Section 2(47)(v) of the Income Tax Act
The decision most relied on for Section 2(47)(v) is CIT v. Balbir Singh Maini (398 ITR 531), cited in 228 of the 331 judgments on BharatTax that turn on this section.
Leading authorities on Section 2(47)(v)
A transfer of immovable property, for the purpose of capital gains under section 2(47)(v) of the Income-tax Act, occurs only when the agreement allowing possession in part performance of a contract is a registered instrument, as mandated by Section 53A of the Transfer of Property Act.
For capital gains purposes, a 'transfer' under section 2(47)(v) occurs and capital gains arise in the year when possession of the property is handed over in part performance of a contract, such as a joint development agreement. This was the settled position before the specific provisions of section 45(5A) were introduced.
A taxpayer can raise a plea that their income is not taxable, even if they have previously made an agreement regarding the quantification of taxable income. The principle of estoppel does not apply against a settled position in law.
Tax authorities are obligated to act in accordance with the law and ensure only legitimate taxes are collected, assisting assessees who have been over-assessed due to mistake or misconception.
There can be no estoppel against the statute, meaning tax cannot be levied or collected without express authority of law. An appellate authority may adjudicate additional claims or legal contentions to ensure the correct tax liability is determined.
Tax authorities are mandated to correctly determine the legitimate taxable income according to the law, and no tax can be levied or collected unless explicitly permitted by statute, irrespective of the assessee's admissions or acquiescence. The appellate authority should adjudicate additional claims to ensure the correct tax liability is arrived at.
Income tax authorities are obligated to assist assessees who are over-assessed due to mistake, misconception, or lack of proper instruction, ensuring only legitimate taxes are collected.
A tax cannot be levied if it is not permitted under the Act, even if the doctrine of estoppel might otherwise apply. There can be no estoppel against a statute, and a party is entitled to relief if tax is levied or collected without legal authority.
An assessment made on an assessee under a different status than what was specified in the notice is illegal and without jurisdiction. The assessee must be put on notice and invited for objections if the Assessing Officer proposes to assess them under a different status.
Judicial discipline requires consistency in legal interpretation. Once a view is taken in a particular year, and absent contrary material, the same view should be followed to ensure finality in litigation.
