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)

CIT v. Balbir Singh Maini
398 ITR 531 · 2017 · Supreme Court
228
citing judgments

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.

Chaturbhuj Dwarkadas Kapadia v. CIT
260 ITR 491 · 2003 · High Court
150
citing judgments

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.

7. CIT v. MR.P.FIRM.MUAR
56 ITR 67 · 1965 · Supreme Court
127
citing judgments

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.

Balmukund Acharya v. DCIT
310 ITR 310 · 2009 · High Court
116
citing judgments

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.

Nirmala L. Mehta v. A. Balasubramaniam, CIT
269 ITR 1 · 2004 · High Court
108
citing judgments

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.

77 ITR 237 (Ker), CIT vs. Bharat General Reinsurance Co. Ltd. (1971) 81 ITR 303 (Del), CIT v. Archana R. Dhanwatey
136 ITR 355 · 1982 · High Court
78
citing judgments

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.

S.R. Kosti v. CIT
77 ITR 237 · 1970 · High Court
47
citing judgments

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.

Dy. CST v. Sreeni Printers
67 SCC 279 · 1987 · Reported
37
citing judgments

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.

CIT v. K. Adinarayana Murthy
65 ITR 607 · 1967 · Supreme Court
28
citing judgments

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.

CIT v. Shivsagar Estate
204 ITR 866 · 1993 · High Court
24
citing judgments

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.

Judgments on Section 2(47)(v)

Mr. Mahesh D. Saini, Mumbai vs. Income Tax Officer Ward-35(2)(3), Mumbai

In the result, the appeal of the assessee is allowed

ITA 1929/MUM/2020[2011-12]Status: DisposedITAT Mumbai10 Aug 2022AY 2011-12

Bench: Shri Pramod Kumar, Vp & Shri Aby T. Varkey, Jm आयकर अपील सं/ I.T.A. No.1929/Mum/2020 (निर्धारण वर्ा / Assessment Years: 2011-12) Mr. Mahesh D. Saini बिधम/ Ito, Ward-35(2)(3) 203, Lukhi Niwas Kailash Room No. 745, 7Th Floor, Vs. Puri, Upper Govind Nagar, Kautilya Bhavan, C-41 To Plot No. 135, Malad (E), C-43, G Block, Bandra Mumbai-400097. Kurla Complex, Bandra (E), Mumbai-400051. स्थधयी लेखध सं./जीआइआर सं./Pan/Gir No. : Aajps1048M (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee By: Shri Haresh B. Shah Revenue By: Dr. Pratap Narayan Sharma (Sr. Ar) सुनवाई की तारीख / Date Of Hearing: 27/06/2022 घोषणा की तारीख /Date Of Pronouncement: 10/08/2022 आदेश / O R D E R Per Aby T. Varkey, Jm: This Is An Appeal Preferred By The Assessee Against The Order Of The Ld. Commissioner Of Income Tax (Appeals)-46, Mumbai Dated 28.02.2020 For Assessment Year 2011-12. 2. The Main Grievance Of The Assessee Is Against The Action Of The Ld. Cit(A) In Confirming The Addition Of Rs.1,05,37,002/- As Long Term Capital Gain (Ltcg) Treating The Purported Capital Asset As Transfer In View Of The Provisions Of Section 2(47) (V) Of The Income Tax Act, 1961 (Hereinafter “The Act”) R.W. Section 53A Of The Transfer Of Property Act, 1882 (4 Of 1882) (Hereinafter In Short As “Topa”). 3. Brief Facts Of The Case As Noted By The Ld. Cit(A) Is That The Ao Noticed That During The Year, The Assessee Jointly With His Two (2) Brothers, Viz Shri Formal Dedrajmali Alias Sainik/Siani & Shri Kailash Dedraj Mali Alias Sainik/Saini, Entered Into Sale Cum

For Appellant: Shri Haresh B. ShahFor Respondent: Dr. Pratap Narayan Sharma (Sr
Section 2(47)Section 50CSection 53A