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Income Tax Appellate Tribunal, HYDERABAD BENCHES “B” : HYDERABAD
Before: SHRI S.S.GODARA & SHRI LAXMI PRASAD SAHU
O R D E R PER S.S.GODARA, J.M. :
This Revenue’s appeal for AY.2011-12 arises from the CIT(A)-11, Hyderabad’s order dated 31-01-2020 passed in case No.10154/2018-19, in proceedings u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 [in short, ‘the Act’]. Heard both the parties. Case file perused.
At the outset, we notice that this Revenue’s appeal suffers from delay of 01 day as attributable to the reasons mentioned in the petition/affidavit and on account of no objection from assessee’s side. This delay stands condoned therefore.
The Revenue’s has raised the following substantive grounds in the instant appeal:
1.The ld.CIT(A) erred both in law and on facts of the case in allowing relief to the assessee. 2.The Ld.CIT(A) erred in deleting the addition by holding that the undertaking of the assessee to pay arrear taxes cannot be considered as transfer of ownership when the consent forms between the assessee and M/s.Cyrus Investment Ltd reveal that the assessee has agreed to pay the arrear taxes, charges and expenses in relation to those acts, deeds and things done by the assessee. 3.The Ld.CIT(A) ought to have appreciated the fact that at page No.4 of the sale deed it is observed that the total sale consideration of Rs.5 crores has been has been paid to the assessee which has been acknowledged as a sign of having received the amount. 4.The Ld.CIT(A) failed to appreciate the fact that the owner of an immovable property is liable to pay tax, even if he has not received the sale consideration and in the consent terms it has been explicitly accepted/ agreed by the assessee to pay the arrear tax. 5.The CIT(A) erred in deleting the addition by holding that the consent term does not confer ownership of the property to the assessee even when he has agreed to pay the tax as per consent term and the sale deed itself depicts acceptance of the consideration by the assessee. 6.The appellant craves leave to amend or alter any ground or add any other grounds which may be necessary
Both the learned representatives next invited to the CIT(A)’s detailed discussion deleting un-disclosed income addition of Rs.13,67,30,000/- as under: “5. The ground nos.3 to 7 are against addition of Rs.13,67,30,000/- as capital gains made by the AO. The AO discussed the issue in the order as under: "With reference to the show cause notice, I submit that the proposal of treating the amount of Rs.137,30,000/- being the value stated to be determined by the Registration Authorities for the Stamp Duty Purposes as capital gain u/s 50-C of the Act in my hands for the assessment year under consideration is not correct for the following reasons: That I am the GPA holder on behalf of M/s Cyrus Investments Pvt. Ltd. and thus the. said alleged transfer of property of Ac. 2-33 guntas to M/s Shroff Apparels Pvt. Ltd., Hyderabad cannot be treated as a transfer of asset and no capital gains arisen as per the sale deed dt:26-08-2010 in my hands and, thus, the question of assessing the Capital Gains uls 50C of the Act does not arise; (ii) a) that as per the reasons recorded for issue of notice u/s 148 that M/s Cyrus Investments Pvt. Ltd. has not admitted any capital gains as held in contending that the ownership of the said land is not with the company in view of Hon'ble Mumbai High Court Judgement in Suit No. 643/14 on 28-04-2017; and (b) that as per the enquiries conducted and information gathered by ITO (I&CI) and with the above High court Order, the ownership of the land held as attributable to me and my nominees as per the CPA in favour of me as refereed in the sale deed and the ACIT came to a conclusion that I had sold that land during FY 201041 i.e. on 26-08-2010. "ought to have admitted Capital Gains 011 this land sale as per law considering -rm', provisions u/s 50C or IT Act, " cannot be even nearer to the facts of the case as per the recital of the sale deed dt:26-08-2010 and even as per the Judgement in suit No.643114 before the Hon'ble 1V1umbai High Court settled on 28-04-2017; (iii) That as per para 6(a), (b),(c), (d) and (e) at page No.9 of the Judgement of the Hon'ble Bombay High Court in suit No. 643 of 2014 against me filed by M/s Cyrus Investments Pvt. Ltd., settled on 28- 04-2017 as per consent terms in between me and M/s Cyrus Investments Pvt. Ltd. The attribution made by the ACIT that the ownership of the land-in-question is to myself and to my nominees as per the