TMI Blog2017 (5) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 view of cancellation of JDA 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 Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Joint Development Agreement (JDA) would constitute transfer within the meaning of section 2(47)(ii) of the Income Tax Act, 1961(the Act) read with Clause (v) and Clause(vi) of the said section so as to attract Capital Gain within the meaning of section 45 read with section 48 of the Act? (iii) Whether on the facts and 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 no possession had been given by the transferor to the transferee of the entire land in part-performance of Joint Development Agreement dated 25.02.2007 so as to fall within the scope of Section 53A of the Transfer of Property Act 1882 ignoring the fact that the combined reading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money to be received later cannot be presently taxed ignoring the fact that as per section 45 read with Section 48 of the Income Tax Act, in case of capital gain, the tax has to be paid on the total consideration arising on transfer which include the consideration which has been received as well as consideration which has arisen and became due and may be received later on? (vi) 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 concluding that the assessee has already terminated the agreement and has revoked the irrevocable Power of Attorney, ignoring the vital fact that the said irrevocable Power of Attorney could not be revok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Rs. 1,51,37,787/- and added it to the declared income of the assessee. The assessee was one of the members of the Punjabi Cooperative Housing Building Society Limited. The Society consisting of 207 members was the owner of 27.3 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 27.07.2007 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 27.3 acres of land owned and registered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. during the previous year relevant to the assessment year 2008-09, 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 Assessing Officer concluded that the assessee was liable to tax during the assessment year under consideration on the entire amount received/receivable in future under the head capital gains and thus made net addition of Rs. 1,55,37,787/- on account of long term capital gains taxable in the hands of the assessee. Aggrieved by the order, the assessee filed an appeal before the Commissioner of the Income Tax (Appeals) [CIT(A)]. Vide order dated 27.08.2015, the CIT(A) deleted the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of a transferee. (4) 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 25.02.2007 having been executed after 24.09.2001, the agreement does not fall under Section 53A of 1882 Act and consequently Section 2(47)(v) of the Act does not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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