EXCEPT OF FILING SOME COPIES OF THE SALE DEED DOES NOT FI LE ANY DOCUMENTS IN SUPPORT OF HIS CONTENTION TO THE EFFECT THA T HIS FATHER HAD GIVEN GIFT OF RS.9 00 000/- TO THE ASSESSEE. FURTHER TH E LD. DR SUBMITTED THAT NOT A SINGLE DOCUMENT HAS EVER BEEN PROD UCED BY THE ASSESSEE BY WHICH IT CAN BE CONSTRUED THAT THE SAID AMOUNT OF RS.9 00 000/- HAD BEEN RECEIVED AS GIFT FROM HIS FATHER AND IN THE ABSENCE OF SUBSTANTIVE AND OR SUPPORTIVE MATERIAL THE A UTHORITIES BELOW RIGHTLY ADDED RS.9 00 000/- IN THE INCOME OF TH E ASSESSEE U/S. 69 OF THE ACT. ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 4 8. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCE S OF THE CASE RELEVANT DOCUMENTS AND RIVAL SUBMISSIONS OF THE PART IES AS IN THE INSTANT CASE AS PER AIR INFORMATION IT WAS REVEALED THA T DURING THE F.Y.2008-09 THE ASSESSEE HAD DEPOSITED RS.25 00 000/- IN CASH IN HIS SAVING BANK ACCOUNT AND THEREFORE PROCEEDINGS UNDER IN COME TAX ACT HAVE BEEN STARTED AND OUT OF 25 00 000/- THE AMOU NT OF RS.9 00 000/- REMAINED UNEXPLAINED THEREFORE THE A DDITION WAS MADE BY LD. A.O. WHICH WAS SUBSEQUENTLY CONFIRMED BY TH E LD. CIT(A). THE ASSESSEE IN SUPPORT OF ITS CASE RELIED UPON VA RIOUS SALE DEEDS OF WHICH TOTAL AMOUNTS COMES TO RS.6 63 000/- AL LEGEDLY EXECUTED FROM 26 TH JULY 2004 TO 28 TH FEB. 2007 ON DIFFERENT DATES. IT IS COMMON PARLANCE THAT THE PROPERTY CAN BE SOLD BY POW ER ATTORNEY HOLDER BUT STILL MONEY HAS TO GO BACK TO THE OWNER OF THE PROPERTY AND FROM THE DOCUMENTS IT DOES NOT REFLECTS THAT MONEY WAS HA NDED OVER BY THE ASSESSEE TO HIS FATHER BY WHICH IT CAN BE PROVED T HAT AFTER SALE OF THE PROPERTY BY THE ASSESSEE THE CONSIDERATION AMOUN T WAS GIVEN TO HIS FATHER AND THEREAFTER THE SAME WAS GIFTED BY T HE ASSESSEE FATHER TO THE ASSESSEE. EVEN OTHERWISE NO DOCUMENTARY E VIDENCE HAS BEEN FILED WITH REGARDS TO THE RECEIVING OF MONEY BY THE ASESSEES FATHER AND /OR ANY DOCUMENT SUCH AS GIFT DEED OR ANY TENEMENTS TO THE EFFECT THAT THE AMOUNT OF RS.9 00 000/- WAS GIVEN BY THE ASSESEES FATHER TO THE ASSESSEE. WE ARE ALSO CONSCIOUS TO OBSERVE THE FACTS THAT EVEN THE PURPORTED SALE DEEDS HAVE BEEN EXECUTED MUCH PRIOR TO T HE DATE OF DEPOSITS EVEN IN SOME OF THE CASES 4 OR 5 YEARS BACK WHI CH CREATES THE DOUBTS IN THE AUTHENTICITY OF THE CLAIM OF THE ASS ESSEE. EVEN OTHERWISE AFTER THE AMENDMENT IN THE REGISTRATION AC T IN 2001 THE UNREGISTERED DOCUMENTS CANNOT BE RELIED UPON. ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 5 WE RECENTLY DEALT WITH UNREGISTERED DOCUMENTS IN THE CASE OF GURDEV SINGH VS INCOME TAX OFFICER I.T.A NO.202(ASR)/ 2016 DECIDED ON 08.10.2017 WHILE RELYING UPON THE RECENT JUDGME NT DELIVERED BY THE HON'BLE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VERSUS BALBIR SINGH MAINI (CIVIL APPEAL NO. 15619 OF 2017) IN WHICH WHILE DEALING WITH UNREGISTERED AGREEMENT THE APEX COURT LAID DOWN THE FOLLOWING RATIO:- 17. THE RELEVANT