9911796707
TMI Blog2017 (4) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-08, claiming following substantial questions of law:- (i) "Whether on the facts and circumstances of the case, the Hon'ble ITAT was justified in deleting the addition made by AO relying upon the decision of Hon'ble High Court in the case of C.S. Atwal Vs. CIT in ITA No. 200 of 2013, when SLP has been filed by the department in the case? (ii) 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this requirement of registration cannot be read into clause (v) of Section 2(47) of the Income Tax Act, 1961 because the said provision refers only to the contract of the nature of section 53A of the T.P. Act without going into the controversy whether or not such agreement is required to be registered? (v) Whether on the facts and in the 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 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 sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be noticed. The respondentassessee is an individual. He filed his return for the assessment year 2007-08 on 31.10.2007 declaring total income of Rs. 17,08,129/- plus agriculture income at Rs. 1,80,000/-.The return was processed under Section 143(1) of the Act. Later on, the case of the assessee was selected for Scrutiny and assessment under Section 143 (3) of the Act was completed on 30.12.2009 at the returned income. Further, vide Order under Section 154 of the Act passed on 16.06.2011, income of the assessee was rectified at Rs. 18,67,947/-. Thereafter, proceedings under Sections 147/148 of the Act were initiated by issuing notice on 03.03.2014 as the assessee had not declared entire Long Term Capital Gain. Accordingly, the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lat of 2250 square feet in kind. The total cost of one furnished flat was Rs. 1,01,25,000/-. Thus, the total consideration accruing to the assessee was Rs. 1,83,75,000/-. However, the assessee received proportionate amount of Rs. 33,00,000/- during the financial year 2006-07 & 2007-08 pertaining to the assessment years 2007-08 & 2008-09. Vide order dated 13.02.2015, Annexure A.1, the Assessing Officer under Section 143(3) of the Act held that since as per the JDA, there was grant and assignment of various rights in the property by the assessee in favour of THDC along with handing over physical and vacant possession, the same tantamount to transfer. The Assessing Officer applied the provisions of Section 2(47)(v) of the Act read with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the said case, the following issues emerged for consideration:- (i) Scope and legislative intent of Section 2(47)(ii), (v) and (vi) of the Act; (ii) The essential ingredients for applicability of Section 53A of 1882 Act; (iii) 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 poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longer and has been rendered academic.
(7) The Tribunal and the authorities below were not right in holding the assessee-appellant to be liable to capital gains tax in respect of remaining land measuring 13.5 acres for which no consideration had been received and which stood cancelled and incapable of performance at present due to various orders passed by the Supreme Court and the High Court in PILs. Therefore, the appeals are allowed."
5. Learned counsel for the appellant has not been able to controvert the applicability of the decision rendered in C.S. Atwal's case (supra). The substantial questions of law claimed in this appeal are answered accordingly. Consequently, the appeal stands dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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