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2005 (9) TMI 252 - AT - Income TaxCapital Gains - transfer of undivided share of land to the developer - “sale-cum-development agreement" - Whether there is a 'transfer' as envisaged in section 2(47) of the Act r/w section 53A of Transfer of Property Act, prior to the financial year 2000-01 - HELD THAT:- In the present case, all the conditions mentioned in section 53A of T.P. Act, are fulfilled much before 1-4-2000. There is no right left to the transferor other than the right to receive the consideration for the transfer in the manner laid down in the contract and to get certain compensation in the form of rent reimbursements etc. Thus, the transaction entered into by the parties through the agreement is a transaction as envisaged u/s 53A of the Transfer of Property Act. The agreement also stipulates that the developer will arrange for alternative accommodation for the appellant and the other co-owner from the date the possession of the impugned property is handed over to it or bear expenses towards rent at Rs. 7,000 per month till the built-up area of 3,000 sq. ft. is handed over to the appellant and full consideration is paid to the other co-owner as stipulated in the agreement. It also stipulates that if the above built-up area is not handed over to the appellant within 18 months from the date of delivery of possession of the impugned property to the developer, Rs. 15,000 per month shall be paid by the developer to the appellant till the date of handing over the possession of 3,000 sq. ft. of built up area to the appellant. This is also not a case of transfer by sale or exchange, insofar as the consideration is mentioned in the agreement and receiving possession of the 3,000 sq. ft. of built-up area is only a mode of receiving that consideration in addition to the right to have alternate accommodation during the period specified in the agreement. Transfer can be by any mode as enumerated in section 2(47) of the Act or otherwise. In the present case transfer as per section 2(47)(v) took place earlier to 1-4-2000 as is evidenced by the agreement and surrounding facts. As per the discussion made above, we are of the considered view that transfer as per section 2(47) of the Act did not take place during the previous year relevant to assessment year 2001-02. In the result, appeal of the assessee is dismissed.
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