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TMI Blog2018 (5) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer has wrongly assumed jurisdiction on the face of the fact that though the Developer Agreement was executed on 15.01.2007, but however, the delivery of possession was given only on 01.07.2007 and in furtherance to that the building plan was approved/ sanctioned by the B.D.A on 04.04.2009 and under the circumstances the notice issued U/s. 148 relating to the Asst. Year 2007-08, invoking the provision of Section 2(47) of the I.T. Act, 1961 and consequential assessment thereof are not only illegal but without the sanction of law and exceeding jurisdiction. 3. For that in absence of any consideration accrued or received to the assessee at the time of entering into the Development Agreement, charging section -45 and computation section -48 are not complied with and as such there could be no computation of capital gain and therefore the present assessment including the 1st Appellate Order are without jurisdiction and or exceeding jurisdiction so also illegal and arbitrary. 4. For that without prejudice to the grounds at -3 above, in absence of any consideration accrued or received, the present computation of capital gain basing on a hypothetical value are contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e & Commercials (P) Ltd. on dt.15.1.2007 for construction and sale of 9 dwelling units on his land situated at Plot N0.137/A, Surya Nagar, Bhubaneswar. On the same day, the assessee also executed an irrevocable general power of attorney(GPA) with M/s. Odyssa Home & Commercials (P) Ltd. The Assessing Officer observed that a close reading of the both the agreement and GPA lead to the conclusion that the assessee has delivered physical possession of the land to the builder on the day of execution of GPA and agreement i.e. on 15,1.2007. The power and control of land was conferred on the builder/developer under GPA. Accordingly, he held that there was transfer of capital asset within the meaning of section 2(47) of the Act read with section 53A for transfer of Property Act. The possession of land was taken by the builder in part performance of the contract for transfer of the property. The Assessing Officer relied upon the decisions in the cases of Rubab M. S. Kazerani v. JCIT (ITAT, Mum-TM), 91 ITD 429, and Lalitha Ramaswamy v. ITO(ITAT-Mum), 75 ITD 293, etc. in support of the conclusion that the landed property was given possession on dt.15.1.2007 to the builder in part performance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delivery of possession of the land was delivered to the developer/builder only on 01.07.2007, Copy of the possession letter is annexed herewith at Annexure-II. Without prejudice to the submission at (1) above, it is respectfully submitted that the approval of the Building Plan was sanctioned by the Bhubaneswar Development Authority vide this Sanction Letter No. 4772/BP/BDA, Bhubaneswar dated 04.04.2009 only. (Annexure-III) On the facts as above, though the development agreement was executed on 15.01.2007 & the delivery of possession was given on 01.07.2007 but however, there was no development activity on the land till such time, the Building Plan was approved/ sanctioned by B.D.A. i.e. 04.04.2009. Since the intent of the developer agreement was given effect to only after 04.04.2009, in absence of any performance, till such time, the transaction cannot be brought into the mischief of Section 53A of the Transfer of Property Act & thereby as a deemed transfer U/s. 2(47) of the I. T. Act, 1961. In view of the facts as above, the assumption of the Assessing Officer i.e., I. T. O, Ward-1(3), Bhubaneswar that the delivery was made on the same day i.e., on the date of the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 107 with Odyssa Home & Commercials (P) Ltd., for construction of flats in the landed property situated at Plot No.137/A, Surya Nagar, Bhubaneswar and delivered the physical possession of the land to the builder Odyssa Home and Commercials Pvt ltd. The appellant also executed GPA in favour of the builder for the purpose on 15.1.2007 and as per the same the builder was empowered to carry out all the works necessary starting from obtaining approved plan to construct the building. Accordingly, within the meaning of section 2(47) of the Act r.w.s 53A of the Transfer of Property Act, the land was delivered to the builder Odyssa Home & Commercials (P) Ltd., in part performance of the contract. The Assessing Officer has correctly considered that the long term capital gains has arisen on 15.1.2007 when the landed property was handed over to M/s. Odyssa Home & Commercials Pvt Ltd." 9. Before us, ld A.R. of the assessee relied on the decision of this Bench of the Tribunal in the case of Sri Laxmidhar Panda vs ACIT in ITA No.501/CTK/2014 for the assessment year 2009-2010 order dated 22.9.2017 and submitted that as the development agreement dated 15.1.2007 is not registered and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 53A, which would then in turn not require registration. As has been stated above, there is no contract in the eye of law in force under Section 53A after 2001 / unless the said contract is registered. This being the case, and it being clear that the said JDA was never | registered, since the JDA has no efficacy in the eye of law, obviously no "transfer" can be said to have taken place under the aforesaid document." 12. In the instant case, the undisputed facts are that the agreement dated 15.1.2007 with the builder M/s. Odyssa Home & Commercials (P) Ltd., for construction and sale of 9 dwelling units by the assessee on his land situated at Plot No.137/A, Surya Nagar, Bhubaneswar was not registered. Therefore, in view of the decision of Hon'ble Supreme Court in the case of CS Atwal, quoted above, the same would not amount to transfer u/s.53A of the Transfer of Property Act, 1882 and consequently cannot be a transfer within the meaning of section 2(47)(v) of the Act. Thus, there cannot be any capital gains in the hands of the assessee which can be brought to tax during the year under consideration. Therefore, respectfully the decision of the Hon'ble Supreme Court quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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