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2011 (2) TMI 96 - ITAT MUMBAICapital Gain - under the agreement dated 18/5/1996 the society gave permission to the developer to construct on the society’s land. No part of the land was ever transferred by the society. The society merely gave permission to the developer to carry out development in the rear side of the existing building Raj Ratan Palace after demolishing a small bungalow which was in existence. Clause 12 & 13 of the agreement dated 18/5/96 clearly mentions that the developer will pay compensation at Rs. 1431/- to the society and members. The sum was quantified at Rs. 2,00,16,828/-. Out of this only a sum of Rs. 2,51,000 was paid to the society. Held that: - No incidence of taxation in the hands of assessee - It is not clear as to whether the sum in question is brought to tax as capital gain in the hands of the assessee or as income under section 2(24) of the Act. In our view neither of the above provisions can be pressed into service for bringing the sum in question to tax in the hands of the assessee. We have already seen that there was no receipt by the assessee except a sum of Rs.2,51,000/-. The sum so received was for merely granting consent to consume TDR purchased by the Developer from a 3rd party. The Society continues to be the owner of the land and no change in ownership of land had taken place. Mere grant of consent will not amount to transfer of land/or any rights therein. - Not liable to tax - Decided in favor of assessee.
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