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2022 (8) TMI 1385 - ITAT BANGALORECapital gain - JDA - transfer of capital asset u/s 2(47) - HELD THAT:- Section 53A of the Transfer of Property Act, has no manner has application to impugned development agreement. Accordingly, section 2 (47)(v) of the IT Act is also not applicable as it has no effect of transfer nor enabling of any enjoyment by either of the parties on the date of execution of development agreement as the owner continue to own the land and the developer has no enjoyment whatsoever as it is only on the execution of a project in accordance with the terms of development agreement. As in the assessment under consideration, it cannot be said that there was a transfer in terms of section 2(47)(v) of the Act as nothing has been progressed with regard to the construction project from the end of the developer in this A.Y. Further, the possession in the present case is only permissive possession given by the assessee to the developer and not the possession in part performance of agreement of sale. There is no document by which the revenue can come to the conclusion that there was delivery of possession. The mere fact that development of the property cannot be done without possession cannot be the basis to come to the conclusion that possession was delivered in the part performance of the agreement for sale in the manner laid down in section 53A of the T.P. Act. Judgement relied by the Ld. D.R. in the case of T.K. Dayalu cited [2012 (6) TMI 405 - KARNATAKA HIGH COURT] cannot be applied to the facts of the present case as the constructive possession of property as per section 53A of the T.P. Act has not been given. Accordingly, we hold that there is no transfer in the assessment year under consideration in the A.Y. 2010-11. Capital gain arise out of this JDA dated 07.05.2009 to be taxed in the assessment year when the assessee actually got received his share of constructed area of flats from the developer, if it is not offered to him so far. This ground of assessee is partly allowed.
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