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TMI Blog2018 (4) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ients of Section 53A of 1882 Act were required to be fulfilled. In the absence of registration of JDA the agreement does not fall under Section 53A of 1882 Act and consequently Section 2(47)(v) of the Act does not apply. In view of cancellation of JDA no further amount has been received and no action thereon has been taken. The issue of exigibility to capital gains tax having been decided in favour of the assessee, the question of exemption under Section 54F of the Act would not survive any longer and has been rendered academic- Decided in favour of assessee. - ITA No. 352 of 2017 (O&M) - - - Dated:- 14-11-2017 - Mr. Ajay Kumar Mittal and Mr. Amit Rawal, JJ. Present: Mr. Urvashi Dhugga, Senior Standing Counsel for the appellant. JUDGMENT Ajay Kumar Mittal,J. This appeal has been preferred by the appellant-revenue under Section 260A of the Income Tax Act, 1961 (in short, the Act ) against the order dated 12.01.2017, Annexure A.3, passed by the Income Tax Appellate Tribunal, Division Bench, Chandigarh (in short, the Tribunal ) in ITA No. 682/CHD/2016, for the assessment year 2007-08, claiming following substantial questions of law:- (i) Whether on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9UA? (v) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT is right in holding that the essential ingredients of Section 53A of the Transfer of Property Act, 1882 were not fulfilled when the irrevocable Special Power of Attorney was duly registered and there was no requirement of the JDA being registered? (vi) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT is right in holding that the essential ingredients of Section 53A of the Transfer of Property Act, 1882 were not fulfilled by not appreciating the observations of the Hon ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Limited Vs. State of Haryana and Anr. 183 (2011) DLT 1 (SC) and also the observations of the Hon ble Supreme Court in order dated 01.07.2014 in the case of Sanjeev Lal etc. Vs. Commissioner of Income Tax, Chandigarh Anr. in Civil Appeal Nos. 5899, 5900 of 2014 and in the case of Madathil Brothers Vs. Deputy Commissioner of Income Tax (301 ITR 345)? (vii) Whether on the facts and circumstances of the case and in law the Hon ble I.T.A.T is right in holding that the possession delivered, if at all, was as a licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 is no provision under the law to allow the assessee to pay capital gains tax beyond the year in which the transfer takes place? (xiii) Whether the Hon ble I.T.A.T. is right in not adjudicating on the crucial issue of applicability of Section 2(47)(ii) and 2(47)(vi) of the Income Tax Act 1961 in the case of the assessee as the provisions of Section 2(47)(ii) and 2(47)(vi) also make the assessee liable for capital gains under the Income Tax Act 1961? (xiv) Whether on the facts and circumstances of the case and in law the Hon ble I.T.A.T. is right in not considering the contemporaneous documents pertaining to a transaction which have to be read as a whole as held by Apex Court judgment in S.Chathanatha Karyalar Vs. The Central Bank of India Ltd. in AIR 1965 SC 1856 and in the instant case these are Agreement to Sell , Possession letter , Irrevocable Special Power of Attorney and Resolution by the members allowing the society to enter into a contract with the develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the controversy involved as narrated in the appeal may be noticed. The return of income was filed on 02.12.2013 in response to notice issued under Section 148 of the Act, declaring an income of ₹ 31,33,560/-. Thereafter, assessment was completed under Section 143(3) of the Act on 16.02.2015 by determining total income at ₹ 1,84,16,030/- after making addition of ₹ 1,52,82,465/- on account of income from long term capital gain. At the time of assessment proceedings, the Assessing Officer noticed that a housing society named as Punjabi Housing Building Society Limited, Mohali consisting of 95 members out of which one of them was assessee also, was formed, which was owner of 21.2 acres of land at Village Kansal, District Mohali. The society entered into a Tripartite Joint Development Agreement (JDA) dated 25.02.2007 with M/s Hash Builders Private Limited, Chandigarh (HASH) and M/s Tata Housing Development Company Limited, Mumbai (THDC), by virtue of which the society would transfer its land for development in lieu of monetary consideration and also consideration in kind to the members of the society. The assessee was also one of the members of the said society o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.02.2007 so as to fall within 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 paid on that and sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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