TMI Blog2015 (8) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... a transfer of land. No possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.2.2007 so as to fall within the domain of Section 53A of 1882 Act. The possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of a transferee. Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act, 1961 (in short, the Act ) against the order dated 29.7.2013, Annexure A.3 passed by the Income Tax Appellate Tribunal, 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 measuring 500 square yards to 65 members, 1000 square yards to 30 members and four plots of 500 square yards were retaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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/design and drawings and grant of final licence to develop whereupon construction can commence, whichever was later, against execution of another registered sale deed by the society in favour of THDC for land of equivalent value being 6.36 acres. e) Balance payment of ₹ 24.75 lacs per plot holder of 500 square yards and ₹ 49.50 lacs pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be made in terms of the JDA i.e. from clause (d) onwards. The appellant, who had been allotted 1000 square yards of plot in the society was, as per the JDA, entitled to receive monetary consideration of ₹ 3,30,00,000/- and four furnished flats of 2250 square feet each. The appellant actually received proportionate amount of ₹ 66 lacs. 5. For the previous year relevant to the assessment year 2007-08, the appellant filed original return of income at nil after claiming deduction under Section 80P of the Act. In the original return, the appellant did not offer to tax any amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-08, the Assessing Officer computed chargeable capital gains in that year. It was also held that there was 'transfer' within the meaning of sub sections (ii) and (vi) of Section 2 (47) of the Act. The appellant challenged the order passed by the assessing Officer before the Commissioner of Income Tax (Appeals) [CIT (A)]. Vide order dated 12.12.2011, Annexure A.2, the CIT(A) upheld the order passed by the 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 even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing issues emerged for consideration:- i) scope and legislative intent of Section 2(47)(ii), (v) and (vi) of the Act; ii) the essential ingredients for applicability of Section 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 transfer of land. 2. No possession had been given by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
