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Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI G.S.PANNU & SHRI RAVISH SOOD
ORDER PER G.S.PANNU,A.M:
The captioned appeal filed by the assessee pertains to assessment year 2011-12 is directed against an order passed by CIT(A)- 36, Mumbai dated 08/11/2016, which in turn, arises out of an order passed by the Assessing Officer under section 144 r.w.s. 147 of the Income Tax Act, 1961 (in short ‘the Act’) dated 21/03/2014.
The assessee has raised the following Grounds of appeal:-
“The Grounds of Appeal set out below are without prejudice to each other: 1(a) On the facts and in the circumstances of the case and in law, the learned authorities below erred in charging to income tax the Long Term Capital Gains of Rs. 66,42,023/- u/s. 45 of the Income Tax Act, 1961 and the reasons assigned for doing so are wrong and contrary to the facts and circumstances of the case, the provisions of Income Tax Act, 1961, and the Rules made there under. 1(b) On the facts and in the circumstances of the case and in law, the authorities below failed to appreciate that the capital gain is chargeable to tax in the previous year 2011-12 being the transfer of capital asset completed on receipt of the entire consideration amount and not on the date of registration of sale deed, which is wrong and contrary to the facts and circumstances of the case, the provisions of Income Tax Act, 1961, and the Rules made there under. 2(a) On the facts and in the circumstances of the case and in law, the learned authorities below ought to have allowed the exemption of long term capital gain under section 54 of the Income Tax Act, 1961 being capital gain utilised for purchase of residential house within the prescribed time limit and not doing so is wrong and contrary to the facts and circumstances of the case, the provisions of Income Tax Act, 1961, and the Rules made there under. 2(b) The appellant prays that, the provisions of section 54 are beneficial provisions and are to be considered liberally in the aspect of limitation period.
3. On facts and in circumstance of the case and in law, the Ld. CIT(A) erred in charging interest u/s 234A of the Act and doing so is wrong and contrary to the facts and circumstances of the case, provisions of Income Tax Act, 1961, and Rules made thereunder.
4. On facts and in circumstance of the case and in law, the Ld. CIT(A) erred in charging interest u/s 234B of the Act and doing so is wrong and contrary to the facts and circumstances of the case, provisions of Income Tax Act, 1961, and Rules made thereunder.
5. On facts and in circumstance of the case and in law, the Ld. CIT(A) erred in charging interest u/s 234C of the Act and doing so is wrong and contrary to the facts and circumstances of the case, provisions of Income Tax Act, 1961, and Rules made thereunder.
6. On facts and in circumstance of the case and in law, the Ld. CIT(A) erred in initiating penalty proceedings under section 271(1)(c) and not doing so is wrong and contrary to the facts and in the circumstances of the case, provisions of the Income Tax Act, 1961 and Rules made thereunder.”
At the outset, it was noted that the appeal of the assessee is delayed by 33 days, for which assessee has made an application seeking condonation of delay. The Ld.Representative for the assessee pointed out that the delay was unintentional, inasmuch as, assessee himself is a senior citizen and at the relevant point of time, assessee’s father-in-law passed away and he was involved in performing the rituals. Thus, there was a delay in 33 days in filing of the appeal, which may be condoned considering the unintended reasons explained.
3.1 The Ld. Departmental Representative has not assailed the bonafides of the reasons advanced by the assessee.
3.2 Considering the explanation furnished, we hereby condone the delay in filing the appeal and accordingly both the parties were heard on the issues raised in the appeal.
In brief, the relevant facts are that assessee alongwith his wife jointly owned a flat in Vandana Co-operative Society Ltd., Andheri, Mumbai. At the stage of assessment proceedings, there was no appearance by the assessee and, therefore, on the basis of the Individual Transaction Statement, the Assessing Officer treated an amount of Rs.1,03,05,000/- received by the assessee on sale of immovable property as income from other sources. Before the CIT(A), assessee made detailed submissions and furnished appropriate evidence and pointed out that the impugned sum was received as a consequence of sale of the aforesaid property, and could not be assessed as income from other sources. The CIT(A) called for a Remand Report from the Assessing Officer. In the Remand Report furnished by the Assessing Officer, the long term capital gain was computed at Rs.66,48,023/- after considering the sale consideration of Rs.1,03,05,000/- and reducing therefrom the indexed cost of acquisition, etc. of Rs.36,62,977/-. Before the CIT(A), assessee also put- forth a claim for exemption under section 54 of the Act with respect to investment made in the purchase of a new residential house (flat). The CIT(A) accepted the working of long term capital gain and deleted the addition of Rs. 1,03,05,000/- made under the head ‘other sources’. So, however, he did not allow the claim of exemption under section 54 of the Act.
