IN INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA (Before Sri J. Sudhakar Reddy, Accountant Member & Sri S.S. Viswanethra Ravi, Judicial Member) I.T.A. No. 17/Kol/2016 Assessment Year: 2009-10 Dr. Raghib Husnain Appellant 12, Abdul Halim Lane Kolkata 700 016 [PAN : AARPH 4694 R] Vs. Income Tax Officer, Ward-55(3), Kolkata. Respondent Appearances by: Shri V.N. Datta, Advocate, appeared on behalf of assessee. Shri Sandeep Lakra, JCIT, D/R appearing on behalf of Revenue. Date of concluding hearing : August 22nd, 2019 Date of pronouncing order : August 30th, 2019 ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by assessee is directed against order of ld. Commissioner of Income Tax (Appeals) - 6, (hereinafter ld. CIT (A) ), passed u/s 250 of Income Tax Act, 1961 (the Act ), dt. 27/11/2015, for Assessment Year 2009- 10. 2. facts of case, as given by assessee in statement of facts before ld. CIT(A) along with From No. 35 is extracted for ready reference:- assessee is medical profession derives income from salary, House property, other source, agriculture income and long term capital gain. return was filed on 30.03.2010 declaring taxable income at Rs.9,54,700/- assessee Officer misconceived and misplaced real fact in determining long term capital declared by assessee in return resulting in bifurcation long term capital into long term capital gain and short term capital gain. brief fact that assessee had contacted with Sri Narendra Kumar Duggar for purchasing land situated at 53 Hazra Road, Kolkata and had taken all interest, right & title by agreement on 29.06.2004. Sri Narendra Kumar Duggar had acquired all right, title and interest from five owners (Sri Ajit Kumar Das, Bijit Kumar Das and others) of undivided property situated at 53 Hazra Road, Kolkata by agreement of sale on 28.08.1988 & 27.12.1989. Sri Narendra Kumar Duggar had no option but to file suit interalia or specific performance for said agreement for sale and other consequential relief in year 1991 for 2 I.T.A. No. 17/Kol/2016 Assessment Year: 2009-10 Dr. Raghib Husnain completing transaction as per said agreement for sale and said suit was Title Suit No 12 of 1991. matter was still pend pending ing at time acquiring right, title and interest of above said property on 29.06.2004 by assessee from Sri Narendra Kumar Duggar. In spite of matter pending above suit before civil court, one of five co-owners owners Sri Ajit Kumar Das had illegally transferred his 1 1/5th 5th undivided right, title and interest to Sri Braja Ballav Paul on 8.12.2004 and as such said transferred of right, title and interest was illegal and void. Further undivided right, title and interest which was already transferred to Sri Narendra Kumar Duggar cannot create new things by transferring to another person without cancelling agreement with concern parties and and/ without and/or order of court particularly when suit was filed and was pending. assessee sessee as well as Sri Braja Ballav Paul had no option to avoid further litigation assessee had to made further payment to Sri Braja Ballav Paul on 9.06.2006 in addition to caution money payment made by Sri Narendra Kumar Duggar and accordingly deed was made. Hence entire transaction on fact and circumstances is Long term Capital Gain and gain arising out of that transaction would be treated as Long term Capital Gain. assessee sold above said property on 28.04.2008 and accordingly assessee had declared income as long term capital gain as well as expenses was made since as per Transfer of Property Act ownership in property was transferred in name of assessee on date of contract is made i.e. on 29.06.2 29.06.2004 004 and transferee has paid consideration or willing to perform his part of contract. Being aggrieved by order present appeal is preferred. preferred. 3. Assessing Officer in his order passed u/s 143(3) of Act on 30/3/2011, has refused to take date of 29/06/2004, that is date of sale agreement, as date of purchase of property. He took deed of conveyance, dt. 12/06/2006, as date of acquisition. As date of sale was 24/08/2008, Assessing Officer cam came to conclusion that gain in question is short term capital gain. On appeal, ld. First Appellate Authority, upheld order of Assessing Officer. 4. Aggrieved assessee is in appeal before us. 5. ld. Counsel for assessee, before us, submitted as follows:- follows: a) capital asset being house property was transferred by agreement of sale dt. 29/06/2004 and possession therein was also delivered to assessee on 29/06/2004. It was subsequently on 12th January, 2006, that 3 I.T.A. No. 17/Kol/2016 Assessment Year: 2009-10 Dr. Raghib Husnain deed of sa sale was executed. Thus, Section 53A of Transfer of Property Act, read with Section 2(4 2(47) of Income Tax Act, mandates that, date of acquisition be taken as 29/06/2004. 