2008 (3) TMI 380 - AT - Income Tax

Computation of Capital gains - Property transfer under development agreement treated as Transfer u/s 2(47)? withdrawal of exemption u/s 54 - HELD THAT - Keeping in view the nature of the transaction between the assessee and the so-called developer, coupled with the transfer and the possession of the immovable properties, we find that the transaction amounts to conveyance in favour of the purchaser of the properties and the transfer was completed on the date when the purchases were executed and possession was handed over. By means of these documents executed by the assessee, the assessee had transferred all material rights and interests in the property, coupled with possession in favour of the purchaser which by no means is other than the transfer of the properties. In the present case, when the possession was handed over and total consideration was also agreed upon by the parties and the vendor was allowed to enjoy and entertain the property for the purpose it was taken over, then the transaction has fulfilled the conditions required under s. 53A of the Transfer of Property Act and, therefore, it is covered under the definition of transfer under s. 2 (47)(v) of the IT Act. We are of the considered view that the assessee has failed to established any case in its favour and accordingly, the appeal of the assessee is, devoid of merit. Hence, we confirm the order of the CIT(A) - In the result, the appeal filed by the assessee is dismissed.

Issues:
- Whether the transaction between the assessee and the developer under the development agreement falls within the definition of transfer as per s. 2(47)(v) of the IT Act.
- Justification of the withdrawal of exemption under s. 54 of the Act.

Analysis:
1. The appeal concerns the interpretation of a development agreement between the assessee and a developer to determine if it constitutes a transfer under s. 2(47)(v) of the IT Act, leading to the withdrawal of exemption under s. 54 of the Act.
2. The assessee inherited a property, sold it, and reinvested the proceeds in new properties. The AO reopened the assessment, withdrew the exemption under s. 54, and assessed capital gains due to subsequent sales of the newly acquired properties within three years.
3. The CIT(A) dismissed the appeal, citing the decision of the Bombay High Court in a similar case. The assessee then appealed to the ITAT, arguing that the development agreement did not amount to a transfer as defined in the Act.
4. The ITAT analyzed the agreements and possession transfers between the assessee and the developer. It considered the conditions outlined in s. 2(47)(v) and the case law precedent to determine if the transaction constituted a transfer.
5. Referring to the Bombay High Court decision, the ITAT noted that possession given to the transferee in part performance of a contract could constitute a transfer under s. 2(47)(v). It also cited a jurisdictional High Court ruling supporting this interpretation.
6. The ITAT rejected the assessee's argument that the transaction did not amount to a transfer, emphasizing that the possession transfer and agreements fulfilled the conditions of s. 53A of the Transfer of Property Act, thus falling under the definition of transfer in s. 2(47)(v) of the IT Act.
7. Relying on a ruling by the Authority for Advance Rulings, the ITAT concluded that the transaction between the assessee and the developer constituted a conveyance of properties, confirming the withdrawal of exemption under s. 54 of the Act.
8. Ultimately, the ITAT dismissed the appeal, finding that the assessee failed to establish a case against the withdrawal of exemption, as the transaction met the criteria for a transfer under the relevant provisions of the IT Act.

This detailed analysis highlights the key legal considerations and precedents applied by the ITAT in deciding the appeal related to the interpretation of the development agreement and its implications on the exemption under the IT Act.

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