In the above background, the assessee is in appeal before us. Before us, assessee has raised a preliminary plea, which was hitherto not raised before the lower authorities, which is to the effect that during the year under consideration there was no “transfer” of a capital asset so as to trigger the provisions of Capital Gains tax. In this context, the learned representative pointed out that though the sale of flat was in terms of an agreement dated 28.03.2011, a date which fell within the previous year relevant to the assessment year under consideration, but having regard to the terms and conditions of the agreement, the transfer was not complete. On the basis of the relevant clauses of the agreement, which is placed in the Paper Book at pages 5 to 28, it was pointed out that the transfer was to be effected only after the peaceful and vacant possession of the flat was handed over against receipt of the full and final consideration from the buyer. The learned representative pointed out that out of the total consideration of Rs.1,03,05,000/-, only a sum of Rs.5,00,000/- was received on 28.3.2011, whereas the full consideration was received only on 31.5.2011; and, it is on that date that the peaceful and vacant possession of the flat was handed over to the buyer. The learned representative also pointed out that so far as the assessee is concerned, he had filed the return of income for Assessment Year 2012-13 on 26.9.2013 wherein Long Term Capital Gain on sale of the impugned flat was declared. The return of income for Assessment Year 2012-13 was filed considering the effective date of sale as 31.5.2011 and the fact that assessee had deposited an amount of Rs.65,00,000/- in the Capital Gains scheme account and invested in purchase of new flat; the purchase was done before filing of return of income for Assessment Year 2012-13, and net income under the head ‘Capital Gains’ for Assessment Year 2012-13 was declared at NIL, after claiming deduction u/s 54 of the Act. In support of his proposition, the learned representative has referred to various recitals of the agreement to justify that the event of transfer has taken place in the subsequent assessment year. On the point of law, reliance has been placed on the following decisions :- i) CIT vs. Geetadevi Pasari, of 2007 dated 10.7.2008 (Bombay High Court); ii) Dr. Arvind S. Phadke vs. Addl. Commissioner of Income-tax, [2014] 46 taxmann.com 335 (Pune – Trib); iii) Smt. Raj Rani Devi Ramna vs. Commissioner of Income-tax, 201 ITR 1032 (Patna High Court); and iv) Ajay Kumar Shah Jagati vs. Commissioner of Income-tax, [2008] 168 taxman 53 (SC)
6. On the other hand, the ld. DR appearing for the Revenue pointed out that the said plea was not before the lower authorities and, in fact, the CIT(A) has clearly denied the claim of exemption u/s 54 of the Act and the Capital Gains have been brought to tax based on the Remand report furnished by the Assessing Officer.
We have carefully considered the rival submissions. Ostensibly, at the level of the Assessing Officer it transpires that in the absence of any appearance by the assessee, the amount of Rs.1,03,05,000/- appearing in the Individual Transaction Statement was treated as income from other sources. It is only before the CIT(A) that the assessee furnished the material and evidence to show that the amount represented the sale price of the property sold by the assessee. The CIT(A) has called for a Remand report from the Assessing Officer, who also accepted the nature of the impugned sum as being the sale price for the property sold. The Assessing Officer computed the Long Term Capital Gains at Rs.66,48,023/-, which has been accepted by the CIT(A). However, the CIT(A) has not accepted the plea of the assessee of having invested the Capital Gains in the purchase of a new residential flat for the reasons assigned in his order. Before us, a pertinent plea has been raised, which goes to the root of the assessability of Long Term Capital Gains in the instant year. Sec. 45 of the Act prescribes for taxation of profits and gains arising from the transfer of a capital asset in “the previous year in which the transfer took place”. The contention of the assessee is that transfer of the flat jointly owned by him with his wife in Vandana Co-operative Housing Society, Andheri, Mumbai has not taken place in the instant year. In support, reference has been made to various clauses of the Agreement for Sale dated 28.03.2011. Notably, clause 5, 6, 11 to 13 of the Agreement have been specifically referred to, which read as under :-
“5. The TRANSFERORS shall deliver to the TRANSFEREE vacant and peaceful possession of the Flat alongwith the permanent fixtures and fittings, on completion of the sale i.e. on receipt of the full and final consideration mentioned hereinabove.
