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2019 (2) TMI 1436 - AT - Income TaxShort term capital gain - value of consideration in kind - transfer u/s 2(47) - case of the assessee before the Tribunal is that no effective transfer of the land took place as the land is still in Green Zone and would be considered as Non-Agricultural land, fit for construction, only when it goes to Yellow Zone - AR’s contention was that albeit there was a Development Agreement but, in fact, there was no transfer of possession to SCTPL warranting the invocation of the provisions of section 45 - HELD THAT:- Clause of the Agreement that the assessee executed PoA on the same date in favour of the Developer for the development of the said property, and such PoA was to remain in force till the construction, possession and completion of the Scheme under which the residential units were effectively sold. Thus, it is vivid that no construction could have been done without handing over possession of the land to the Developer - the assessee, immediately on signing of the Agreement, handed over the possession to the Developer for construction and further this Agreement is irrevocable at the instance of the either party. The assessee did hand over the possession of the land to the buyer and the contrary contention put forth on her behalf is devoid of merit. The present situation is covered within the definition of “transfer” as given in section 2(47)(v) as: `any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to section 53A of the Transfer of Property Act, 1882’. Not only the assessee transferred the possession of the land to the Developer pursuant to the Agreement, but also received a sum of ₹ 20.00 lakh by cheque in part performance. As such, it is held that the assessee transferred the land u/s.2(47) of the Act and resultantly the provisions of section 45 are attracted. On going through the prescription of section 48, it transpires that what is contemplated as the full value of consideration is the amount which is “received or accruing as a result of the transfer of capital asset”. Not only the amount actually received but also the amount accruing to the assessee is liable to be included in the same. As the assessee in the instant case acquired the right to receive 2000 sq.ft. of saleable area in the new building to be constructed, which right is a part of consideration and has accrued to the assessee, the same is held to have “accrued” to the assessee qualifying for inclusion in the full value of consideration - the right to receive consideration in kind is not marred by any contingency. Further, it is a crystallized right, which under no situation, can be denied to the assessee because the Agreement itself is irrevocable. It is not the case of the assessee that there is any cloud hovering over the consideration in kind. In such a scenario, it is difficult to accept the contention of the ld. AR that the value of consideration in kind should be ignored.- Decided against assessee.
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