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2018 (9) TMI 1163 - AT - Income TaxCapital gain - JDA or agreement for sale - eligible transfer u/s 2(47) - as submitted by assessee possession in question of the impugned property was never handed over to the purchaser, hence, there was no part performance of the contract as per the terms of section 53A of the Transfer of Property Act - Held that:- The agreement for sale dated 12. 12. 2008 and the cancellation of agreement dated 04. 05. 2011 are on record. Clauses of agreement for sale states that the possession of the property is to be handed over to the buyer only when the entire sale consideration is paid by the purchaser. In the instant case, the entire sale consideration was never paid by the purchaser. The sale agreement dated 12. 12. 2008 was cancelled vide agreement dated 04. 05. 2011 and prior to the cancellation of sale agreement, substantial portion of advance received by the assessee was refunded to the intended purchaser. The agreement for sale is not a registered document. As held in the case of CIT v. Balbir Singh Maini (2017 (10) TMI 323 - SUPREME COURT OF INDIA) that after amendment of Registration Act, 1908 in the year 2001, unless the document containing the contract to transfer any immovable property is registered, it shall not have any effect in law. In the instant case, there is no Joint Development Agreement (JDA), but only an unregistered sale agreement, which could not be fulfilled due to external reasons and there was no handing over of possession at any point of time to the purchaser. The property in question as on the date is still with the assessee and there is no transfer of the impugned property at any point of time. Therefore, the addition made by the Assessing Officer is uncalled for and we uphold the finding of the CIT(A). - Decided against revenue
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