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2023 (2) TMI 428 - HC - Income TaxReopening of assessment u/s 147 - Reasons to belive - LTCG - Transfer of a capital asset within the meaning of Section 2(47) - whether granting a license to the developer, who entered into the assessee’s land for the purpose of development did not amount to ‘allowing the possession of the land’ as contemplated under Section 53A of the Transfer of Property Act, 1882, and, therefore, Section 2(47)(v) would not apply? - HELD THAT:- The Apex Court in Seshasayee Steels (P.) Ltd. [2019 (12) TMI 702 - SUPREME COURT ] held that Section 53A of the Transfer of Property Act, 1882 would not be attracted in a case where a license was given to another for purposes of development of the flats and selling the same and that granting such a license could not be said to be granting possession within the meaning of Section 53A. Thus it can be seen that the development agreement permitted construction on the land in question only as a licensee which did not have the effect of transmitting possession in favour of the licensee within the meaning and spirit of Section 53A of T.P. Act. If that is so, then there would be neither any tangible material nor any reason for the assessing officer to believe that ‘any income chargeable to tax had escaped assessment’ and the action of the assessing officer, therefore, would be without jurisdiction. Reopening of assessment u/s 147 quasshed - Decided in favour of assessee.
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