TMI Blog2016 (10) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession 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 the Transfer Act and consequently, section 2(47)(v) of the I.T. Act, did not apply, that further, willingness to perform their part of the contract was absent on the part of the developers, or it could not be performed by them, which was one of the conditions precedent for applying section 53A of the transfer Act. In clause 26 of the JDA dated 25.02.2007, the principle of force majeure had been provided for, which would be applicable with full vigour in the circumstances; that from the cumulative effect of the covenants contained in the JDA read with the registered s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law in deleting the addition of ₹ 1,49,25,000/- made by the AO on account of Long Term Capital Gains. 2. The ld. CIT(A) has erred both on facts and law in following the judgment of Hon ble Punjab Haryana High Court in the case of C.S. Atwal Others vs. CIT, Ludhiana while deleting the addition of ₹ 1,49,25,000/- in the case of the assessee. 3. The ld. CIT(A) has erred both on facts and law in not adjudicating the crucial issue of applicability of section 2(47)(ii) and (vi) of the Act while deleting the addition of ₹ 1,49,25,000/- in the case of the assessee and has failed to appreciate that these two provisions are de hors the provisions under section 2(47)(v) read with section 53A of the Transfer of Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all, there is obviously neither accrual nor receipt of income, even though an entry to that, effect might, incineration circumstances, have been made in the books of account. This pronouncement was applied by the Supreme Court in Godhra Electricity Co. Limited vs. CIT, (1997) 225 ITR 746 (SC) and followed by the Calcutta High Court in CIT vs. Balarampur Commercial Enterprises limited, (2003) 262 ITR 439 (Cal.). Relying upon decision in Messrs Shoorji Vallcibhdas Co. s case (supra), the Supreme Court in CIT vs. Excel Industries Limited (2013) 338 ITR 295 (SC) held that income tax cannot be levied on hypothetical income. Income accrues when it becomes due but it must also be accompanied by a corresponding liability of the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the substantial questions of law as reproduced in the beginning of the judgment are answered in the manner indicated hereinbefore and the appeals of the assessee are disposed of accordingly. 8. Since the facts and circumstances are similar and the legal issue is common, respectfully following the decision of the H.C. of Punjab and Haryana (Supra). The A.O. is directed to restrict the computation of capital gain to the amounts received by the assessee only subject to law. Balance addition of ₹ 1,49,25,000/- stands deleted. 4. Now, the Department is in appeal before us. 5. The ld. DR relied on the order of the Assessing Officer. 6. None appeared on behalf of the assessee. 7. Having heard the Ld. DR in the light of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred by them to the developer/builder because of supervising event and not on account of any volition on their part; and that viewed from another angle, it could not be said that any income chargeable to capital gains tax in respect of the remaining land had accrued or arisen to the assessee in the facts of the case. 8. The ld. CIT(A) has also followed the aforesaid decision of the Hon ble Punjab Haryana High Court, while allowing the appeal of the assessee. 9. Therefore, respectfully following the decision of Hon ble High Court of Punjab Haryana in the case of Charanjit Singh Atwal vs. CIT (supra), as the facts of the present cases are exactly similar as those decided by the Hon ble High Court, the appeals of both the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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