The TRANSFERORS undertake to pay and clear off the charges payable to the Society by way of Municipal Taxes and other Society outgoings/dues or any other dues of any nature whatsoever relating to the Said Flat up to the date of handing over the possession of the Said Flat to the TRANSFEREE.
11. The sale shall be completed on receipt of the full and final consideration from the TRANSFEREE by the TRANSFERORS as provided in Clause 2 hereinabove against the TRANSFERORS handing over the peaceful and vacant possession of the Said Flat to the TRANSFEREE and further documents for more perfectly transferring the right, title and interest in respect of the Said Flat together with the benefits of the deposit money, sinking fund or any other deposits lying credited with the society/local authority in respect of the Said Flat in favour of the TRANSFEREE.
On receiving full and final consideration the TRANSFERORS hereby relinquish and surrender all their rights, title and interest in the membership of the said Society, the Share Certificate and the Said Flat in favour of the TRANSFEREE forever.
On receiving full and final consideration the TRANSFERORS will hand over all their original documents along with the Original Share Certificate pertaining to the Said Flat to the TRANSFEREE.”
According to the learned representative, the possession of the property and the receipt of the full consideration from the buyer have taken place on 31.05.2011, a date which falls in the next assessment year. The aforesaid clauses bring out that the Agreement for Sale dated 28.03.2011 envisages that the sale would be completed only on receipt of full and final consideration. Clause 11 of the Agreement, which we have reproduced above, is quite clear on this point. Insofar as the proposition being sought to be canvassed by the assessee is concerned, the same is prima facie supported by the judgment of the Hon'ble Supreme Court in the case of Ajay Kumar Shah Jagati (supra) wherein it is laid down that in order to understand the meaning of the word ‘transfer’, possession is an essential element to be taken into consideration. Before proceeding to adjudicate the plea of the assessee in a full blown manner, in our view, the same is required to be properly examined by the lower authorities which, in the present case, has not been done. Ostensibly, the said plea was not before the lower authorities and is sought to be raised only before us. At the time of hearing, the learned representative has also referred to certain additional evidences, which were not before the lower authorities, but which according to him are crucial to adjudicate the said controversy in the proper perspective. Such evidences are the following :- i) Receipt dated 31.05.2011 for full and final payment received from purchaser. ii) Confirmation dated 31.05.2011 for handing over the original documents to the purchaser. iii) Possession letter dated 31.05.2011 for handing over vacant possession of Flat to the purchaser. iv) Bank statement reflecting payments of Rs.18,00,000 for purchase of new flat.
In our opinion, the plea sought to be raised by the assessee goes to the root of the jurisdiction of the Assessing Officer to assess the Capital Gains in the instant assessment year. Notably, the import of the expression “transfer” for the purposes of Sec. 45(1) of the Act is required to be adjudicated at the threshold itself, before proceeding to tax the income from Capital Gains. Since this plea was hitherto not before the lower authorities and, it being pertinent to arrive at the correct tax-liability of the assessee, we deem it fit and proper to admit such plea and restore the matter back to the file of the Assessing Officer who shall consider the plea of the assessee afresh, as per law. Needless to mention, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard and only thereafter pass an order on the entire aspect relating to income under the head Capital Gains in accordance with law.
Since we have set-aside the matter on the preliminary aspect itself, the other dispute raised by the assessee with respect to the denial of deduction u/s 54 of the Act is not being dealt with on merits, which shall be open before the Assessing Officer.
Resultantly, the appeal of the assessee is allowed, as above.
Order pronounced in the open court on 25th September, 2017.