SECTIONS THAT ARE NECESSARY FOR U S TO DECIDE THE PRESENT MATTER ARE AS UNDER: TRANSFER OF PROPERTY ACT 53A. PART PERFORMANCE. WHERE ANY PERSON CONTRACTS TO TRANSFER FOR CONSIDE RATION ANY IMMOVEABLE PROPERTY BY WRITING SIGNED BY HIM OR ON HIS BEHALF FROM WHICH THE TERMS NECESSARY TO CONSTITUTE THE TRANSFER CAN BE ASCERTAINED WITH REASONABLE CERTAINTY AND THE TRANSFEREE HAS IN PA RT PERFORMANCE OF THE CONTRACT TAKEN POSSESSION OF THE PROPERTY OR ANY P ART THEREOF OR THE TRANSFEREE BEING ALREADY IN POSSESSION CONTINUES IN POSSESSION IN PART PERFORMANCE OF THE CONTRACT AND HAS DONE SOME ACT I N FURTHERANCE OF THE CONTRACT AND THE TRANSFEREE HAS PERFORMED OR IS WI LLING TO PERFORM HIS PART OF THE CONTRACT THEN NOTWITHSTANDING THAT WHERE T HERE IS AN INSTRUMENT OF TRANSFER THAT THE TRANSFER HAS NOT BEEN COMPLETED IN THE MANNER PRESCRIBED THEREFORE BY THE LAW FOR THE TIME BEING IN FORCE THE TRANSFEROR OR ANY PERSON CLAIMING UNDER HIM SHALL BE DEBARRED FRO M ENFORCING AGAINST THE TRANSFEREE AND PERSONS CLAIMING UNDER HIM ANY R IGHT IN RESPECT OF THE PROPERTY OF WHICH THE TRANSFEREE HAS TAKEN OR CONTI NUED IN POSSESSION OTHER THAN A RIGHT EXPRESSLY PROVIDED BY THE TERMS OF THE CONTRACT: PROVIDED THAT NOTHING IN THIS SECTION SHALL AFFECT THE RIGHTS OF A TRANSFEREE FOR CONSIDERATION WHO HAS NO NOTICE OF T HE CONTRACT OR OF THE PART PERFORMANCE THEREOF. INCOME TAX ACT SECTION 2 - DEFINITIONS IN THIS ACT UNLESS THE CONTEXT OTHERWISE REQUIRES (47) 'TRANSFER' IN RELATION TO A CAPIT AL ASSET INCLUDES - (I) TO (IV) XXX XXX XXX (V) 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 O F THE TRANSFER OF PROPERTY ACT 1882 (4 OF 1882) ; OR (VI) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMBER OF OR ACQUIRING SHARES IN A CO-OPERATIVE SOCIETY COMPAN Y OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT OR ANY ARRANGEME NT OR IN ANY OTHER MANNER WHATSOEVER) WHICH HAS THE EFFECT OF TRANSFER RING OR ENABLING THE ENJOYMENT OF ANY IMMOVABLE PROPERTY. 45. CAPITAL GAINS ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 6 (1) ANY PROFITS OR GAINS ARISING FROM THE TRANSFER OF A CAPITAL ASSET EFFECTED IN THE PREVIOUS YEAR SHALL SAVE AS OTHERW ISE PROVIDED IN SECTIONS 54 54B 54D 54E 54EA 54EB 54F 54G AND 54H BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD CAPITAL GAINS AND SHAL L BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER T OOK PLACE. 48. MODE OF COMPUTATION THE INCOME CHARGEABLE UNDER THE HEAD 'CAPITAL GAINS ' SHALL BE COMPUTED BY DEDUCTING FROM THE FULL VALUE OF THE CONSIDERATI ON RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET TH E FOLLOWING AMOUNTS NAMELY: (I) EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER; II) THE COST OF ACQUISITION OF THE ASSET AND THE C OST OF ANY IMPROVEMENT THERETO: 18. SECTION 53A AS IS WELL KNOWN WAS INSERTED BY THE TRANSFER OF PROPERTY AMENDMENT ACT 1929 TO IMPORT INTO INDIA THE EQUITABL E DOCTRINE OF PART