CPA, can only be a presumption; (iv) That as per recital, it is clear that the sale consideration of Rs. 5 Crores was received by M/s Goldstone Exports Ltd, as per the understanding in between the Vendor and Vendee which company has duly offered its return of income for Asst. Year 2011-12; (v) That as per the clause 6 of the said Deed, the vendor agreed and assured the Vendee that it will indemnify the Vendee company. in the event of any defect in the title of the vendor. (vi) That with regard to sale/assignment deeds registered on various dates in the year 2006 and so on, the issue with regard to payment of Stamp Duty whether in accordance with the value shown in the document or the value as per in the document value of the property fixed by the Registration authorities, whichever happens to be higher as per article20(c) of schedule 1A of IS Act, 1899 r.w.s 47(A) of the said Acts in respect this survey No; entire case of the concerned party approached the Commissioner & Inspector General Registration & Stamps who, in turn, issued clarification that the property was not demarcated but only, share was assigned and the Stamp Duty is to be payable as per the sole consideration mentioned in the said consideration mentioned in the said deed. However, the Govt. of AP Revenue (Ragn.1) Department in its Memo No.262378/Regn. 1(2)
/2005 dt.04-072005 has set-aside the clarification issued by the C&IG of Registration & Stamps. On writ by the other party, the Hon'ble AP High Court has set-aside the Government clarification cited above vide its order in WP No. 15247/2005 dt:28-09-2005. Further, the Hon'ble AP High Court in WI' WA No. 2204/05has set aside the above orders of H.C. of AP in WP No. 15247/2005 dt:28-09- 2005. Again, the other party mentioned above has approached Hon'ble Supreme Court of India in SLP No. 8602/2006 dt:03-07-2006 which has granted Stay against the operation of the order of AP High court in WA No.2204/05 dt.10-02-2006. The Govt. of AP Revenue (Registration) Department has directed to release the pending document duly obtaining bank guarantee for the differential amount of Stamp Duty & Registration fee payable as per article 20(c) of the schedule IA of La Act 1899 r.w.s 47 (A) of the said Act subject to keep the hank guarantee 'valid till the disposal of the case pending before Hon'ble Supreme Court of India in its Civil Appeal No. 76 of 2007 field by the other party on the same issue (LP Seshikumar & others vs. Govt. of AP (Revenue Dept. & others) vide its order dt;01-02-2011 held as under: "The facts of the case have been set out in the impugned judgment and hence we are not repeating the same here On the facts of the case, we are of the opinion that the competent authority under the Indian Stamp Art will determine the Stamp Duty payable on the document question in accordance with law after hearing both parties and uninfluenced by the judgments of the Courts below. We order accordingly." Thus, as per the directions of the .Hon'ble Supreme Court of India, all the concerned parties in 'respect of the transactions relating to above survey numbers as in Civil Suit No.14/1958 has approached the District Registrar, Registration and Stamps Department with a request to estimate the value of the immovable properties i.e. land properties situated in Sy.Nos.1 to 40 of Hasmathpet (V), Serlingampally and Ibrahimpatnam Mandals; Sy.Nos.78 of Hafeezpet (V), Balanagar (M), R.R. District and Sy.No.172 of Hydernagar (V) , Balanagar (M). R.R. District for the purpose of stamp Duty and Registration Fee, which is pending as on date. Thus, from the above, it is clear that the value of the property for the purposes of Stamp Duty was not arrived by the Competent authority of the Registration Sz Stamp' Department as per the directions of the Hon'ble Supreme Court of India as on date, which thus the invoking of provisions u/s 50-C are invalid and are bad-in-law (vii) That the title of the properties in question are in dispute as that the suits filed before the Courts by some of the third parties are pending. Moreover, the properties in-question under the following survey numbers are notified as "prohibited properties" in Rural Prohibited Registrar of Registration and Stamps Department as Government lands by the Government of Telangana