5.1. ld. D/R, on other hand, submitted that this Bench of Tribunal in case of Arif Husnain, Kolkata v. ITO, Ward Ward-32(1), Kolkata in ITA No. 1949/Kol/2014, Assessment Year 2009-10, 10, order dt. 10/02/2016, who is one of co-owners co of this property,, held that transfer in question resulted in short term capital gain and hence issue is covered against assessee. 6. We find that Tribunal in case of Arif Husnain (supra), one of co-owners co of this property, held as follows: follows:- 6. I have considered rival submissions and also perused relevant material available on record. As right rightly pointed out by ld. D.R. from relevant portion of he assessment order that one one-fifth of property at 53, Hazra Road, Kolkata was earl ier owned by one Shri Ajit Kumar Das and same wass transferred to Shri Braja Ballav Paul by Deed of Conveyance executed on 08.12.2004 as found by Assessing Officer icer from relevant land record record.. Since said Shri Braja Ballav Bal Paul, who became owner ner of property only on 08.12.2004 and transferred same s to assessee and other ffive persons by way of sale agreement only on 27.06.2006, there was transfer of property in favour of assessee and other five ive owners only on 27.06.2006 and creation of somee right or interest by earlier owner Shri Ajit Kumar Das in favour of Shri Narendra Kumar Dugar and assignment of said right by Shri Narendra Kumar Dugar to assessee and other five persons cannot be regarded as transfer of proper property within meaning of section 2(47) as rightly right held by authorities below. In case of Sanjeev Lal (supra) cited by ld. Counsel for assessee, facts involv involved were entirely different ferent from facts of assessee s case, inasmuch as, agreement to sale in respect of capital asset in that case had been executed on December 27, 2002 for transferring residential house and although though sum of Rs.15 lakhs was also paid by way of earnest money, sale deed could not be executed because oof pendency of litigation. In these facts and circumstances, which were beyond control of assessee, Sale Deed could not be executed and taking note of same, it was held by Hon ble Supreme Court that there was transfer of some rights in respect of capital asset. Similarly Simi in case of Mrs. Madhu Kaul (supra) cited by ld. Counsel for assessee, f lat was allotted lotted to assessee on June 07, 1986 by letter conveyed to assessee on June 13, 1986. 6. assessee also paid tthe first instalment on July 4, 1986, thereby conferring right upon assessee to hold f lat, which was later identified, identi and possession was delivered ivered on later date. In these facts and circumstances of that case, it was held by Hon ble Punjab & Haryana High Court that mere fact that possession was delivered ivered later did not de detract tract from fact that allottee al was conferred right to hold th property on issuance of allotment lotment letter and transfer thus related back to and arose from rights conferred by allotment al let 4 I.T.A. No. 17/Kol/2016 Assessment Year: 2009-10 Dr. Raghib Husnain ter. case laws, relied ied upon by ld. Counsel for assessee, therefore, are distinguishable on facts and same cannot be any help to assessee in present case. As already noted, one fifth share in thee property at 53, Hazra Road, Kolkata, which was sold by assessee and other five persons during year under consideration had been acquir acquired by them from Shri Braja Ballav lav Paul by way of sale agreement entered into only on 27.06.2006 and, therefore therefore,, capital gain arising from sale thereof on 28.04.2008 gave rise to long long-term capital gain. I, therefore, find no infirmity irmity in impugned order of ld. CIT(Appeals) upholding order of Assessing Off Officer on this issue and dismiss this appeal al f i led by assessee. 7. Consistent with view taken therein, we hold that date of acquisition of property in question is 12/06/2006. For Section 53A of Transfer of Property Act read with Section 2(47) of Income Tax Act, to come into force, there should be possession of property. There was no transf transfer er of possession as on 29/06/2004. agreement dt. 29/06/2004 is unregistered agreement. This is not mentioned on sale deed executed on 12/06/2006. Hence we uphold order of ld. CIT(A) and dismiss this appeal of assessee. 8. In result, lt, appeal of assessee is dismissed. Kolkata, 30th day of August, 2019. Sd/- Sd/- [S.S. Viswanethra Ravi] [J. J. Sudhakar Reddy] Reddy Judicial Member Accountant Member Dated : 30.08.2019 {SC SPS} 5 I.T.A. No. 17/Kol/2016 Assessment Year: 2009-10 Dr. Raghib Husnain Copy of order forwarded to: 1. Dr. Raghib Husnain 12, Abdul Halim Lane Kolkata 700 016 2. Income Tax Officer, Ward-55(3), 55(3), Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata. True copy By order Assistant Registrar ITAT, Kolkata Benches Raghib Husnain v. Income-tax Officer, Ward-55(3), Kolkata