PERFORMANCE. THIS COURT HAS INSHRIMANT SHAMRAO SURY AVANSHI & ANR. V. PRALHAD BHAIROBA SURYAVANSHI (D) BY LRS. & ORS. (20 02) 3 SCC 676 AT 682 STATED AS FOLLOWS: 16. BUT THERE ARE CERTAIN CONDITIONS WHICH ARE REQ UIRED TO BE FULFILLED IF A TRANSFEREE WANTS TO DEFEND OR PROTEC T HIS POSSESSION UNDER SECTION 53- A OF THE ACT. THE NECESSARY CONDITI ONS ARE: (1) THERE MUST BE A CONTRACT TO TRANSFER FOR CONSID ERATION OF ANY IMMOVABLE PROPERTY; (2) THE CONTRACT MUST BE IN WRITING SIGNED BY THE TRANSFEROR OR BY SOMEONE ON HIS BEHALF; (3) THE WRITING MUST BE IN SUCH WORDS FROM WHICH TH E TERMS NECESSARY TO CONSTRUE THE TRANSFER CAN BE ASCERTAINED; (4) THE TRANSFEREE MUST IN PART-PERFORMANCE OF THE CONTRACT TAKE POSSESSION OF THE PROPERTY OR OF ANY PART THEREOF; (5) THE TRANSFEREE MUST HAVE DONE SOME ACT IN FURTH ERANCE OF THE CONTRACT; AND (6) THE TRANSFEREE MUST HAVE PERFORMED OR BE WILLIN G TO PERFORM HIS PART OF THE CONTRACT. 19. IT IS ALSO WELL-SETTLED BY THIS COURT THAT THE PROTECTION PROVIDED UNDER SECTION 53A IS ONLY A SHIELD AND CAN ONLY BE RESORTED TO AS A RIGHT OF DEFENCE. SEE RAMBHAU NAMDEO GAJRE V. NARAYAN BAP UJI DHGOTRA (DEAD) THROUGH LRS. (2004) 8 SCC 614 AT 619 PARA 10. AN AG REEMENT OF SALE WHICH FULFILLED THE INGREDIENTS OF SECTION 53A WAS NOT REQUIRED TO BE EXECUTED THROUGH A REGISTERED INSTRUMENT. THIS POSI TION WAS CHANGED BY THE REGISTRATION AND OTHER RELATED LAWS (AMENDMENT) AC T 2001. AMENDMENTS WERE MADE SIMULTANEOUSLY IN SECTION 53A O F THE TRANSFER OF PROPERTY ACT AND SECTIONS 17 AND 49 OF THE INDIAN REG ISTRATION ACT. BY THE AFORESAID AMENDMENT THE WORDS THE CONTRACT THOUG H REQUIRED TO BE REGISTERED HAS NOT BEEN REGISTERED OR IN SECTION 53A OF THE 1882 ACT HAVE ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 7 BEEN OMITTED. SIMULTANEOUSLY SECTIONS 17 AND 49 OF THE 1908 ACT HAVE BEEN AMENDED CLARIFYING THAT UNLESS THE DOCUMENT C ONTAINING THE CONTRACT TO TRANSFER FOR CONSIDERATION ANY IMMOVABLE PROPERT Y (FOR THE PURPOSE OF SECTION 53A OF 1882 ACT) IS REGISTERED IT SHALL NOT HAVE ANY EFFECT IN LAW OTHER THAN BEING RECEIVED AS EVIDENCE OF A CONTRACT IN A SUIT FOR SPECIFIC PERFORMANCE OR AS EVIDENCE OF ANY COLLATERAL TRANSA CTION 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 TRAN SFER FOR CONSIDERATION ANY IMMOVABLE PROPERTY FOR THE PURPOSE OF SECTION 53A O F THE TRANSFER OF PROPERTY ACT 1882 (4 OF 1882) SHALL BE REGISTERED I F THEY HAVE BEEN EXECUTED ON OR AFTER THE COMMENCEMENT OF THE REGISTR ATION AND OTHER RELATED LAWS (AMENDMENT) ACT 2001 AND IF SUCH DOCUME NTS ARE NOT REGISTERED ON OR AFTER SUCH COMMENCEMENT THEN THEY SHALL HAVE NO EFFECT FOR THE PURPOSES OF THE SAID SECTION 53A. 49. EFF ECT OF NON-REGISTRATION OF DOCUMENTS REQUIRED TO BE REGISTERED. NO DOCUMENT RE QUIRED 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 THEREI N OR (B) CONFER ANY POWER TO ADOPT OR (C) BE RECEIVED AS EVIDENCE OF ANY TRANSACTION AFF ECTING