State Sarkari Vide Gazette notification in I 1 Sy.No.78 Ac215.27 guntas covered by E.5/4733/2013/ Serilingampally/ C.S.14/58 Hafeezpet dated 26.09.2013 Govt. land Vide Gazette notification 2 Sy.No.1 Ac.108.28 guntas In 5/4731/2013 Dated 26.09.2013 Covered by G.O.Ms.No.863 3 Sy.No.172 Ac.196.20 guntas Court Stay Gazette notification dated 26.09.2013 (v) Thus, it is to submit that the titles of the properties-in-question as mentioned above are in dispute as on date. Thus the property-in- question in the sale deed (P. 232)75354/11 is also Part & Parcel of the above lands covered under gazette notification in GOMs No. 863 dt:26-09-2013. Hence, the capital gains on the transaction as per the sale/assignment deeds originally and the subsequent transactions on such properties by way of registration with the SROs does not arise capital gains nor the provisions u/s.50C are applicable. Moreover, invoking of deemed provisions u/s 50C of the Act are not applicable, in view of that the value of the properties for the purpose of stamp duty purposes was not so far estimated as on date by the District Registrar, as per the directions of the Hon'ble Supreme Court of India.
In view of the facts submitted above, it is clear that the provisions of section 50C of the Act are not applicable, since the value of property for the purposes of stamp duty was not arrived by the competent authority of the Registration gr Stamps Department as on date, as per the Directions of the Hon'ble Supreme Court of the India.
I, further, submit that the question of titles of the property-in- question are in dispute as on date as per the G.O.Ms No. 863 Gazette notification dt:26-09-2013 of Govt. of Telangana, Telangana State and in view of the same, the question of transfer of capital asset viz., Ac. 2-33 guntas does not arise as per the provisions of section 45 of the Act as well as per the Transfer of Property Act 1882.
However, even though no capital gains was arised, as stated above, as the sate consideration of Rs.5 Crores was received by M/s Gold Stone Exports Ltd, which was duly shown by them in their return of income for Asst. Year 2011-12. Thus, the same cannot be assessed again in my hands, which results in double taxation.
I am enclosing here with the copy of ledger account of M/s. Goldstone Exports Ltd (Now Known as M/s Trinity Ventures Limited) of the amount received by them and copy of confirmation from them that the same has been received by them. I, therefore, request the Ld.ACIT to drop the proposed action as per show cause notice dt.12-11-2018 by accepting the income returned. Thanking, you, Sir, Yours faith fully, 3.0 After considering the assessee's submission, the facts of case, correctness of assessee's claim involving in reference to the issue of registered sale and consequent capital gain and placing reliance on the adjudication to the Hon'ble High Court, the following legible and logical reasoning can be made as per I.T.Act: (i] It is fact on record that the owner of land in question is the assessee Sri P. S. Prasad as informed by ITO(I&CJ), Unit-I, Mumbai read with High Court order in Suit no. 643 of 2014 settled on 28.04.2017. Further, It is a fact on record that the stamp duty is paid on the registered value of Rs. 13,67,00,000/, (a) It is a fact on record that the property is sold by Sri P.S. Prasad through his general power of Attorney vide Sale deed dated 26.8.2010 to M/s Shroff apparels (P) Ltd for a total sale consideration as detailed in sale deed at page 4 of registered sale deed with registered value of Rs.13,67,30,000/- on which stamp duty is paid as per law of registration department. (iii) As per the order passed by the Hon'ble High Court of Mumbai in Suit No. 643 of2014 dated 28.04.2017, the rightful owner of the land- in-question is Sri P S Prasad and his nominees which is clearly brought out in consent terms settled on 28.04.2017 between M/s Cyrus Investments Pvt Ltd and the assessee himself. (iv) Further, it is evident from order passed by the Hon'ble High Court of Mumbai in Suit No. 643 of 2014 read with the consent terms settled on 28.04.2017 between M/s Cyrus Investments Pvt Ltd and the assessee himself that the assessee, Dr. P.S. Prasad, undertakes to pay any arrears of taxes, charges and expenses in relation to acts and deeds done by assessee in respect of the land in question. The relevant extract of High court order is reproduced hereunder for ready reference: (vi) Defendant No.1 hereby undertakes to pay any arrears of taxes, charges (vii) and expenses in relation those acts, deeds and things done by Defendant No.1 in respect of the Nine (9) properties more particularly mentioned in Schedule II of the consent terms hereto save and except what 35 agreed in respect of item No. shown in Plaint (CS.14 of 1958) Schedule i.e. 39, 1.2.4.5 and 8 of Schedule 11 as set-out in these consent terms. (viii) In view of these facts, it is clear that assessee Sri P.S.Prasad having sold the land during F.Y.2010-11 i.e. 26.08.2010 ought to have admitted applicable capital gains on this land sale as per law considering the value of total sale consideration. read with provisions U/s 50C of I. T. Act. Considering the above facts of case and the material available on record read with order passed by the Hon'ble High Court of Mumbai, it is clear that the assessee is having Capital Gains oj Rs .. 