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TMI Blog2019 (3) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... veloper is not borne out from any evidence on record. The Tribunal, in our opinion, has rightly held that mere licence to enter into the property for measuring the land and preparing the plan for construction of the building cannot be construed as handing over physical possession of the property. Section 53A of the Transfer of Property Act also does not get attracted in such circumstances, as, admittedly, not even a part of consideration had passed on from the Developer to the Assessee in the Assessment Year 2011-2012. The mere execution of Joint Development Agreement and execution of Power of Attorney in favour of the Developer does not amount to 'transfer' within the meaning of Section 2(47) of the Act. Findings recorded by the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Tribunal in this regard are quoted below for ready reference:- 6. We have considered the rival submissions on either side and perused the relevant material available on record. Admittedly, an agreement was entered into for joint development of property on 26.8.2010 . As per the agreement, licence was given to the developer for measuring the land for preparing the plan, etc. before starting the actual construction. It is not in dispute that due to coastal zone regulation, the joint developer was not able to get the approval for the intended area of construction. The Floor Space Index was considerably reduced in the coast zone regulation and after getting necessary approval from coastal zone regulation authority, Chennai Metropo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % constructed area at the rate of ₹ 9500/- per sq.ft. Since the assessee has not received any money from the developer, the entire fund has to be treated as investment in the construction by the developer. This Tribunal is of the considered opinion that it has to be construed that the assessee invested cost of 30% of undivided share of land for the construction. In other words, the cost of 30% of undivided share of land would be deemed to be invested and deposited with developer on transfer of 30% of undivided share of land to the developer, for the assessment year 2013-14. Since the cost of 30% share of undivided land was deemed to be invested with the developer for construction, this Tribunal is of the considered opinion that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Joint Developer Agreement on 23.8.2010 and execution of General Power of Attorney preceding that on 12.8.2010 which was registered on 26.8.2010 does not amount to ' transfer ', as defined under Section 2(47) of the Act, which is quoted below for ready reference:- (47) - transfer , in relation to a capital asset, includes, - (i) the sale, exchange or relinquishment of the asset; or (ii) the extinguishment of any rights therein; or (iii) the compulsory acquisition thereof under any law; or (iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment; or (iva) the maturity or redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment by Developer to the land owner was made by 31.3.1996 and the Developer had been requested to complete the formalities and obtain permission, but, since the Bombay Municipal Corporation issued the commencement certificate permitting construction of a building upto plinth level only, the building plan came to be amended and ultimately Power of Attorney was executed on 12.3.1999 and therefore, the Assessee claimed that the capital gains liability would arise only in the Assessment Year 1999-2000 which contention was finally upheld by the Bombay High Court. The only arithmetical error found in that case by Bombay High Court was that in the order of the Tribunal, the date of possession of property by the Developer was shown as 1.4.1996 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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