TMI Blog2017 (5) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... 7)(v) and not under the provisions of section 2(47)(vi) of the Act as has been held by the lower authorites. In the provisions of section 2(47)(v) the sale of property means allowing of the possession of any immovable property to be taken or retained in part performance of a contract, whereas under the provisions of section 2(47(vi) it has been mentioned that any transaction whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever which has the effect of transferring, or enabling the enjoyment, of any immovable property is also sale. We also find that for a transfer of property in question the permission is required to be obtained from the CIDCO which was granted on 18.5.2009. Addition deleted - Decided in favour of assessee. - I.T.A. No.1638/Mum/2014 - - - Dated:- 27-4-2017 - SAKTIJIT DEY, JM, AND SHRI RAJESH KUMAR, AM For The Appellant : Shri Dhirajlal Z Patel For The Respondent : Shri Rajesh Kumar Yadav ORDER PER RAJESH KUMAR, A. M: This is an appeal filed by the assessee challenging the order of ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one month upon the fulfillment of certain conditions as mentioned in the agreement to sell. The possession was also to be handed over on payment of full amount. The buyer of the property could honour conditions as laid down in the agreement to sell and as a result the possession was also not given. However, the payment was made in the month of April,2009 and the possession was given on 11.5.2009 as evidenced by the documents available on record. According to the assessee the sale of the property took place in the assessment year 2010-11 as the balance sale consideration of ₹ 29.00 was received in that year and the possession was also handed over in that assessment year whereas as per the AO the transfer took place in the assessment year 2009-10 and accordingly, the assessment was framed. Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority who after considering the submissions and documents as submitted by the assessee also dismissed the appeal of the assessee by observing and holding as under : 6. I have gone through the impugned assessment order, submissions and documents filed before me. The appellant has entered into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide the year of chargeability is the year in which the transaction was entered into. We have taken this view for the reason that Development Agreement does not transfer the interest in the property to the developer in general law and, therefore, section 2(47)( v) has been enacted and in such cases, even entering into such a contract could amount to transfer from the date of the agreement itself. We have taken this view for a precise reason. Firstly, we find in numerous matters where the Assessing Officer and the department generally proceed on the basis of substantial compliance of the contract. For example, in this very case, the department has contended that because of substantial compliance of the contract during the financial year ending 31st March, 1996, the transfer is deemed to have taken place in that year. Such interpretation would result in anomaly because what is substantial compliance would differ from Officer to Officer. Therefore, if on a bare reading of a contract in its entirety, an Assessing Officer comes to the conclusion that in the guise of agreement for sale, a Development Agreement is contemplated, under which the developer applies for permissions from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding over the possession of the property. The Ld.AR submitted that the transfer could not be said to have taken place on 9.2.2009 as only ₹ 1.00 lakh was received whereas the balance of ₹ 29 lakhs was received in the month of April, 2009 and the possession was taken in the month of May 2009. The ld. AR also referred to the possession letter dated 11.5.2009 filed at page 59 of the paper book evidencing parting the possession of the property by the assessee on 11.5.2009. The ld.AR argued that the transaction was covered under the provisions of section 2(47) (v) of the Act and not by the provisions of section 2(47)(vi) of the Act which has wrongly been applied and upheld. The ld. AR submitted that the possession was also given in the yassessment year 2010-11 under the provisions of section 2(47(V) of the Act. Thus Ld. CIT(A) has wrongly upheld the order of the AO. Moreover, subsequently substantial part of consideration ₹ 29.00 lacs was paid in the month of April, which sufficiently proved that the transfer of property took place in the assessment year 2010-11 and not in assessment year 2009-10 as has been upheld by the FAA. The ld. AR also took us through the calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the possession of any immovable property to be taken or retained in part performance of a contract, whereas under the provisions of section 2(47(vi) it has been mentioned that any transaction whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever which has the effect of transferring, or enabling the enjoyment, of any immovable property is also sale. We also find that for a transfer of property in question the permission is required to be obtained from the CIDCO which was granted on 18.5.2009, a copy of which is placed at page 48 of the paper book which is extracted below : CITY AND INDUSTRIAL DEVELOPMENT CORPORATION OF MAHARASHTRA LIMITED Redg office : NIRMAL: 2nd Floor Nariman Point, Mumbai - 400 021. Phone: 66500900 Fax:00-91-22-2202 2509 OFFICE: Office of the Estatemanagement Section, CIDCO Bhavan, 1st Floor, CBD-Belapur Navi Mumbai - 400 614. HEAD OFFICE: CIDCO Bhavan, CBD Belapur, Navi Mumbai -400614 PHONE- 6791 8100 FAX: 00 91 22 67918166 CID ..... X X X X Extracts X X X X X X X X Extracts X X X X
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