13,67,30,000/ - which is accrued to the assessee on the property sold by assessee Sri P.S.Prasad through his general power of Attorney vide Sale deed dated 26.8.2010. Therefore, the capital gains as attributable to the assessee to the extent of Rs.13,67,30,000/- is added as undisclosed additional income to the Returned income of the assessee." 5.1 During the course of appellate proceedings, the appellant submitted as under: 3.1 The AO has erred in considering the fact that the land located at Sy.no.172 of Hydernagar village, Balanagnr Mandal, Ranga Reddy District belongs to the assessee and made an addition of Rs. 13,67,30,000/- on account of undisclosed income under the hear! Capital Gains. The assessing officer has made the addition on ground stating that the appellant has received the consideration towards the sale of the above property to M/s Shroff Apparels Pvt. Ltd., 3.2 It is to submit that the above contention of the assessing officer is not correct because it is a matter of fact and from the documents available on record that the appellant does not owns the above lands and therefore, cannot transfer the above lands. Here in the instant case, the assessee Dr. P.S. Prasad is not the owner of the land in the above referred survey number. This is for a simple reason that nobody can give anything to the other unless lie has one with him. Therefore, the presumption drawn by A.O. is unfound and not sustainable. 3.3 The AO erred in appreciating the fact that the assessee has only acted as General Power of Attorney for M/s Cyrus Investment Ltd, who is the actual owner of the property, in the event of sale transaction for the year under consideration. Ann thus, no Capital Gains is taxable in the hands of assessee arising from the sale of aforesaid property. Moreover, GPA is not the need of convenience and the same cannot be constructed as an instrument of transfer of the property. As per the recitals of the sale deed dt: 26-082010 between M/s Cyrus Investments Pvt Ltd and A1/s Shroff Apparels Pvt Ltd., the assessee is no where connected to the sale of property, except being acted as a General Power Attorney on behalf of M/s Cyrus Investments Ltd. (Copy of Sale deed is Enclosed Vide Paper Book vide Page No.8-15). 3.4 In this regard assessee would like to place his reliance on the following: • Suraj Lamps & Industries Pvt. Ltd Vs. State of Haryana [(2012) 340 ITR 2] The Hon'ble Supreme Court held that "GPA is not a deed of conveyance and hence cannot be construed as (In instrument of transfer in regard to any right, title or interest in the immovable property". • State of Rajasthan Vs. Basani Nahata [(2005) 12 SCC 77] - Hon'ble Supreme Court "142. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the principal. A power of attorney is a document of convenience. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law." 3.5 Thus, from the above, it is clear that the reasons recorded for issue of notice u/s.148 of the Act for this assessment year 2011-12 are not correct and are without satisfaction that income chargeable to tax u/s 50-C of the Act as there 'was no transfer of property u/s 45 of the Act in the hands of the appellant on the strength of the above GPA, which thus the issue of notice uls 148 is invalid and is without jurisdiction. It is, therefore, requested the Ld. Commissioner of Income Tax (Appeals) to hold that the notice issued u/s 148 is invalid and is without jurisdiction and to annul the assessment”. 5.2 I have considered the assessment order and submissions of the appellant. The basis of reopening and the subsequent addition by way of assessing the capital gains in appellant's hands is on the basis that the Hon'ble Bombay High Court in Suit No.643 of 2014 delivered decision on 28.04.2017 wherein the appellant has treated as owner as per consent terms. The contention of the appellant is that the original sale deed is signed by the appellant as GPA holder and not as owner and the decision of Bombay High Court does not confer ownership rights on him in personal capacity.
