TMI Blog2023 (2) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... transmitting possession in favour of the licensee within the meaning and spirit of Section 53A of T.P. Act. If that is so, then there would be neither any tangible material nor any reason for the assessing officer to believe that any income chargeable to tax had escaped assessment and the action of the assessing officer, therefore, would be without jurisdiction. Reopening of assessment u/s 147 quasshed - Decided in favour of assessee. - WRIT PETITION NO.1612 OF 2022 - - - Dated:- 10-2-2023 - DHIRAJ SINGH THAKUR KAMAL KHATA, JJ. For the Petitioner : Mr. Vasudev Ginde a/w Mr. Kumar U. Kale. For the Respondents : Mr. Suresh Kumar. JUDGEMENT (Per DHIRAJ SINGH THAKUR, J.) The Petitioner in the present Petition challenges inter alia the notice issued under Section 148 of the Income Tax Act, 1961 ( the Act ) dated 22 March 2021 relevant to the assessment year 2013- 14. By virtue of the said notice, assessment for the year 2013-14 is sought to be reopened, on the ground that the assessing officer had reason to believe that income chargeable to tax for the assessment year 2013-14 had escaped assessment within the meaning of Section 147 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of assessee during FY 2012-13. Market value of Rs.9.5994 corore or the market value of constructed saleable area of 541556 sq. ft. constitutes the consideration received by land owners. 3. Analysis of information collected/received : Records of assessee available in the office has been perused. It is found that as on 31.03.2014, assessee has received loan/deposit of Rs.24,60,00,000/- from Sai Ashray Developers Pvt. Ltd. Further, assessee has land plots in Chikhloli as per his details of immovable properties. Moreover, it is also seen that assessee has not offered capital gain during the year under consideration. Since assessee transferred, as defined u/s 2(47) of the Act, land to the builder during FY 2012-13, assessee should have offered capital gain on transfer of land during the year. On perusal of these facts and information received, prima facie, it is clear that profit arising from the said land transfer is chargeable to tax under capital gain during FY 2012-13. Thus, by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment of income which resulted into understatement of his income by more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment agreement according to which the developer was given rights only as a licensee. That such a licensee could not be said to be in possession within the meaning of Section 53A of the T.P. Act and that possession was otherwise necessary and an integral ingredient for purposes of bringing a transaction within the purview of Section 2(47)(v) of the Act. Section 2(47) of the Act defines a transfer in relation to a capital asset as under : (i) the sale, exchange or relinquishment of the assets ; or (ii) the extinguishment of any rights herein ; or (iii) the compulsory acquisition thereof under any law ; or (iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in- trade of a business carried on him, such conversion or treatment ; [or] (iva) the maturity or redemption of a zero coupon bond; or (v) any transaction involving the allowing the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53-A of the Transfer of Property Act, 1882 (4 of 1882); or (vi) [Explanation 1] . [Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 53A of the T.P. Act be attracted, first and foremost, the transferee must, in part performance of the contract, have taken possession of the property or any part thereof. Secondly, the transferee must have performed or be willing to perform his part of the agreement. It is only if these two important conditions, among others, are satisfied that the provisions of Section 53A can be said to be attracted on the facts of a given case. 12. On a reading of the agreement to sell dated 15-5-1998, what is clear is that both the parties are entitled to specific performance. (See clause 14) 13. Clause 16 is crucial, and the expression used in clause 16 is that the party of the first part hereby gives permission to the party of the second pat to start construction on the land. 14. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be possession within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and not actual physical occupation of the land. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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