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2021 (9) TMI 188 - AT - Income TaxReopening of assessment u/s 147 - earning of capital gain by entering into JDA with the Developer - HELD THAT:- There was no discussion whatsoever with regard to the earning of capital gain by entering into JDA with the Developer on 15.3.2006. The assessee has not disclosed anything about this transaction either in its return of income or in its computation. There is a total failure on the part of assessee to bring these facts to the notice of the assessing authority. Vide JDA dated 15.3.2006, the assessee being land owner with regard to 38 cents situated at 13/2A, 89, Kodialbail Village, Mangalore Taluk. As per JDA the assessee has to receive 24,000 sq.ft. of built-up area in the apartment for handing over the property. Since the capital gain arising out of this transaction has escaped from assessment and assessee has not disclosed fully and truly all material facts for the purpose of assessment, the case is attracted to the provisions of section 147. After necessary approval, notice u/s. 148 was issued on 20.3.2013. Being so, we do not find any infirmity in the reopening of assessment in this case. Transfer in terms of section 2(47)(v) of the Act when the JDA was entered with the Developer on 15.3.2006 -. The judgment in Chaturbhuj Dwarkadas Kapadia. [2003 (2) TMI 62 - BOMBAY HIGH COURT] undoubtedly lays down a proposition, which more often than not, favours the Revenue, but, on the facts of this case, the said judgment supports the case of assessee inasmuch as ‘willingness to perform’ has been specifically recognized as one of the essential ingredients to cover a transaction by the scope of section 53A of the T.P. Act. The Revenue does not get any assistance from this judicial precedent. As decided in BALBIR SINGH MAINI, CS ATWAL [2017 (10) TMI 323 - SUPREME COURT] Under sub-clause (vi) of section 2(47) of the 1961 Act, any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The expression 'or in any other manner whatsoever' in sub-clause (vi) would show that it is not necessary that the transaction refers to the membership of a cooperative society. The object of section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression 'enabling the enjoyment of' takes colour from the earlier expression 'transferring', so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof - Appeal by the assessee is partly allowed.
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