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Capital Gains Deleted as No Transfer Occurred Without Possession and Full Payment

Case Law Details

TaxGuru Citation
2025 taxguru.in 11875
Case Name
Purav Mahendra Mehta Vs ACIT (ITAT Mumbai)
Appeal Number
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Date of Judgement/Order
Premium Access
Related Assessment Year
2015-16
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Purav Mahendra Mehta Vs ACIT (ITAT Mumbai)

Registration Alone of Agrement to Sell Doesn’t Trigger Capital Gains — Mumbai ITAT Applies ‘Transfer’ Principles

Assessment was completed u/s 143(3) taxing capital gains of ₹80,76,511 on sale of three commercial units. CIT(A) confirmed the addition.

Before Tribunal, Assessee submitted that only part consideration (between 5% to 13%) was received during FY 2014-15 & possession was never handed over. Agreements to Sell , though registered on 07.12.2014, specifically stated in Clause 7 & 8 that title transfer & possession would occur only after full payment. Purchasers also issued written confirmations stating that full consideration was unpaid & possession not taken.

Assessee relied on the Bombay High Court decision in CIT Vs Dr Arvind S. Phake & Mumbai Tribunal’s ruling in Ashok M. Seth Vs DCIT, which held that mere registration does not result in “transfer” unless full consideration is paid & possession is delivered, emphasising that intention of the parties determines the real timing of transfer. Tribunal noted that in the present case, only execution of agreement had occurred; full consideration & possession — both mandatory conditions for transfer — were pending.

The transfer of property cannot be said to have been effected merely basis registration of the agreement to sell & not of the instrument of transfer of immoveable property through a conveyance deed . Hence, no transfer took place in AY 2015-16.

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Author Info

CA Vijayakumar Shetty
Qualification: CA in Practice
Company: Shetty & Co, Chartered Accountants, Mangalore
Location: Mangalore, Karnataka
Articles Published: 7,673

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