5.2.1 I have perused the copy of settlement of suit 634 of 2014 and the consent terms filed in the above. The consent terms contain the following undertaking by Mr. P.S.Prasad, the assessee in this appeal. "iv) That since Plaintiff was based in Mumbai (then Bombay) and decided to appoint Defendant No.1, Dr. P.S. Poised, S/o. P.S.Rao, in Hyderabad to manage the immovable properties as set out in the Preliminary Decree, and do all other acts and deeds as mentioned above in Paragraph (4) and more particularly mentioned in each of the said Powers of Attorney as its Constituted Attorney. Disputes arose between the Parties, as mentioned above in Paragraph (5) and Plaintiff and Defendant No. I have now agreed to amicably resolve all the disputes and differences that have arisen between them and therefore agree, confirm, declare and undertake as follows viz :- a) Defendant No.1 hereby confirms, declares and undertakes as under: (i) that he has not (either directly and/or indirectly) in any manner created any third party rights, title or interest nor entered into any agreement! development agreement nor received any consideration from any third party in respect of the properties more particularly set out in Schedule-III to these consent terms; (ii) that since the efforts so far made by Defendant No.1 did not fructify and the properties in any manner could not be dealt with, Defendant No.1 has not created and/or undertaken to create any right, title, or interest in any of the other properties forming a part of Schedule – IV and 1V-A of the preliminary decree and more particularly set out in Schedule III to-these consent terms. (iii) the Plaintiff shall from time to time and at all times hereinafter as provided herein, as a matter of right, be entitled to enter upon and peacefully and quietly to hold, occupy, possess, use and enjoy the said balance Properties along with all appurtenant rights and privileges thereto with Defendant No.1 jointly in the proportion provided in these consent terms without any wit, interruption, claim and demand whatsoever from or by Defendant No.1 or his successors-in-title or assigns. b) Defendant No.1 hereby undertakes to pay any an-ears of taxes, charges and expenses in relation those acts, deeds and things done by Defendant No.1 in respect of the Nine (9) properties more particularly mentioned in Schedule II of the consent terms hereto save and except what is agreed in respect of item No. shown in Pland_(C.S. 14 of 1958) Schedule i.e. 39, 1,2,4,5 and 8 of Schedule 11 as set-out in these consent terms. c) That all costs, charges and expenses including statutory liabilities arising out of acts, deeds and things done by Defendant No. '1 in exercising the powers under the aforesaid Powers of Attorney shall be borne exclusively by Defendant No.1 only. Defendant No.1 undertakes to take full personal responsibility to bear all the expenses/ liabilities towards the acts done or to be done under the said Powers of Attorney and confirms and declare that Plaintiff shall not be liable and/ or responsible in any manner whatsoever in respect of the 9 (nine) properties more particularly set out in Schedule II save an. except what is agreed in respect of item shown in Plaint (C.S . 14 of 1958) Schedule i.e. 39, 1,2,4,5 and 8 of Schedule II as set-out in these consent terms. d) That Defendant No: 1 shall indemnify and hold safe the Plaintiff with regard to the above undertakings as set out herein in relation to all claims, actions and / or proceedings of whatsoever nature arising out of and pertaining to all acts done by Defendant No, 1 (directly and/or indirectly) under the said Powers of Attorney in respect of the properties more particularly mentioned in Schedule II. e) That Defendant No.1 is solely responsible for and takes full personal responsibility for' all the acts, deeds and things done (either directly or indirectly) under the said Powers of Attorney in respect of Properties more particularly described in Schedule II herein and confirms that Plaintiff shall not in any manner liable, and / or responsible for any of the said Acts. Defendant No. I assures the Plaintiff that all the acts, deeds and things done by Defendant No.1 in pursuance of the said Powers of Attorney in respect of Properties more particularly set out in Schedule II herein are valid and/ or not violative of any provisions of law and/ or in breach of any contract based on which Plaintiff accepts the same. The Plaintiff hereby confirms that they shall not use any of the acts, deeds, and things done (either directly or indirectly) by Defendant No.1 under the said Powers of Attorney in respect of the properties more particularly Uploaded on -02/05/2017 Downloaded on - 08/05/2017 17: 14:26. 