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2022 (7) TMI 322 - AT - Income TaxLTCG - JDA transaction - Nature of land sold - Primary contention of the assessee was that the impugned land was an agricultural land not falling with the definition of capital assets u/s 2(14) - HELD THAT:- In the instant case, as mentioned earlier, in view of the various clauses in the JDA, it is clear that the assessee has given only a permissive possession and not the legal possession as contemplated within the meaning of section 53A of the Transfer of Property Act - we are of the view that the provisions of section 53A of the Transfer of Property Act are not applicable to the impugned JDA. In view of the matter, the provision of section 2(47)(vii) of the I.T.Act are also not applicable during the relevant financial year. 12. The judgment of the Hon’ble Karnataka High Court in the case of Dr.T.K.Dayalu (2012 (6) TMI 405 - KARNATAKA HIGH COURT] relied on by the CIT(A) is distinguishable on facts. In the instant case, the assessee has neither received any non-refundable deposit nor has delivered the possession of the land to the developer, except for granting license to have ingress and egress into the land proposed to be developed, and accordingly, there is no transfer as defined u/s 2(47) of the I.T.Act. The implementation of the proposed project was legally restrained following the refusal of consent by the Hon’ble National Green Tribunal as well as the Karnataka State Pollution Control Board orders dated 04.05.2010 and 05.10.2016, respectively. To revive the abandoned project, the assessee and the developer had entered into an amended relinquishment agreement with Bangalore Development Authority vide agreement dated 09.05.2019 in order to comply with the directions of the Hon’ble National Green Tribunal. As per the said agreement, the assessee surrendered the total area of 2.35 acres out of total area of 7.25 acres of land to be utilized for the proposed project. Thus, reducing the available area for the proposed project to only 4.30 acres as against 7.25 acres as originally envisaged. The assessee obtained revised sanction plan from the Bangalore Development Authority vide letter dated 11.11.2019 and a fresh JDA agreement was entered between the developer and the assessee vide agreement dated 27.11.2019. Therefore, following the dictum laid down by the in the case of CIT v. Balbir Singh Naini (2017 (10) TMI 323 - SUPREME COURT] we hold that the provisions of section 45 were not attracted for the relevant assessment year. It is ordered accordingly.
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