TMI Blog2018 (4) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee developer could not have entered into full fledged possession in performance of the agreement in view of statutory bar u/s. 63 of the Bombay Tenancy and Agricultural Land Act, 1948 (applicable in Gujarat state). There is no material indicating the above lands being converted to non agricultural. The same sufficiently indicates that assessee’s license right existed on paper only. Hon’ble Bombay high court’s decision in Manoj B. Joshi’s case (2008 (7) TMI 1007 - BOMBAY HIGH COURT) holds that such an amount is not to be taxed as income u/s.2(24) of the Act. Assessee’s above development license acquired in its all three agreements does not amount to part performance requiring compulsory registration u/s.17 of the Registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that relinquishment of rights was income from business operation and condition for development agreement has to be taxable business income. 4. A perusal of the aforementioned grievance of the revenue shows that the ld. CIT(A) erred in not following the order of his predecessor for A.Y. 2009-10. 5. The ld. counsel for the assessee drew our attention to the order of the Tribunal in ITA NO. 212/Ahd/2014 dated 29.08.2017 by which the Tribunal has set aside the findings of the ld. CIT(A) and directed the A.O. to delete the impugned addition. 6. No distinguishing fact has been brought on record. A perusal of the order of the authorities below show that facts are identical to the facts of A.Y. 2009-10 and on finding parity of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a vendor breaching the relevant agreement is not an actionable claim so as to be transferred u/s.6(e) of the Transfer and Property Act giving rise to assessable capital gains. Their lordships of Calcutta High Court (supra) further reiterate the same view Mr. Madhusudan s case is that the amount in question has been rightly assessed as assessee s business income. We find no merit in the instant plea as the assessee has neither paid any consideration money nor carried out any development activity. It had merely obtained a licensee right to enter into possession into three parcels of land not creating any easement or interest therein as per Section 52 of the easement law. We further observe that the assessee developer could not have entered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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