TMI Blog2018 (3) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby direct the Assessing Officer to allow the due benefits to the assessee as provided under the Income Tax Act. Since the issue has been decided in the favour of the assessee, any decision on the grounds of reopening becomes academic in nature and hence needs no adjudication. - ITA No. 560-577/Chd/2017 - - - Dated:- 8-3-2018 - Smt. Diva Singh, Judicial Member And Dr. B.R.R. Kumar, Accountant Member Assessee By : Sh. Jaspal Sharma Department By : Sm t. Chandrakanta ORDER PER BENCH The above appeals have been filed by the Revenue and by the Assessee against the similar order of Ld. CIT(A)-2, Chandigarh dt. 02/01/2017. 2. The Revenue has raised the following grounds of appeal : 1. On the facts and in the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1882 whereas by virtue of the duly registered irrevocable special power of attorney, the developer was in complete control of the property and was in possession thereof including all rights of a defacto owner. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the essential ingredients of Section 53A of the Transfer of Property Act 1882 were not fulfilled on the mere ground that the JDA was not registered whereas section 2(47)(v) of the Income Tax Act 1961 only refers to the contract of the nature referred to in section 53A of the Transfer of Property Act and the requirement of registration of agreement under section 53A of the Transfer of Property Act cannot be read into section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of section 2(47)(vi) of the Income Tax Act were not applicable in absence of registered conveyance deed disregarding the decision of the Supreme Court in Podar Cement ltd. holding that the principle of Common law, transfer of property Act and Registration Act were not conclusive for interpretation of provisions of Income Tax Act 9. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the provisions of section 2(47)(ii) are not applicable whereas all the members of society surrendered their individual rights in the plots together with original purchase deeds in favour of society to be subsequently transferred to Tata Housing Development Company Limited (THDC) leading to extingui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Company Ltd., Mumbai (hereinafter referred to as THDC), by virtue of which the society would transfer its land for development in lieu of monetary consideration and also consideration in kind to the members of the society. The assessee was also a member of the said society owning 500 sq. yards plot of land. This arrangement made by way of joint development agreement constituted transfer of capita! asset. The total consideration was settled at ₹ 80,00,000/- as monetary consideration and furnished flat of 2250 sq. feet as consideration in kind. The total cost of the furnished flats comes to approximately Rs, 1,01,25,000/- @ 4500 per sq. feet and thus total consideration accruing to the assessee was taken by the assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon'ble Court has summarized the conclusion at para 46 of the said order as under:- 46. We summarize our conclusions as under.- 1. Perusal of the JDA dated 25.02.2007 read with sale deeds dated 02.03.2007 and 25.04.2C07 in respect of 3.08 acres and 4.62 acres respectively would reveal that the parties has agreed for pro-rata transfer 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 licensee for the development of the property and not in the capacity of a transferee. 4. Further Section 53A of 1882 Act, by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and the High Court in PILs. Therefore, the appeals are allowed. 8 Consequently, the substantial questions of law as reproduced in the beginning of the judgment are answered in the manner indicated herein before and the appeals of the assesse are disposed of accordingly. By following the judgment of the Hon'ble Punjab Haryana High Court, the Ld.CIT(A) directed the Assessing Officer to re-compute the long term capital Gains on the amount actually received by the appellant in pursuance of the said agreement. However the Ld.CIT(A) held that assessee will not be entitled for deduction u/s 54F of the Act. 6. Before us during the hearing the Ld. DR submitted that the action of the Assessing Officer is inconsonance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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