| The Tax Publishers2019 TaxPub(DT) 7047 (Del-Trib) INCOME TAX ACT, 1961
Section 2(47)
When in the registered power of attorney no consideration had passed on from assessee to the original owner of the property, there was no question of any transfer of property in favour of the assessee. Moreover, when assessee being GPA holder of the owner of property executed sale deed in favour of her husband wherein it was specifically mentioned that sale consideration was earlier paid by assessee's husband to the owner, that would clearly show that at the time of execution of the registered sale deed, no consideration was passed on from assessee's husband to the assessee. Thus, there was no question of any transfer of property from the side of assessee, so as to attract provisions of capital gains.
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Capital gains - Transfer under section 2(47) - Assessee, a General Power of Attorney holder and not the owner of property transferred -
AO made additions on account of long-term capital gain on sale of land and short term capital gain on sale of factory building constructed on said land. Assessee contended that as she was acted as General Power of Attorney holder on behalf of original owner of the property, no transfer was made by her and, as such, no long term capital gain or short term capital gain would arose. However, Revenue contended that assessee had shown the amount of sales consideration received through registered sale deed in her capital amount. Therefore, that clearly showed that the impugned property belonged to assessee. Held: The assessee filed copy of the 'Ikrar Nama' which was executed by the owner of the property in favour of assessee's husband and it was signed by both the parties as well as witnesses. The owner of the property had also executed affidavit in favour of assessee's husband and Registered General Power of Attorney (GPA) in favour of the assessee. But, said GPA was without any consideration. Thereafter, assessee being GPA holder of the owner of property executed sale deed in favour of her husband wherein it was specifically mentioned that sale consideration was earlier paid by assessee's husband to the owner. And, that would clearly show that at the time of execution of the registered sale deed no consideration was passed on from assessee's husband to the assessee. Thus, there was no question of any transfer of property from the side of assessee, so as to attract provisions of capital gains.
Followed:CIT v. C. Sugumaran [Tax Appeal No. 840/2014, dt. 3-11-2014] : 2015 TaxPub(DT) 0226 (Mad-HC), and Gyan Chand Agarwal v. Addl. CIT [ITA No. 266/JP/2017] : 2017 TaxPub(DT) 3859 (Jp-Trib).
REFERRED :
FAVOUR : In assessee's favour
A.Y. : 2009-10
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