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2019 (3) TMI 222 - AT - Income TaxCapital gain - transfer u/s 2(47) - Cancellation of JDA - Grant of possession of land to the developer - HELD THAT - On perusal of the order of the CIT(A), we found there is no finding or observations of the CIT(A) on the ground of possession of the property or the plea raised in the appellate proceedings. Therefore, we are of the considered opinion that the CIT(A) did not give appropriate findings whether the possession of land was granted or not by the assessee to developer. Accordingly, in the interest of substantial justice and judicial decisions, we restore the disputed issue to the file of the CIT(A) to adjudicate on the issue of granting of possession by the assessee to the developer or not and observations of the Hon ble Supreme Court in BALBIR SINGH MAINI, CS ATWAL 2017 (10) TMI 323 - SUPREME COURT OF INDIA and pass a reasoned and speaking order and further the assessee shall co-operate in submitting the information for early disposal of the appeal and the grounds of appeal of assessee are allowed for statistical purposes.
Issues:
1. Disputed transfer of property under a Joint Development Agreement (JDA) for construction and development. 2. Assessment of capital gains tax on the transfer of property. 3. Consideration of possession granted to the developer under the JDA. Issue 1: Disputed Transfer of Property under JDA The appellant challenged the CIT(A)'s order upholding the assessment of capital gains tax on the transfer of property as per the JDA. The appellant argued that the JDA was terminated due to non-compliance with conditions, and possession was not granted to the developer, thus no transfer occurred. The AO contended that the JDA constituted a transfer under section 2(47)(v) and (vi) of the Income Tax Act and section 53A of the Transfer of Property Act. The CIT(A) partially allowed the appeal, sustaining the addition of 1/4 share of the appellant as capital gains. The Tribunal noted the lack of evidence regarding the cancellation of the registered JDA and referred to relevant legal precedents on transfer of property. Issue 2: Assessment of Capital Gains Tax The AO assessed capital gains tax based on the JDA, attributing a share of the property's transfer to the appellant. The appellant contended that no possession was granted, leading to the termination of the JDA. The Tribunal observed that possession was a crucial aspect of the dispute, with the appellant arguing that no transfer occurred without granting possession. Legal references were made to highlight the significance of possession in determining a transfer under the Income Tax Act and the Transfer of Property Act. The Tribunal emphasized the need for appropriate findings on possession by the CIT(A) and restored the issue for further consideration. Issue 3: Consideration of Possession Granted The dispute centered on whether possession of the land was granted to the developer as per the terms of the JDA. The appellant maintained that possession was not given, while the AO argued in favor of the transfer based on possession. The Tribunal noted the absence of specific findings by the CIT(A) on the possession issue and directed a reassessment by the CIT(A) to determine if possession was indeed granted. The Tribunal highlighted the importance of a reasoned order considering possession and urged cooperation from the appellant for a prompt resolution. In conclusion, the Tribunal allowed the appellant's appeal for statistical purposes, emphasizing the need for a detailed assessment of possession granted under the JDA to ascertain the applicability of capital gains tax. The judgment highlighted the legal complexities surrounding property transfers under development agreements and underscored the necessity for clear findings on possession for accurate tax assessment.
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