Case Law Details
Sanjay Bansal Vs ITO (ITAT Delhi)
The transfer/ gift deed available at pages 85-140 of the Paper Book reveals that the transfer/ gift deed is made and executed on 19.11.2008 between Shri Sanjay Bansal and Smt. Manju Garg. It is mentioned in the recital that the transferor/ donor is the allottee, lessee and in possession of the said property duly allotted by the Noida Authority; that the lease deed in respect of the property has been executed by the Noida Authority in favour of the transferor as lessee for the term of 90 years and the same is registered; that the transferor/ donor is the brother of the transferee/ donee and that they are closely related and have got love and affection to each other; that in consideration of love and affection, the transferor/ donor has agreed to gift lease hold rights/ ownership rights in respect of the said property in favour of transferee/ donee; that the transferor/ donor has obtained the permission of Noida authority vide their letter No. Noida/AGM/(IND)/2007/9120 dated 19.12.2007 to transfer/ gift the said property in favour of the transferee/donee; that the transferor/ donor has transferred and assigned all his rights, titles and interest in the said property TO HOLD the same to the transferee/ donee by virtue of this transfer/ gift deed; that this deed is without monitory consideration and the transferee/ donee has accepted the gift.
In view of the above recitals made in the transfer/ gift deed it is crystal clear that the said property was gifted by the assesee to his sister out of natural love and affection and it was in this back drop that the assessee claimed before the Ld. CIT(A) that the incidence of transfer of immovable property was not liable to tax in his hands.
The claim of the assessee before the Ld. CIT(A) was lawful. Clause (iii) of section 47 of the Act exempts from the operation of section 45 all transfers under a gift or will or an irrevocable trust. Therefore, the transaction of gift under consideration is not to be regarded as transfer for the purposes of section 45. The Hon’ble Calcutta High Court held in the case of Gillanders Arbuthnot and Co. vs. CIT [76 ITR 160 (Cal)] that the provision of section 47 have to be strictly construed which decision has been affirmed by the Hon’ble Supreme Court in 87 ITR 407 (SC). Therefore, the impugned transaction of gift is not exigible to capital gains tax.
FULL TEXT OF THE ORDER OF ITAT DELHI
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