TMI Blog2017 (5) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... no possession had been given by the transferor to the transferee of the entire land in part performance of JDA 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. 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 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 no further amount has been received and no action thereon ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion had been given by the transferor to the transferee of the entire land in part performance of the JDA read with possession letter and irrevocable special power of attorney so as to fall within the domain of Section 53A of the Transfer of Property Act 1882, completely disregarding the facts that as per the JDA there was a grant and assignment of all rights In the entire property in favour of THDC along with handing over of physical and vacant possession. 3. On the facts and in the circumstances of the case and in law, the Ld, CIT(A) has erred in holding that that no possession had been given by the transferor to the transferee of the entire land in part performance of the JDA so as to fall within the domain of Section 53A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 45 of the Income Tax Act 1961 is a deeming provision where capital gain is liable to be taxed in the year in which transfer takes place and there is no provision under the law to allow the assessee to pay capital gains tax beyond the year in which the capital gain has accrued. 7. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not adjudicating on the crucial issue of applicability of section 2(47)(ii) and 2(47)(vi) of the Income Tax Act 1961 in the case of the assessee as the provisions of section 2(47)(ii) and 2(47)(vi) also make the assessee liable for capital gains under the Income Tax Act 1961. 8. On the facts and in the circumstances of the case and law, the Ld CIT(A) has err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered into a tripartite joint development agreement with Hash Builder Pvt. Ltd. in which through this agreement the entire land of the society was transferred to Tata Housing Development company for a consideration of ₹ 2,37,03,75,000/- and each member was to get a consideration including the value of the flat. The assessing officer noted that the capital gains on account of consideration received/receivable have escaped assessment and therefore, after recording reasons issued notice u/s 148 of the Act. The validity of the jurisdiction challenged by the assessee was upheld by the ld. CIT(A) on the merits. The facts taken into consideration by the tax authorities are summed up by the ld. CIT(A) as follows : 7.1 Brief facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings, the Ld. A/R submitted that there are 95 members of the said society who filed appeal on identical facts and the appeal has been decided by Hon'ble Punjab and Haryana High Court in the case of Sh. C.S. Atwal. [ITA No 200 of 2013]. On perusal of the order it is seen that the additions on account of capital gain were made relying upon the decision of Hon'ble ITAT, Chandigarh in the case of Sh. Charanjeet Atwal (ITA No. 448/Chd/2011). The assessing officer in this case computed the capital gains at ₹ 1,82,85,429/- by taking into consideration receivable in cash at ₹ 82,50,000/- and the value of one flat of 2250 sq. feet @ 4500/- sq. feet for ₹ 1,01,25,000/-. The appellant had disclosed capital gains of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Learned counsel for the assessee appellant that whatever amount was received from the developer, capital gains tax has already been paid on that and sale deeds have also been executed. In view of cancellation of JDA dated 25.02.2007, 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. 6. The issue of exigibility to capital gains tax having been decided in favour of the assessee, the question of exemption u/s 54F of the Act would not survive an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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