SUCH PROPERTY OR CONFERRING SUCH POWER UNLESS IT HAS BEEN REGIST ERED: PROVIDED THAT AN UNREGISTERED DOCUMENT AFFECTING IM MOVABLE PROPERTY AND REQUIRED BY THIS ACT OR THE TRANSFER OF PROPERTY ACT 1882 (4 OF 1882) TO BE REGISTERED MAY BE RECEIVED AS EVIDE NCE OF A CONTRACT IN A SUIT FOR SPECIFIC PERFORMANCE UNDER CHAPTER II OF T HE SPECIFIC RELIEF ACT 1887 (1 OF 1877) OR AS EVIDENCE OF ANY COLLATERAL T RANSACTION NOT REQUIRED TO BE EFFECTED BY REGISTERED INSTRUMENT. 20. THE EFFECT OF THE AFORESAID AMENDMENT IS THAT ON AND AFTER THE COMMENCEMENT OF THE AMENDMENT ACT OF 2001 IF AN AGR EEMENT LIKE THE JDA IN THE PRESENT CASE IS NOT REGISTERED THEN IT SHALL HAVE NO EFFECT IN LAW FOR THE PURPOSES OF SECTION 53A. IN SHORT THER E IS NO AGREEMENT IN THE EYES OF LAW WHICH CAN BE ENFORCED UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT. THIS BEING THE CASE WE ARE OF THE VIE W THAT THE HIGH COURT WAS RIGHT IN STATING THAT IN ORDER TO QUALIFY AS A TRANSFER OF A CAPITAL ASSET UNDER SECTION 2(47)(V) OF THE ACT THERE MUST BE A CONTRACT WHICH CAN BE ENFORCED IN LAW UNDER SECTION 53A OF THE TRA NSFER OF PROPERTY ACT . A READING OF SECTION 17(1A) AND SECTION 49 OF THE REGI STRATION ACT SHOWS THAT IN THE EYES OF LAW THERE IS NO CONTRACT WHI CH CAN BE TAKEN COGNIZANCE OF FOR THE PURPOSE SPECIFIED IN SEC TION 53A. THE ITAT WAS NOT CORRECT IN REFERRING TO THE EXPRESSION OF THE NATURE REFERRED TO IN SECTION 53A IN SECTION 2(47)(V) IN ORDER TO ARR IVE AT THE OPPOSITE CONCLUSION. THIS EXPRESSION WAS USED BY THE LEGISLA TURE EVER SINCE SUB- SECTION (V) WAS INSERTED BY THE FINANCE ACT OF 1987 W.E.F. 01.04.1988. ALL THAT IS MEANT BY THIS EXPRESSION IS TO REFER TO THE INGREDIENTS OF APPLICABILITY OF SECTION 53A TO THE CONTRACTS MENTI ONED THEREIN. IT IS ONLY WHERE THE CONTRACT CONTAINS ALL THE SIX FEATURES ME NTIONED IN SHRIMANT SHAMRAO SURYAVANSHI (SUPRA) THAT THE SECTION APPLI ES AND THIS IS WHAT IS MEANT BY THE EXPRESSION OF THE NATURE REFERRED TO IN SECTION 53A. THIS EXPRESSION CANNOT BE STRETCHED TO REFER TO AN AMEND MENT THAT WAS MADE YEARS LATER IN 2001 SO AS TO THEN SAY THAT THOUGH REGISTRATION OF A CONTRACT IS REQUIRED BY THE AMENDMENT ACT OF 2001 YET THE AF ORESAID EXPRESSION OF ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 8 THE NATURE REFERRED TO IN SECTION 53A WOULD SOMEHO W REFER ONLY TO THE NATURE OF CONTRACT MENTIONED IN SECTION 53A WHICH WOULD THEN IN TURN NOT REQUIRE REGISTRATION. AS HAS BEEN STATED ABOVE THER E IS NO CONTRACT IN THE EYE OF LAW IN FORCE UNDER SECTION 53A AFTER 2001 UNL ESS THE SAID CONTRACT IS REGISTERED. THIS BEING THE CASE AND IT BEING CL EAR THAT THE SAID JDA WAS NEVER REGISTERED SINCE THE JDA HAS NO EFFICACY IN T HE 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 L EGAL GROUND IT IS UNNECESSARY FOR US TO GO INTO THE OTHER QUESTIONS D ECIDED BY THE HIGH COURT NAMELY WHETHER UNDER THE JDA POSSESSION WAS OR WAS NOT TAKEN; WHETHER ONLY A LICENCE WAS GRANTED TO DEVELOP THE P ROPERTY; AND WHETHER THE DEVELOPERS WERE OR WERE NOT READY AND WILLING T O CARRY OUT THEIR PART OF THE BARGAIN. SINCE WE ARE OF THE VIEW THAT SUB-CLAU SE (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. 