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TMI Blog2019 (12) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals). This court does not find any legal infirmity in the view adopted by the Tribunal so as to give rise to any question of law, much less, a substantial question of law, warranting interference. - R/TAX APPEAL NO. 688 of 2019 - - - Dated:- 24-9-2019 - HONOURABLE MS.JUSTICE HARSHA DEVANI AND HONOURABLE MS. JUSTICE SANGEETA K. VISHEN MRS MAUNA M BHATT(174) FOR THE APPELLANT(S) NO. 1 ORAL ORDER PER : HONOURABLE MS.JUSTICE HARSHA DEVANI 1.By this appeal under section 260A of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'), the appellant Revenue has called in question the order dated 26.4.2019 made by the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered development agreement on 26.11.2009 with a developer/organiser, namely, M/s. Balaji Associates. On a perusal of the terms and conditions of the agreement, the Assessing Officer found that the assessee had granted the developers all the rights of development and construction on the said land. Furthermore, all the rights for booking/selling the units developed on the said land had also been granted to the developer. The Assessing Officer accordingly, was of the view that by virtue of the development agreement, the assessee had transferred the said subject land to the developer within the meaning of section 2(47)(v) of the Act. He, accordingly, treated the transaction as a sale of land and calculated the profit arising therefrom at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the developer was put into real and lawful possession of the property and the right was given to him to develop the property as per his own choice without any specifications by or interference of the assessee. The assessee no longer retained the right to get back the property and that the development was to be done by the developer as an absolute owner of the property and not in terms of the directions of the assessee. 5.1 It was further submitted that the Assessing Officer has further found that the consideration package was fixed for giving all these rights which clearly indicates that this was a case of transfer of property and not of a contract inasmuch as the assessee ceased to have any legal right to develop the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the facts of the present case. It was submitted that the Tribunal was, therefore, not justified in confirming the order passed by the Commissioner (Appeals) and that the appeal requires consideration on the questions as proposed or as may be formulated by this court. 6.This court has considered the submissions advanced by the learned senior standing counsel for the appellant and has perused the record of the case. 7.On a perusal of the order passed by the Commissioner (Appeals), it emerges that he has recorded that in the appellate proceedings, the assessee had explained the terms of the development agreement in detail and submitted that there was no transfer of possession of land as held in the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly accepted the argument of the assessee that the subject land was part of the stock in trade of the assessee. He further observed that the provisions of section 2(47) of the Act are applicable to only capital assets and the subject land being held as stock in trade by the assessee, the provisions of section 2(47) of the Act are irrelevant. 7.2 The Commissioner (Appeals) further examined the clauses of the development agreement and found that the assessee was required to collect the price of land from the developer as per the jantri rate from time to time as and when the construction is completed. Further, as per the condition 2 of the development agreement, consideration of ₹ 1 crore was to be paid as and when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings recorded by the Commissioner (Appeals), namely, that in terms of the development agreement there is no transfer of possession of land. More importantly, the land was held as stock in trade and, therefore, the provisions of section 2(47) of the Act relating to capital assets would not apply. 9.From the facts as noted herein above, it emerges that in terms of the development agreement between the assessee and the developer, there was no transfer of possession of land and the assessee retained the ownership of the land while the developer was given the right to develop the land as well as to find the buyers, to decide on the person who would buy the land as well as the sale price of the flats. In terms of the developme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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