TMI Blog2008 (3) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents executed by the assessee, the assessee had transferred all material rights and interests in the property, coupled with possession in favour of the purchaser which by no means is other than the transfer of the properties. In the present case, when the possession was handed over and total consideration was also agreed upon by the parties and the vendor was allowed to enjoy and entertain the property for the purpose it was taken over, then the transaction has fulfilled the conditions required under s. 53A of the Transfer of Property Act and, therefore, it is covered under the definition of transfer under s. 2 (47)(v) of the IT Act. We are of the considered view that the assessee has failed to established any case in its favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising out of sale of the house property at No. 51, Murugappa Mudali Street, Purasawakkam, Chennai, on the ground that the entire sale consideration was invested for purchase of house property at 4/2, Gandhi Avenue, Purasawakkam, Chennai. The return was completed under s. 143(1) of the IT Act on 15th July, 1997. Subsequently, the AO noticed that the assessee sold two properties i.e., 4/1, Gandhi Avenue, Purasawakkam, Chennai and 4/2, Gandhi Avenue, Purasawakkam, Chennai, during the accounting period relevant for the assessment year under consideration. It was also noticed by the AO that the exemption claimed and allowed under s. 54 of the Act in respect of capital gain arising out of the sale of property at No. 51, Murugappa Mudali Street ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. He submitted that the development agreement under consideration does not amount to transfer of the property and the provision of s. 54 of the Act has not been violated. The main thrust of the argument of the learned counsel for the assessee is that the substance of the agreement, in question, does not amount to transfer within the meaning of s. 2 (47)(v) of the Act. Therefore, the authorities below have committed illegality and error in treating the transaction as transfer and withdrawing the exemption under s. 54 of the Act. 5. The learned Departmental Representative, on the other hand, heavily relied on the orders of the lower authorities. 6. We have considered the rival submissions carefully in the light of the material on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the respective properties constitute transfer of the properties or not. 7. In the case of Chaturbhuj Dwarkadas Kapadia vs. CIT, the Hon'ble Bombay High Court has held that: "Under s. 2(47)(v), any transaction involving allowing of possession to be taken over or retained in part performance of a contract of the nature referred to in s. 53A of the Transfer of Property Act would come within the ambit of s. 2(47)(v). That, in order to attract s. 53A, the following conditions need to be fulfilled. There should be a contract for consideration; it should be in writing; it should be signed by the transferor; it should pertain to transfer of immovable property; the transferee should have taken possession of the property; lastly, the transferee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99) 70 ITD 8 (Mumbai). In that case, the issue before the Tribunal was that the transfer has taken place in various stages and, therefore, the computation of capital gain was to be worked out on the basis of the sale consideration actually received during the year in respect of the portion of land transferred in that year only. In our view, the said decision is not applicable to the facts of the present case because the issue involved is clearly different, as in the present case, the alleged transfer of the property in question is only one time at the time of execution of documents and handing over possession of the property. 10. As per the ruling of the AAR in the case of Jasbir Singh Sarkaria, In re (2007) 212 CTR (AAR) 107 : (2007) 294 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and the so-called developer, coupled with the transfer and the possession of the immovable properties, we find that the transaction amounts to conveyance in favour of the purchaser of the properties and the transfer was completed on the date when the purchases were executed and possession was handed over. By means of these documents executed by the assessee, the assessee had transferred all material rights and interests in the property, coupled with possession in favour of the purchaser which by no means is other than the transfer of the properties. As per cl. (v) of s. 2(47) of the IT Act, transfer includes any transaction/which allows possession to be taken/retained in part performance of a contract of the nature referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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