22. THE OBJECT OF SECTION 2(47)(VI) APPEARS TO BE TO BRIN G WITHIN THE TAX NET A DE FACTO TRANSFER OF ANY IMMOVABLE PROPERTY. THE EXPRESSION ENABLING THE ENJOYMENT OF TAKES COLOR FROM THE EARL IER EXPRESSION TRANSFERRING SO THAT IT IS CLEAR THAT ANY TRANSAC TION WHICH ENABLES THE ENJOYMENT OF IMMOVABLE PROPERTY MUST BE ENJOYMENT AS A PURPORTED OWNER THEREOF. THE IDEA IS TO BRING WITHI N THE TAX NET TRANSACTIONS WHERE THOUGH TITLE MAY NOT BE TRANSFERR ED IN LAW THERE IS IN SUBSTANCE A TRANSFER OF TITLE IN FACT. 23. A READING OF THE JDA IN THE PRESENT CASE WOULD S HOW THAT THE OWNER CONTINUES TO BE THE OWNER THROUGHOUT THE AGREEMENT AND HAS AT NO STAGE PURPORTED TO TRANSFER RIGHTS AKIN TO THE MAXIM NOS CITUR A SOCIIS HAS BEEN REPEATEDLY APPLIED BY THIS COURT. A RECENT APPLICATI ON OF THE MAXIM IS CONTAINED IN COASTAL PAPER LIMITED V. COMMISSIONER OF CENTRAL EXCISE VISAKHAPATNAM (2015) 10 SCC 664 AT 677 PARA 25. T HIS MAXIM IS BEST EXPLAINED AS BIRDS OF A FEATHER FLOCKING TOGETHER. THE MAXIM ONLY MEANS THAT A WORD IS TO BE JUDGED BY THE COMPANY IT KEEPS QWNERSHIP TO THE DEVELOPER. AT THE HIGHEST POSSESSION ALONE IS GIVE N UNDER THE AGREEMENT AND THAT TOO FOR A SPECIFIC PURPOSE THE PURPOSE B EING TO DEVELOP THE PROPERTY AS ENVISAGED BY ALL THE PARTIES. WE ARE THEREFORE OF THE VIEW THAT THIS CLAUSE WILL ALSO NOT ROPE IN THE PRESENT TRANSACTION. 24. THE MATTER CAN ALSO BE VIEWED FROM A SLIGHTLY DIFFERENT ANGLE. SHRI VOHRA IS RIGHT WHEN HE HAS REFERRED TO SECTIONS 45 AND 48 OF THE INCOME TAX ACT AND HAS THEN ARGUED THAT SOME REAL INCOME MUST ARI SE ON THE ASSUMPTION THAT THERE IS TRANSFER OF A CAPITAL ASSE T. THIS INCOME MUST HAVE BEEN RECEIVED OR HAVE ACCRUED UNDER SECTION 48 AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET. 27. IN THE FACTS OF THE PRESENT CASE IT IS CLEAR THAT THE INCOME FROM CAPITAL GAIN ON A TRANSACTION WHICH NEVER MATERIALIZED IS AT BE ST A HYPOTHETICAL INCOME. IT IS ADMITTED THAT FOR WANT OF PERMISSION S THE ENTIRE TRANSACTION OF DEVELOPMENT ENVISAGED IN THE JDA FELL THROUGH. IN POINT OF FACT INCOME DID NOT RESULT AT ALL FOR THE AFORESAID REASON. THI S BEING THE CASE IT IS CLEAR THAT THERE IS NO PROFIT OR GAIN WHICH ARISES FROM T HE TRANSFER OF A CAPITAL ASSET WHICH COULD BE BROUGHT TO TAX UNDER SECTION 45 READ WITH SECTION 48 OF THE INCOME TAX ACT. 28. IN THE PRESENT CASE THE ASSESSEE DID NOT ACQU IRE ANY RIGHT TO RECEIVE INCOME INASMUCH AS SUCH ALLEGED RIGHT WAS DEPENDEN T UPON THE ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 9 NECESSARY PERMISSIONS BEING OBTAINED. THIS BEING TH E CASE IN THE CIRCUMSTANCES THERE WAS NO DEBT OWED TO THE ASSESS EES BY THE DEVELOPERS AND THEREFORE