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TMI Blog2017 (5) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue in case of Shri C.S. Atwal [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT ] This fact is not denied even by the Revenue. Since the issue has been decided by the higher authority and the learned CIT (Appeals) has passed the order following the decision of the Hon'ble Jurisdictional High Court, we find no reason to interfere in the same. In view of the same, all the grounds raised by the Revenue are dismissed. - ITA No. 191 of 2017 (O&M) - - - Dated:- 8-5-2017 - MR . AJAY KUMAR MITTAL, AND MR . RAMENDRA JAIN, JJ. For the Appellant - Revenue : Mr . Vivek Sethi, Senior Standing counsel ORDER Ajay Kumar Mittal,J . 1. This order shall dispose of ITA Nos.191 and 192 of 2017, as according to the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in law, the Hon ble ITAT erred in relying upon the order of Hon ble High Court and was justified in holding that no possession had been given by the transferor to the transferee of the entire land in part-performance of Joint Development Agreement dated 25.02.2007 so as to fall within the scope of Section 53A of the Transfer of Property Act 1882 ignoring the fact that the combined reading of the clauses of the duly registered irrevocable Special Power of Attorney and the JDA would clearly show that the developer was handed over possession of the property whereby the assessee was authorized to enter upon the property not only for the purposes of development but other purposes also, including mortgage and sale of that property? (iv) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be received later on? (vi) 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 concluding that the assessee has already terminated the agreement and has revoked the irrevocable Power of Attorney, ignoring the vital fact that the said irrevocable Power of Attorney could not be revoked for any reasons without obtaining specific prior written consent of THDC/HASH and no document showing the consent of THDC for revocation of this irrevocable Power of Attorney was ever been produced by the assessee? (vii) 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 bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of land in village Kansal. It had allotted plots measuring 500 square yards to its 65 members, 1000 square yards to its 30 members and 4 plots of 500 square yards each were retained by it. It entered into a tripartite Joint Development Agreement (JDA) dated 27.07.2007 with Hash Builders Private Limited, Chandigarh (HASH) and Tata Housing Development Company Limited, Mumbai (THDC). Under the JDA, it was agreed that HASH and THDC shall undertake development of 27.3 acres of land owned and registered in the name of the society in respect of which it would give development rights in lieu of consideration. The agreed consideration was to be disbursed by THDC through HASH to each individual member of the society having plot size of 500 square ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. The Assessing Officer concluded that the assessee was liable to tax during the assessment year under consideration on the entire amount received/receivable in future under the head capital gains and thus made net addition of ₹ 1,49,25,000/- on account of long term capital gains taxable in the hands of the assessee. Aggrieved by the order, the assessee filed an appeal before the Commissioner of the Income Tax (Appeals) [CIT(A)]. Vide order dated 27.08.2015, Annexure A.2, the CIT(A) deleted the addition of ₹ 1,49,25,000/- relying upon the judgment of this Court in the case of C . S . Atwal and others Vs . The Commissioner of Income Tax, Ludhiana and another, ITA No. 200 of 2013 decided on 22.07.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the domain of Section 53A of 1882 Act. (3) The possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of a transferee. (4) Further Section 53A of 1882 Act, by incorporation, stood embodied in section 2(47)(v) of the Act and all the essential ingredients of Section 53A of 1882 Act were required to be fulfilled. In the absence of registration of JDA dated 25.02.2007 having been executed after 24.09.2001, the agreement does not fall under Section 53A of 1882 Act and consequently Section 2(47)(v) of the Act does not apply. (5) It was submitted by learned counsel for the assessee-appellant that whatever amount was received from the developer, capital gains tax has already been pai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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