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2015 (8) TMI 929 - PUNJAB AND HARYANA HIGH COURT

2015 (8) TMI 929 - PUNJAB AND HARYANA HIGH COURT - [2016] 386 ITR 116 - Transfer of property - capital gain - scope and legislative intent of Section 2(47)(ii), (v) and (vi) of the Act - what are the essential ingredients for applicability of Section 53A of 1882 Act - meaning to be assigned to the term “possession”? - whether in the facts and circumstances, any taxable capital gains arises from the transaction entered by the assessee? - Held that:- Perusal of the JDA dated 25.2.2007 read with sa .....

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53A of 1882 Act, by incorporation, stood embodied in section 2(47)(v) of the Act and all the essential ingredients of Section 53A of 1882 Act were required to be fulfilled. In the absence of registration of JDA dated 25.2.2007 having been executed after 24.9.2001, the agreement does not fall under Section 53A of 1882 Act and consequently Section 2 (47)(v) of the Act does not apply. - The issue of exigibility to capital gains tax having been decided in favour of the assessee, the question of .....

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atter is remanded to the Tribunal to pass fresh orders after hearing learned counsel for the parties and in view of the conclusions noticed herein above. Ordered accordingly. The appeals stand disposed of. See C.S.Attwal vs. The Commissioner of Income Tax, Ludhiana and another [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] - ITA No. 270 of 2013 and 50 of 2014 (O&M) - Dated:- 31-7-2015 - MR. AJAY KUMAR MITTAL AND MR. FATEH DEEP SINGH, JJ. For The Appellant : Ms.Radhika Suri, Advocate with Ms. R .....

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Chandigarh 'B' Bench Chandigarh (in short, the Tribunal) in ITA No.556/Chd/2012 for the assessment year 2007-08. 3. Briefly, the facts as narrated in ITA No.270 of 2013 necessary for adjudication of the controversy involved may be noticed. The appellantassessee is a society formed on 23.4.1998. It purchased land measuring 21.2 acres in Village Kansal for an amount of ₹ 6,16,07,029/-. The purchase price was contributed by the members of the society. The society allotted plots measur .....

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name of the society in respect of which it would give development rights in lieu of consideration. The agreed consideration was to be disbursed by THDC through Hash to each individual member of the society having plot size of 500 square yards partly in monetary terms (Rs. 82.50 lacs in cash) and balance in terms of built up property (one flat measuring 2250 square feet). Clause 4 of the JDA provided the following schedule:- a) Payment of ₹ 3 lacs per plot holder of 500 square yards and  .....

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and ₹ 36 lacs per plot holder of 1000 square yards to be made within two months of execution of the JDA against execution of another registered sale deed by the society in favour of THDC for land of equivalent value being 4.62 acres. d) Payment of ₹ 24.75 lacs per plot holder of 500 square yards and ₹ 49.50 lacs per plot holder of 1000 square yards to be made within six months from the date of execution of the JDA or within two months from the date of the approval of the plans/ .....

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ayments after adjustment of the advance/earnest money against execution of another registered sale deed by the society in favour of THDC for land of equivalent value being 7.14 acres. f) Each member having plot of 500 square yards was entitled to receive one built up apartment having super area of 2250 square feet and each member having plot of 1000 square yards was entitled to two built up apartments having super area of 2250 square feet after transfer of land in the name of THDC. Allotment let .....

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ferred shall not be transferred in favour of THDC. 4. The developers made payments only upto clause (c) above i.e. upto second installment and till date only part of the land measuring 7.7 acres i.e. 3.08 acres plus 4.62 acres having specific khasra nos. as mentioned in the JDA and plan attached thereto have actually been registered in the name of THDC. Subsequently, substantial disputes arose between the society on the one hand and the developers on the other with regard to further payments to .....

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ection 80P of the Act. In the original return, the appellant did not offer to tax any amount under the JDA on the ground that there was no transfer to THDC during the year under consideration and also because ownership as well as possession of the land still vested in the society. 6. The Assessing Officer vide order dated 29.12.2010, Annexure A.1 passed under Section 143(3) of the Act held that since as per the JDA, there was grant and assignment of various rights in the property by the appellan .....

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5,00,000/- relating to the four plots of which it was owner. The Assessing Officer applied the provisions of Section 2(47)(v) of the Act read with Section 53A of the Transfer of Property Act, 1882 (in short, the 1882 Act ) which provides that any transaction involving allowing the possession of any immovable property to be taken or retained in part performance of contract of the nature referred to in Section 53A of the 1882 Act shall be treated as transfer for purposes of the Act. Since the JDA .....

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e Assessing Officer in framing substantive assessment on a consideration of ₹ 7,35,00,.000/- which was the amount receivable for the four plots owned by the appellant under the JDA. The revenue and the appellant filed appeals before the Tribunal. The appellant on the basis of the terms of the JDA and subsequent material events contended before the Tribunal that the action of the Assessing Officer in bringing to tax the entire consideration receivable under the JDA under the head 'capit .....

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3A of the 1882 Act. The entire consideration receivable under the JDA was thus held to be taxable in the hands of the appellant. The Tribunal also affirmed the determination of notional value of flat by applying rate of ₹ 4500 per square feet. The issue of allowability of exemption under section 54F of the Act was rejected by the Tribunal following tis order in C.S.Atwal's case and the exemption under Section 54 of the Act was denied on the ground that the same was available only in th .....

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on 53A of 1882 Act; iii) meaning to be assigned to the term possession ? iv) whether in the facts and circumstances, any taxable capital gains arises from the transaction entered by the assessee? After considering the relevant statutory provisions and the case law, the following conclusions were drawn:- 1. Perusal of the JDA dated 25.2.2007 read with sale deeds dated 2.3.007 and 25.4.2007 in respect of 3.08 acres and 4.62 acres respectively would reveal that the parties had agreed for pro-rata t .....

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