7 described in Schedule IL Plaintiff hereby accepts the final decrees issued _ v by the High Court at Hyderabad in respect of 9 Properties, which are more particularly described in Schedule U and undertakes that they shall not take any steps to challenge the same under any circumstances whatsoever. Defen.dant No.1 will ensure that the Third Parties (including his family members, friends and group companies) in whose favour Defendant No. I has created rights shall not initiate any civil and I or criminal proceedings and or make any monetary claim against and Defendant No.1 shall defend such proceedings against Plaintiff in such a situation at his own cost in respect of the properties more particularly described in Schedule II subject to what is set-out in these consent terms. f) Defendant No.1 confirms and declares that he has not delegated any of his powers under the said Powers of Attorney to any person/persons. g) It is agreed that from the date of execution of these consent terms, Defendant No. 1 undertakes to act jointly with Plaintiff under the joint Power of Attorney to be executed between the Parties in respect of all further and necessary acts, deeds and things that maybe required to be done in respect of the said properties mentioned in Schedule III. i) That all actions from the date of execution of these consent terms in respect of any of the said properties mentioned in Schedule III (forming part of the said preliminary decree) shall be exercised jointly with the representatives of Plaintiff and Defendant No.1 under the joint Power, of Attorney to be executed by the Parties. j) That the representations made hereinabove above pertaining to the said Properties mentioned in Schedule III (the balance properties) of these consent terms are true and correct. k) Defendant No. 1 does hereby unequivocally agree, confirm and undertake that :- i) Defendant No. I shall only use the said Powers of Attorney solely for the purpose of giving effect to the past transactions done by him in respect of the said properties more particularly mentioned in Schedule II hereto with intimation to Plaintiff; ii) Defendant No.1 shall not use any of the said Powers of Attorney for any other purpose whatsoever or in contravention of and/ or what is agreed to in these consent terms interlaia including the commercial terms agreed herein j) Defendant No. I unequivocally undertakes that he shall not henceforth act, exercise rights under the said Powers of Attorney either himself or by appointing a nominee in respect of the immoveable properties, which are subject matter of the Preliminary Decree, passed by the Hiqh Court in the said Suit more particularly described in SCHEDULE --III hereunder in the manner as agreed herein." 5.2.2 Further, in respect of the subject property it is resolved as under: "i) Defendant No.1 confirms, undertakes and declares that he has, created genuine and bonafide third party rights in respect of the Land in: Hydernagar more particularly set out in the Item 38 of Schedule-. IV hereunder written and Defendant No.1 shall make efforts to retrieve, clear the title and mortgages at his own costs and thereafter make the same available to Plaintiff, for joint development on such terms and conditions as may be mutually agreeable between the parties at the relevant time. (ii) Defendant No. 1 hereby confirms, undertakes and declares to this Hon'ble Court that 4 acres 36 guntas out of the land more particularly set out in the Item 38 Schedule - N hereunder written