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TMI Blog2017 (4) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... per Sec.53(A) of the Transfer of Property Act cannot be said to have been attracted, so as to attract the provisions of Capital Gains tax and for the aforesaid proposition, Ld.CIT(A) had relied on the decision of the Hon’ble Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia Vs. Commissioner of Income Tax, (2003 (2) TMI 62 - BOMBAY High Court ) Revenue has not placed any material on record to controvert the findings of Ld.CIT(A) nor has pointed out as to why the ratio of decision rendered by Hon’ble Bombay High Court in the case of Chaturbhuj Dwarkadas (supra) cannot be applied to the facts of the present case. In view of the aforesaid facts, we find no reason to interfere with the Ld.CIT(A) and thus the grounds of Revenue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal before us and has raised the following grounds : 1. On the facts and in the circumstances of the case, the Learned Commissioner of Income-tax (Appeals) erred in deleting the addition of ₹ 66,77,250/- on account of Long Term Capital Gain. 2. On the facts and in the circumstances of the case, the Learned Commissioner of Income-tax (Appeals) erred in holding that in case of a Development Agreement with certain conditions there is no transfer of property and proceeded to incorrectly rely upon the decision of Hon ble Bombay High Court in Chaturbhuj Dwarkadas Kapadia Vs. Commissioner of Income Tax (Appeals) (260 ITR 491). 3. Before us, at the outset, Ld. D.R. submitted that the sole controversy is with respect to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and City Corporation Limited Pune from City Corporation Limited. Therefore, I do not consider the Development Agreement as additional evidence filed before me and I do not refer the same to the learned AO under Rule 46A. I proceed to decide this appeal. 2.13 In this case, the learned AO has computed Long Term Capital Gain whereas the Appellant has contended that there is no 'transfer' as the Appellant could not handover possession of the land as it did not have possession of the land with him. The Appellant has drawn attention to the various clauses of the agreement in support of this contention. I have gone through the agreement and I find myself in agreement with the Appellant. 2.14 The capital gain u/s 45 of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 2.15 From the above, it can be stated that partperformance has following characteristics : 1. The contract entered into on behalf of the transferor and the transferee must be in respect of an immovable property. 2. The contract must be a written contract. 3. There must be some consideration. 4. The contract must state the terms of the transfer with reasonable certainty. 5. The transferee must have taken the possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision show that even from this perspective, there is no part performance and consequently there is no transfer u/s 2(47). The honourable ITAT has held that, 55 We are in considered agreement with the views so expressed in this commentary on the provisions of the Transfer of Property Act. It is thus clear that 'willingness to perform' for the purposes of Section 53A is something more than a statement of intent; it is the unqualified and unconditional willingness on the part of the vendee to perform its obligations. Unless the party has performed or is willing to perform its obligations under the contract, and in the same sequence in which these are to be performed, it cannot be said that the provisions of Section 53A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale and even the ingredients of Part Performance as per Sec.53(A) of the Transfer of Property Act cannot be said to have been attracted, so as to attract the provisions of Capital Gains tax and for the aforesaid proposition, Ld.CIT(A) had relied on the decision of the Hon ble Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia Vs. Commissioner of Income Tax, (2003) 260 ITR 491 (Bom) and another decision of Hyderabad Tribunal. Before us, Revenue has not placed any material on record to controvert the findings of Ld.CIT(A) nor has pointed out as to why the ratio of decision rendered by Hon ble Bombay High Court in the case of Chaturbhuj Dwarkadas (supra) cannot be applied to the facts of the present case. In view of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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