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TMI Blog2017 (5) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... ta transfer of land whereas by virtue of executing the Joint Development Agreement (JDA) read with possession letter and duly registered irrevocable special power of attorney, there was a grant and assignment of all rights in the entire property in favour of Tata Housing Development Company Limited (THDC) and so 'transfer' for the purposes of section 2(47)(v) of the Income Tax Act 1961 read with Section 2(47)(ii), 2(47)(vi), and explanation below 2(47) and Section 269UA had taken place. 2. On the facts and in the circumstances of the case and in law, the Ld. CST(A) has erred in holding that that no possession had been given by the transferor to the transferee of the entire land in part performance of the JDA read with possession l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 269UA. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of the transferee whereas all possible rights in the property including the right to sell etc, had been given to the builder. 6. On the facts and in the circumstances of the case and in law, the Ld CIT(A) has erred in bifurcating the agreement into different portions and allowing the assessee to pay capital gains tax only when cash or money is received whereas section 45 of the Income Tax Act 1961 is a deeming provision where capital gain is liable to be taxed in the year in which transfer takes place and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tue of the decision of Hon'ble jurisdictional High Court in the case of Shri C.S. Atwal Vs CIT & another (2015) 378 ITR 244 (P&H). Inviting attention to the impugned order, it was his submission that infact it is this decision, which has been followed by the ld. CIT(A). The ld. Sr.DR Mr. S.K.Mittal, relying upon the assessment order did not dispute this position. 3. The relevant facts of the case are that the AO issued notice u/s 148 of Income Tax Act on the basis of information received that assessee is a member of Punjabi Co-op Housing Society Ltd. The said society entered into a tripartite joint development agreement with Hash Builder Pvt. Ltd. in which through this agreement the entire land of the society was transferred to Tata Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feet to the appellant, fn view of the above reasons, proceeding u/s 147 was initiated and notice u/s 148 was issued to the appellant on 25.07.2013. In response to notice u/s 148 the appellant intimated on 16.08.2013 that the return originally filed on 15.03.2008 declaring total income of Rs. 15,59,230/- be treated as the return filed in response to the said notice which included capital gains of Rs. 14,10.429/-. 4. Considering these facts, the appeal of the assessee was allowed by the ld. CIT(A) on the following reasoning : "7.2 During appeal proceedings, the Ld. A/R submitted that there are 95 members of the said society who filed appeal on identical facts and the appeal has been decided by Hon'ble Punjab and Haryana High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all, was as a licensee 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 if 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 u/s 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 paid on that and sale deeds have also been executed. In view of cancellation of JDA dated 25.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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