TMI Blog2016 (12) TMI 1668X X X X Extracts X X X X X X X X Extracts X X X X ..... as the amount were duly mentioned in the receipt column of the last page of the agreement and Dr. Prabhakar T. Bhandary along with Shri Birmu Bhandary, BMCL and BPCL duly confirmed the agreement. This factual matrix was not disputed by the Revenue. The objection of the Assessing Officer of non-registration of the agreement has been duly replied/considered by Hon'ble jurisdictional High Court in the case of Chaturbhuj Dwarikadas Kapadia (2003 (2) TMI 62 - BOMBAY High Court). We are in agreement with the finding of the Ld. Commissioner of Income Tax (Appeal) that there cannot be any double taxation of the same income on the same persons in two different years, which is otherwise not permissible under the Act. no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal). It is affirmed, thus, the appeal of the Revenue is dismissed. Reopening of assessment u/s 147 - Held that:- On the reasoning and the factual matrix considered by the First Appellate Authority, we find no infirmity in the same. The ld. counsel for the assessee, during hearing, also agreed to the reasoning contained in the impugned order with respect to the reopening of assessment, thus, the cross ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate that the assessee had reversionary rights in the said property, which was transferred and full consideration was received by the assessee during the previous year relevant to Assessment Year 2006-07, giving rise to capital gains, which was taxed. It seems that the ld. Assessing Officer did not appreciate the Development Agreement between the developer and the seller of the impugned property having been entered into on 28/11/2005. We find that a development agreement was entered on 09/07/2007 between M/s Fine Developers (hereinafter developer) and M/s Bhandary Metallurgical Corporation Ltd. (owner) and Mr. Birmu T. Bhandary (first confirming party), Dr. Prabhakar T. Bhandary (Second confirming party), Bhandary Conductors Pvt. Ltd.(Third confirming party) and Mr. Divakar T. Bhandary (Fourth confirming party) that the assessee has right to purchase the reversionary rights to the portion of the property, which was occupied by the Bhandary Conductors Pvt. Ltd. and as per memorandum agreement dated 28/11/2005. The assessee received consideration towards the relinquishment of reversionary rights in Assessment Year 2006-07 and got capital gain, which was computed in the previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-precious stone, and whether or not worked or sewn into any wearing apparel; (b) precious or semi-precious stones, whether or not set in any furniture, utensil or other article or worked or sewn into any wearing apparel. 7[Explanation 2.-For the purposes of this clause- (a) the expression Foreign Institutional Investor shall have the meaning assigned to it in clause (a) of the Explanation to section 115AD; (b) the expression securities shall have the meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956);] (iii) agricultural land in India, not being land situate- (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand; or (b) in any area within the distance, measured aerially,- (I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the construction. The agreement was initially signed on 18.08.1994. The permissions from the authorities were received as well as a substantial portion of the consideration was paid in year ended 31.03.1996. The commencement certificate for building construction was issued on 15.11.1996. The irrevocable authority to the builder was issued on 12.03.1999. In this case assessee claimed that transfer took place only in March 1999. It was further claimed that till that date, the assessee did not part with possession of the property, However, the court held that the date of transfer as date of entering into the development agreement on following grounds:- a. As per section 2(47)(v) the requirement of allowing possession to the taken or retained in that section does not necessarily mean physical possession of the property, but any arrangements by which the transfer confers privileges of ownership without executing conveyance. b. In the instant case the agreement was executed accompanied by limited power of attorney authorizing the builder to deal with the property and obtain necessary permissions and there was no clause provided for forfeiture/ termination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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