TMI Blog2017 (4) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... city of a transferee. Further 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. In view of cancellation of JDA dated 25.2.2007, no further amount has been received and no action thereon has been taken. It was urged that as and when any amount is received, capital gains tax shall be discharged thereon in accordance with law. In view of the aforesaid stand, while disposing of the appeals, we observe that the assessee appellants shall remain bound by their said stand. 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 any longer and has been rendered academic. The Tribunal and the authorities below were not right in holding the assessee-appellant to be liable to capital gains tax in respect of remaining land measuring 13.5 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of that property? (iv) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT erred in relying upon the order of Hon ble High Court and was justified in holding that in the absence of registration of JDA dated 25.02.2007 having been executed after 24.09.2001, the agreement does not fall under Section 53A of the Transfer of Property Act, 1882 and consequently, section 2(47)(v) of the Income Tax Act, 1961 does not apply to the present case, failing to appreciate the fact that this requirement of registration cannot be read into clause (v) of Section 2(47) of the Income Tax Act, 1961 because the said provision refers only to the contract of the nature of section 53A of the T.P. Act without going into the controversy whether or not such agreement is required to be registered? (v) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT erred in relying upon the order of Hon ble High Court and was justified in holding that the Society has transferred the land through JDA on a pro-rata basis, and that only the money received against which sale deeds have also been executed could be taxed and the money to be rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessed income of ₹ 1,64,29,860/- plus agriculture income of ₹ 1,80,000/-. While completing the assessment, the Assessing Officer computed long term capital gain amounting to ₹ 1,47,21,731/- and added it to the returned income of the assessee. The assessee was one of the members of the Punjabi Cooperative Housing Building Society Limited. The Society consisting of 95 members was the owner of 21.2 acres of land in village Kansal. It had allotted plots measuring 500 square yards to its 65 members, 1000 square yards to its 30 members and 4 plots of 500 square yards each were retained by it. It entered into a tripartite Joint Development Agreement (JDA) dated 25.02.2007 with Hash Builders Private Limited, Chandigarh (HASH) and Tata Housing Development Company Limited, Mumbai (THDC). Under the JDA, it was agreed that HASH and THDC shall undertake development of 21.2 acres of land owned and registered in the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The matter is no longer res integra. In C.S. Atwal s case (supra), the issue involved in this appeal stands decided by this Court. In the said case, the following 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 25.02.2007 read with sale deeds dated 2.03.2007 and 25.04.2007 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 the transferor to the transferee of the entire land in part performance of JDA dated 25.02.2007 so as to fall within the domain of Section 53A of 1882 Act. (3) The possession delivered, if at all, was as a licencee for the development of the property and not in the capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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