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2018 (8) TMI 134 - BOMBAY HIGH COURTCapital gain - transfer of land within the meaning of Section 2(47)(v) - Held that:- This issue now stands concluded in favour of the Respondent-Assessee and against the Appellant-Revenue by the decision of the Apex Court in CIT v/s. Balbir Singh Maini [2017 (10) TMI 323 - SUPREME COURT OF INDIA] held that in terms of Section 2(47)(v) of the Act, transfer of any immovable property in part performance of a contract of the nature referred in Section 53A of the Transfer of Property Act will be completed only when the Agreement under Section 53A of the Transfer of Property Act is registered under the Indian Registration Act. Admittedly, the Agreement dated 20th April, 2007 has not been registered. Consequently, there is no transfer in terms of Section 2(47)(v) of the Act. The clause of the Agreement as referred to, in the Assessment Order makes it clear that M/s. Godrej Properties Ltd., has been granted license to enter upon and develop the property. However, the possession of the said land continues to be with the Respondent-Assessee. Further, the proviso to clause (6) of the Development Agreement clearly provides that nothing contained in the agreement shall be construed as grant of possession in part performance of the Agreement under Sections 2(47)(v) and 2(47)(vi) of the Act. As no transfer of the said land had taken place under the Development Agreement, the occasion to compute capital gains as proposed, would not arise. We have found that there is no transfer of the stock-in-trade i.e. land that has taken place in the previous year relevant to the subject Assessment Year. Therefore, the issue of determining the date of conversion of capital asset into stock-in-trade for the purposes of bringing it to tax under Section 45(2) of the Act, would become academic in this Assessment Year. Therefore, the Assessment Year, when the authority hold that the transfer/ sale of the land has taken place, the authorities in that year would determine independently of the impugned order of the Tribunal as well as our order, the date of conversion of capital assets into stock-in-trade and its value. This particularly so, as Questions (d), (e), (f) and (g) have not been entertained in the present facts, as they are academic.
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