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2022 (9) TMI 328 - AT - Income TaxCapital gain - JDA entered - Transfer of capital asset - whether possession given to the develop cannot be regarded as delivery of possession ? - as per JDA clauses Developer will take possession of the property for the specific purpose of development only, that too after satisfying the conditions like obtaining approvals etc. HELD THAT:- From a reading of the above clauses of the JDA, it is clear that the Developer will take possession of the property for the specific purpose of development only, that too after satisfying the conditions like obtaining approvals etc. The clause also provides that possession given to the develop cannot be regarded as delivery of possession in part performance of Agreement for Sale as contemplated under section 53-A of the Transfer of Property Act, 1882. The assessee has given only permissive possession and not legal possession. Accordingly, following the decision of Dr. Krishna Prasad Mikkilineni [2022 (2) TMI 480 - ITAT BANGALORE] we hold that transfer has not taken place during the year under consideration. Accordingly, capital gain is not assessable in the hands of the assessee during the year under consideration. We therefore uphold the order of the CIT(A). - Decided against revenue.
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