TMI Blog2017 (2) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... PUNJAB HARYANA HIGH COURT] parties had agreed for pro-rata transfer of land.No possession had been given by the transferor to the transferee of the entire land in part performance of JDA so as to fall within the domain of Section 53A of 1882 Act. The possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of a transferee. Further Section 53A of 1882 Act, by incorporation, stood embodied in section 2(47)(v) of the Act and all the essential ingredients of Section 53A of 1882 Act were required to be fulfilled. In the absence of registration of JDA dated 25.02.2007 having been executed after 24.09.2001, the agreement does not fall under Section 53A of 1882 Act and consequently Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of the case and in law, the Hon ble ITAT erred in relying upon the order of Hon ble High Court and was justified in holding that the transfer of land by members of a Cooperative Society by signing an irremovable Power of Attorney in the name of the Developer and also by signing a Joint Development Agreement (JDA) would constitute transfer within the meaning of section 2(47)(ii) of the Income Tax Act, 1961(the Act) read with Clause (v) and Clause(vi) of the said section so as to attract Capital Gain within the meaning of section 45 read with section 48 of the Act? (iii) Whether on the facts and circumstances of the case and in law, the Hon ble ITAT erred in relying upon the order of Hon ble High Court and was justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case and in law, the Hon ble ITAT erred in relying upon the order of Hon ble High Court and was justified in holding that the Society has transferred the land through JDA on a pro-rata basis, and that only the money received against which sale deeds have also been executed could be taxed and the money to be received later cannot be presently taxed ignoring the fact that as per section 45 read with Section 48 of the Income Tax Act, in case of capital gain, the tax has to be paid on the total consideration arising on transfer which include the consideration which has been received as well as consideration which has arisen and became due and may be received later on? (vi) Whether on the facts and in the circumstances of the case and in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng total income of ₹ 19,43,830/- which was filed beyond the time limit as prescribed under Section 139(5) of the Act. Later on, proceedings under Sections 147/148 of the Act were initiated by issuing notice under Section 148 of the Act on 22.11.2013 as the assessee had not declared entire long term capital gain. The assessment was completed by the Assessing Officer on 13.02.2015 at an assessed income of ₹ 3,56,93,826/- plus agriculture income of ₹ 96,000/-. While completing the assessment, the Assessing Officer computed long term capital gain amounting to ₹ 3,53,94,940/- and added the same to the original declared income of the assessee. The assessee was one of the members of the Punjabi Housing Building Society Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding over physical and vacant position, the same tantamount to transfer. The Assessing Officer applied the provisions of Section 2(47)(v) of the Act read with Section 53A of the Transfer of Property Act, 1882 (in short, the 1882 Act ) which provides that any transaction involving allowing the possession of the immovable property to be taken or retained in part performance of contract of the nature referred to Section 53A of the Act of the 1882 Act shall be treated as transfer for purposes of the Act. Since the JDA was signed on 25.02.2007 i.e. during the previous year relevant to assessement year 2007-08, the Assessing Officer computed chargeable capital gains in that year. It was also held that there was transfer within the meaning of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Meaning to be assigned to the term possession ? (iv) Whether in the facts and circumstances, any taxable capital gains arises from the transaction entered by the assessee? After considering the relevant statutory provisions and the case law, the following conclusions were drawn:- (1) Perusal of the JDA dated 25.02.2007 read with sale deeds dated 2.03.2007 and 25.04.2007 in respect of 3.08 acres and 4.62 acres respectively would reveal that the parties had 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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