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Bikramjit Singh Gill Versus Commissioner of Income Tax, Bathinda

2015 (8) TMI 1099 - PUNJAB & HARYANA HIGH COURT

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 sale deeds dated 2.3.007 and 25.4.2007 in respect of 3.08 acres and 4.62 a .....

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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 exemption under Section 54F of the Act would not survive .....

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and another [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] - ITA No. 161 of 2014 (O&M) - Dated:- 31-7-2015 - Ajay Kumar Mittal And Fateh Deep Singh, JJ. For the Appellant : Mr Divya Suri, Adv. and Mr Madhur Sharma, Adv. For the Respondent : Mr G S Hooda, Adv. and Ms Urvashi Dhugga, Adv. JUDGMENT Ajay Kumar Mittal, J. 1. This order shall dispose of ITA Nos.161 and 322 of 2014 as the issue involved in both the appeals is common. However, the facts are being extracted from ITA No.161 of 2014. 2. .....

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is a member of M/s Defence Services Cooperative House Building Society Limited (in short, "the Society'), Mohali consisting of various members. The society is owner of 27.3 acres of land in Village Kansal in District Mohali. The members of the society had been allotted plots measuring 500 and 1000 square yards. The appellant is having a plot measuring 500 square yards. A resolution was passed by the Executive Committee of the society that all the members would surrender their rights in .....

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to be paid in installments as per time schedule prescribed in clause 4 of the JDA and additionally one built up flat measuring 2250 square feet in the project to be given to each individual member of the society having plot size of 500 square yards in the land owned by the society. On 25.2.2007, the appellant member having plot of 500 square yards received part of the entire consideration. The members of the society issued an irrevocable power of attorney in favour of the developers to undertake .....

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72,496/- which was processed under section 143(1) of the Act. The sources of income were shown as salary and business income. On 7.1.2010, revised computation of income was filed by the appellant during the assessment proceedings declaring income of ₹ 22,50,730/- which included capital gains on the consideration of advances and part payment under the JDA. On 17.2.2010, notice under Section 148 of the Act was issued to the appellant. The appellant filed written reply to the notice on 26.3.2 .....

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ideration receivable by the appellant under the JDA to tax under the head 'capital gains':- i) Monetary consideration of ₹ 80 lacs (though only ₹ 32,00,000/- actually received till date) ii) One furnished flat measuring 2250 square feet at the rate of ₹ 4500/- per square feet worth amounting to ₹ 1,01,25,000/-. Aggrieved by the order, the assessee filed appeal before the Commissioner of Income Tax (Appeals) (CIT(A) on 9.6.2011. Pursuant to a Public Interest Litiga .....

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approval from the competent authority. The society gave 30 days time to the developers to make the payment of the third installment. On non receipt of the payment on 13.6.2011, the society passed a resolution to terminate the attorney issued in favour of the developers. On 31.10.2011, the society cancelled the power of attorney issued in favour of the developers. Vide order dated 26.3.2012, this court in CWP No.20425 of 2010 directed the developers to obtain additional permission under the Punja .....

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e order dated 7.3.2013, Annexure A.2, the CIT(A) dismissed the appeal filed by the appellant relying upon the order passed in the appeal of Shri Nirmal Singh Kahlon, another member of the society. Not satisfied with the order, the appellant filed appeal before the Tribunal. Vide order dated 11.9.2013, Annexure A.3, the Tribunal dismissed the appeal upholding the order passed by the Assessing Officer and affirmed by the CIT(A) bringing the entire consideration receivable to tax under the JDA. Hen .....

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(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 conclusions arrived at by this Court in the said appeals vide judgment dated 22.7.2015 read thus:- 1. Perusal of the JDA dated 25 .....

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