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TMI Blog2016 (2) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of balance consideration within stipulated time is essence of the agreement of sale and such payments are not made within time by the transferee, such contract/agreement does not confer any righty on the transferee as envisaged u/s 53A of the transfer of the Property Act along with the provisions of section 2(47)(v) of the Act. Since the possession of the property was to be given to the developer only upon fulfillment of the conditions of the agreement i.e. last payment, therefore, there is no transfer in terms of section 2(47)(v) of the Act, thus, we affirm the stand of the ld. Commissioner of Income Tax (Appeals). - Decided in favour of assessee - ITA NO.434/Mum/2013 - - - Dated:- 5-11-2015 - Shri Joginder Singh, Judicial Member, and Shri Rajesh Kumar, Accountant Member For The Revenue : Shri Randhir Gupta-DR For The Assessee : Shri B.N. Rao ORDER Per Joginder Singh (Judicial Member) The Revenue is aggrieved by the impugned order dated 31/10/2012 of the ld. First Appellate Authority, Mumbai. The only ground raised by the Revenue pertains to deleting the addition of long term capital gain of ₹ 1,10,74,463/- holding that no capital ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king to the matrix of facts and the legal position, 1 am of the considered view that there is no 'transfer' involved within the meaning of section 2(47) r.w.s. 53(a) of the Transfer of Property Act, 1882. The appellant was always in possession of the property and never transferred the same to the developer either physically or in the records of the Municipal Corporation of Greater Mumbai. Further, the theory of 'part performance' as per the TP Act is also not applicable in the case of the appellant. Furthermore, the development agreement dated 25-11- 2000 has been terminated and the matter is under litigation before Hon'ble Mumbai High Court, the A.O. has presumed that the development agreement is still in-force and that is why he has started the computation of capital gains with the figure of ₹ 5 crores. However, the fact of the matter is that the said development agreement has been terminated by the appellant. As regards to the argument that the sum of ₹ 2,90,00,000/ - received by the appellant in pursuance of the development agreement and that this sum is still lying with the appellant, why the appellant should not be taxed on account of LTCG on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain arises to the appellant. Therefore, the A.O. is directed to recompute the income of the appellant accordingly. The ground of appeal is allowed. 2.5. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition, and analyzed, following facts are emerging:- 1. The appellant entered into development agreement with the developer M/ s Papeyon Developers Put Ltd on or about 25.1- 1.2000. Copy of Development Agreement is already on your records as submitted in our paper book containing 78 pages. Clause 8 of-the Development Agreement specifies certain terms and conditions as to be complied by the appellant and Clause 9 specifies about the terms of payment to be made to the appellant by the Developer upon completion of certain terms and conditions. 2. The appellant was leqaloumer of the premises mentioned in Third Schedule to the Development Agreement admeasuring 595.13. Sq Mtrs. which is part of land mentioned in First Schedule. 3. The appellant agreed to transfer the premises admeasuring 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the application. suffers from the bar of limitation. 11. Since the appellant has received part payment of ₹ 290 lacs only as against the agreed value of ₹ 500 lacs and a constructed flat of 2400 Sq Ft. area with certain cost attached to it, the appellant will be certainly liable for making good the payment even alongwith interest if the Court directs or if the parties come to consent terms. But certainly, the land will not be parted and will be with the appellant both tri terms of legal ownership and constructive possession. 2.6. If the totality of facts are analyzed, undisputedly, the assessee entered into a development agreement with M/s Papeyon Developers Pvt. Ltd. to develop the plot of land for which the developer was to pay a consideration of ₹ 5 crores and to handover the flat measuring 2400 sq. ft., built up area, in the proposed new building for a consideration of ₹ 25 lakh. However, the assessee was paid ₹ 2,90,00,000/- on various dates, pursuant to the development agreement but the remaining amount of ₹ 2,10,00,000/- remained unpaid. The developer neither started the work nor paid the balance amount of ₹ 2,10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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