THE ASSESSEES HAVE NOT ACQUIRED ANY RIGHT TO RECEIVE INCOME UNDER THE JDA. THIS BEING SO NO PROFITS OR GAINS A ROSE FROM THE TRANSFER OF A CAPITAL ASSET SO AS TO ATTRACT SECTIONS 45 AND 48 OF THE INCOME TAX ACT. FROM THE OBSERVATION OF THE APEX COURT IT CAN BE EASIL Y CONSTRUED THAT IF AN AGREEMENT TO SELL IS NOT REGISTERED THEN IT SHALL HAVE NO EFFECT IN LAW FOR THE PURPOSES OF SECTION 53A. IN SHORT THERE IS NO AGREEMENT IN THE EYES OF LAW WHICH CAN BE ENFORCED UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT AND THAT IN ORDER TO QUALIFY AS A TRANSFER OF A CAPITAL ASSET UNDER SECTION 2(47)(V) OF THE ACT THERE MUST BE A CONTRACT WHICH CAN BE ENFORCEABLE IN LAW UND ER SECTION 53A OF THE TRANSFER OF PROPERTY ACT. ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSSESSION OF ANY IMMOVABLE PROPERTY T O BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATU RE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT 1882 ( 4 OF 1882) CAN ONLY BE SUBJECTED TO TAXATION. A READING OF SECTION 17(1A) AND SECTION 49 OF THE REGISTRATION ACT SHOWS THAT IN THE EYES OF LAW THAT AS UNREGISTERED AGREEMENT THERE IS NO CONTRACT WHICH CAN BE TAKEN COGNIZANCE OF FOR THE PURPOSE SPECIFIED IN SECTION 53A. THEREFORE IT CAN BE EASILY CONSTRUED AS HAS BEEN STATED ABOVE THERE IS NO CONTRACT IN THE EYE OF LAW IN FORCE UNDER SECTION 53A AFTER 20 01 UNLESS THE SAID CONTRACT IS REGISTERED. WHILE COMING TO THE INSTANT CASE UNDISPUTEDLY THE AG REEMENT TO SELL WAS NOT REGISTERED AND IN LAW WITHOUT REGISTERING AGREEMENT TO SELL AND /OR THE SALE DEED THE SAME CAN NOT BE RELIED UPON FOR ANY PURPOSES THEREFORE CLAIM OF THE ASSESSEE THAT THE ASSEEEE GOT MONEY FROM HIS FATHER ON THE BASIS OF AGREEMENT TO SELL WHICH UNDISPUTEDLY UNREGISTERED CAN NOT BE RELIED UPON HENCE CLAIM OF TH E ASSEEEE QUA UNREGISTERED DOCUMENTS DOES NOT SURVIVE. ITA NO.425 (ASR)/2015 ASST. Y EAR:2009-10 10 CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CA SE IN HAND WE ARE OF THE CONSIDERED OPINION THAT AT THE MA XIMUM THE AMOUNT WHICH GENERATED FROM THE REGISTERED SALE DEEDS CA N BE TAKEN INTO CONSIDERATION TO BE RECEIVED BY THE ASSESSEES FATHER AND GIVEN TO THE ASSESSEE AS GIFT. HENCE WE FEEL IT APPROPRIATE TO REM AND THE CASE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE REGI STERED SALE DEEDS ONLY AND DEDUCT THE CONSIDERATION AMOUNT THEREOF FROM THE AMOUNT OF RS.9 00 000/- AS ADDED IN THE ASSESSMENT ORDERS. IN VIEW OF THE AFORESAID DIRECTIONS THE APPEAL IS ALLO WED FOR STATISTICAL PURPOSES. HOWEVER IT IS CLARIFIED THAT ASSESSING OFFICER IS RESTRICTED TO DEAL WITH THE ISSUE UNDER CONSIDERATION AS O BSERVED ABOVE ONLY BUT NOT OTHERWISE AND THE ASSESSEE IS ALSO NOT ENTITLED TO RAISE ANY OTHER GROUND OR ISSUE BEFORE THE ASSESSING OFFI CER. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:30.11.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A) (4) THE CIT (5) THE SR DR I.T.A.T. TRUE COPY BY ORDER