shall be transferred and/ or assigned to Plaintiff and for its nominees/ assignees on such the terms and conditions as Plaintiff may decide and as and when called upon by Plaintiff along with the V::: Uploaded 017 - 02/05/2017 Downloadet on - 08/05/2017 17:14:26 ::: 1'7 12 transfer of 15 Acres of land as per Clause No. (iii) stipulated below. The stamp duty, registration and other charges for such documents shall be entirely borne and paid by Plaintiff and/ or its nominees as the case may be. iii) Defendant No. 1 hereby confirms, undertakes and declares that 15 acres in the Residential portion out of the land more particularly set out in the Item 38 Schedule - IV hereunder written shall be transferred and/ or assigned to Plaintiff and / or its nominees/ assignees at the rate, which will be mutually agreed between the parties which shall not exceed the present card value under any given circumstances and on the terms and conditions to be mutually agreed between Plaintiff and Defendant No.1. iv) Plaintiff and Defendant No. 1 do hereby confirm that the term sheet setting out the commercial terms & conditions with regard to 15 acres as set out hereinabove in Clause (iii) of complying with the obligations as set out hereinabove in clause shall be arrived at within a period of one month from the date of these Consent Terms. Once the consideration with regard to 15 acres being agreed between Plaintiffs and Defendant No. land upon successful completion of technical & legal due diligence to the satisfaction of Plaintiff, Defendant No. 1 confirms, undertakes and declares that Defendant No. 1 shall execute such documents in respect of the land covered in clause (iii) hereinabove along with the lands as set out in clause (ii) hereinabove either in favour of Plaintiff and / or its nominees/ assignees against payment of the agreed consideration which shall also include the said 4 acres 36 guntas. v) if for any reason whatsoever, the Plaintiff confirms to the Defendant No.1 their inability to proceed with the transaction as set out in clause (iii) hereinabove, then in that event" Defendant No. 1 undertakes upon being called upon to execute the conveyance of 4 acres 36 guntas described in clause (ii) hereinabove I favour of the Plaintiff and or it nominees on such terms and condition as the plaintiff ma decide. " 5.3 On consideration of the above, it is seen that the above consent terms has not conferred any right as owner to the assessee. The consent terms reiterate that the assessee is GPA holder and remains so. The finding of the 'AO' that in terms of the consent terms the appellant is conferred ownership rights is not established. The undertaking of appellant to pay arrears of taxes can not be considered as transfer of ownership. At the best the appellant liable to reimburse the taxes if any payable on account of transactions in the scheduled property. In view of the above, the appellant. is only GPA holder in respect of the above property and the capital gains arising out of the transaction is not assessable in appellant's hands. The addition made is accordingly, deleted”.
5. The first and foremost arguments between the parties before us is qua assessment of the impugned un-disclosed income in assessee’s hands. The Revenue’s case in light of the assessment findings is that the assessee had been declared as the original owner of the property in hon'ble Mumbai high court in suit No.643/2014, dt.28-04-2017. It fails to rebut the clinching fact that the CIT(A) has already examined the terms of dispute in the said civil suit wherein this appellant has been held as a GPA holder only than having title of the asset. We note in this clinching factual backdrop that the learned co- ordinate bench’s order in JCIT Vs. V.D.Seshagiri Rao (2018) [89 taxmann.com 3 (ITAT Hyd) holds that the income arising from transfer of property by the GPA holder would not be taxable in his hands. We therefore affirm the CIT(A)’s action deleting the impugned addition for this precise reason alone.
6. This Revenue’s appeal is dismissed in above terms.
Order pronounced in the open court on 8th September, 2021