2023 (5) TMI 1104 - AT - Income Tax

Capital gain - JDA - transfer of capital asset u/s 2(47) - HELD THAT:- What is given is not possession contemplated u/s. 53A of the Transfer of Property Act and that it is merely a license to enter the property for the purpose of carrying out development. Invocation of the provisions of Sec.2(47)(v) on the basis of clause 1.1 of the JDA, in our view was not proper.

Obligation cast on the Transferee(developer) to possession in the present is traced to the joint development agreement which is in the nature of permissive possession and not possession in part performance of agreement for sale.

There is no document by which the revenue can come to the conclusion that there was delivery of possession. The mere fact that development of the property cannot be done without possession, cannot be the basis to come to a conclusion that, possession was delivered in part performance of the agreement for sale in the manner laid down in Sec.53A of the Transfer of Property Act - Appeal filed by assessee stands allowed.