ITO 34(1)(4), MUMBAI vs. HOMAI HOMI SHROFF, MUMBAI

Ms. Homai Homi Shroff ITO 34(1)(4), R. No. 106,1st floor, Aderbad Flat No. 23, 24, बिधम/ Hughes Rd, Pratyakshakar Bhavan, Vs. Mumbai-400007. BKC Bandra(east), Mumbai-400051 स्थायीलेखासं./जीआइआरसं./ PAN No. AAFPS4218R (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri M. C. Omi Ningshen, DR प्रत्यथीकीओरसे/Respondent by : Shri Farukh Irani and Shri Falee H. Bilimoria, AR सुनवाईकीतारीख/ : 17.04.18 Date of Hearing घोषणाकीतारीख / : 26.04.18 Date of Pronouncement आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

(i) "On the facts and circumstances of the case and in law learned CIT(A) ignored thefact that, to prove the transfer, the assessee was failed to produce any sale Agreement. The assessee was not executed any sale agreement for relinquishment of the tenancy rights which is mandatory for transfer of immovable property. Further, an ‘Irrecoverable General Power of Attorney" was furnished by the assessee, which was neither Notarized nor Registered. The Power of Attorney was signed by the assessee and jointly family members and not even signed by the appointees i.e. purchasers".

(ii) " On the facts and circumstances of the case and in law learned CIT(A) erred in allowing the benefit to the assessee u/s. 54F of I.T. Act, 1961 without appreciating the facts that, the assessee failed to produce any documentary evidence in support of the proof of purchase of immovable property and any nexus between the receipt amount and investment amount".

(iii) "The Ld.CIT(A) has also failed to appreciate the fact, that the assessee has made the payment of Rs. 17,25,000/- to the other co-tenants on self made receipts which is not considered as genuine as the Ms. Homai Homi Shroff same was not reflected in their Return of Income which are placed on records."

(iv) "The Appellant prays that the order of the Ld CIT(A) on the above grounds be set aside and that of the AO be restored"

(v) "The Appellant craves leave to amend or alter any ground or add a new ground"

Ms. Homai Homi Shroff Aggrieved by the order of Ld. CIT(A), the revenue has filed the present appeal before us on the grounds mentioned hereinabove.

Ground No. (i) to (iii).

After considering the facts of the present case, we find that the claim of the assessee was disallowed only on the ground that the documents on which the assessee was relying, was not registered. The fact that the documents was not registered, cannot be a ground to disallow, the very right of the assessee. In this respect, Ld. CIT(A) had relied upon the judgments contained in its orders and more particularly the judgment of Chaturbhuj Dwarkadas Kapadia Vrs. CIT (260 ITR 491) wherein such transfer of right in the property was recognized by Hon’ble Jurisdictional High Court.

Ld. CIT(A) after considering the entire facts had rightly concluded that assessee had enjoyed a ‘right of possession’ Ms. Homai Homi Shroff which was by way of tenancy and the consideration received of transfer was rightly taxed as ‘capital gain’.

Our attention was also drawn towards page no. 12 of the paper book, which is a receipt, reflecting that the assessee had received a sum of Rs. 47,55,000/- for the transfer of tenancy right in respect of flat no. 7.

Apart from above, our attention was also drawn towards page no. 20 of the paper book which is a sale deed of flat no. 13, executed in favour of the assessee in the month of December 2011. This document goes to show that the assessee had already invested sum of Rs. 48 Lacs towards purchase of new property within the stipulated time as allowed under the Act. Therefore assessee was correctly found entitled to the benefits of section 54F of the I.T. Act.

Moreover, no new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld CIT (A). Therefore, there are no reasons for us to interfere into or deviate from the findings recorded by the Ld. CIT (A). Hence, we are of the considered Ms. Homai Homi Shroff view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, these grounds raised by the revenue stands dismissed.

Ground No. (iv) & (iv) 5. These grounds raised by the revenue are general in nature, thus requires no specific adjudication.