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2012 (7) TMI 376 - AT - Income TaxTreating the transaction as liable for capital gain - assessee contested that no 'transfer' within the meaning of section 2(47)(v)has occurred in respect of the Development Agreement executed by the assessee - Held that:- Starting words of s. 53A of the Transfer of Property Act are "where any person contracts" which means just the existence of a contract. The assessee is the "person" who has entered into a contract with the developer vide agreement dated 31.03.2006 - The term "transfer" is to be read along with the s. 45 and s. 2(47)(v) of IT Act If transferee has taken any steps to construct the flats, undisputedly then, under the provision of Income Tax Act a "transfer" has definitely taken place. Terms necessary to constitute the transfer can be ascertained with reasonable certainty - with two certainties one is passing of substantial consideration and second is passing over of possession - In this case the amount of consideration has to be paid to the assessee in the form of cash as well as in kind i.e., the flats to be constructed by the developers to be handed over to the owners - Even if some part of consideration remains to be paid, the transaction shall not affect the liability of capital gains tax so as to postpone the same indefinitely. What is meant in clause (v) is the "transfer" which involves allowing the possession so as to allow developer to undertake development work on the site - since the possession of the property already handed over to the developer and right and interest in the property has been transferred in favour of the developers.Being so the condition laid down in section 2(47)(v) has been complied with and the lower authorities justified in treating the transaction is liable for capital gain - against assessee.
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