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TMI Blog2020 (3) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... income on 30.10.2007 for the Assessment Year 2007-08 admitting total income of Rs. 37,91,560/-. Since there was a reason to believe that income has escaped assessment, the assessment was reopened under Section 147 of the Income Tax Act, 1961, [in short ''the IT Act''] and a notice under Section 148 of the said Act was issued. The said notice was followed by notices under Sections 143[2]/142[21] of the IT Act. 2. Subsequently, the assessment was completed under Section 143[3] read with Section 147 of the IT Act on 31.03.2005, assessing the total income at Rs. 40,28,24,591/-. The appellant/assessee Company, aggrieved by the said Order of Assessment dated 31.03.2005, filed an Appeal before the Commissioner of Income Tax [App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and also granted some rights to the Developer to raise any loan for development and construction of the project from any Financial Institutions and further taken note of the fact that in the light of the fact that the Assessing Officer has reached the conclusion that the transfer in terms of Section 2[47][v] of the Act took place on the date of execution of the Joint Venture Agreement dated 10.09.2006, followed by the General Power of Attorney dated 12.09.2006, executed by the appellant/assessee Company in favour of the Developer unequivocally granted bundle of possessory rights including the right to mortgage 77.5% of the property and raise loan etc. 5. The Appellate Authority, upon considering the grounds urged by the appellant/assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a transfer under Section 2[47][v] of the IT Act in the Assessment Year 2007-08 for the reason that the possession and control of the property is already vested with the transfer and that apart, the Joint Development Agreement has also not been cancelled and is still in operation. The ITAT also dealt with the issue with regard to the quantification of the Capital Gains and after discussing the same in paragraph No.10, had remanded both the appeals to the Assessing Officer, for fresh consideration as to the computation of the Capital Gain. 10.The appellant/assessee Company, challenging the legality of the order in respect of rejection of the other grounds, filed the present Tax Case Appeals. (3)The Tax Case Appeals were admitted on 18.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of 2019:- 1. Whether on the facts and circumstances of the case, the Tribunal was right in law in holding that the transactions in hand envisage a ''transfer'' exigible to tax by reference to Section 2[47][v] of the Income Tax Act, 1961, read with Section 53-A of the Transfer of Property Act, 1882? 2. Whether on the facts and circumstances of the case, the Tribunal was right in law in remitting the matter to the files of the respondent for the limited purpose of determining the sale consideration and to compute capital gains at 27% share of the constructed area? (4)The learned counsel for the appellant/assessee Company has invited the attention of this Court to the judgment rendered by the Hon'ble Supreme Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, prays for dismissal of these appeals. (7)This Court has carefully considered the rival submissions and also perused the materials placed before it. (8)It is relevant to extract paragraph Nos.23, 27 and 28 of the decision reported in [2017] 398 IT 531 [SC] : [2017] 251 TAXMAN 0202 [SC] - [2 Judges Bench] [Commissioner of Income Tax V. Balbir Singh Maini] which reads thus:- ''23. A reading of the JDA in the present case would show that the owner continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purpose - the purpose being to develop the property, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the assessment under Section 147 of the IT Act, the same depends upon facts and circumstances of each case and therefore, it cannot be construed as a Substantial Question of Law. Insofar as Question No.2 in TCA.No.45/2019 is concerned, a perusal and reading of the impugned order would disclose that it is a case of conditional remand with some observations. (10)In the light of the ratio laid down in Balbir Singh Maini's case [cited supra], as affirmed in the Judgment reported in 2020 [421] ITR 46 [SC] [3 Judges Bench] - Seshasayee Steels' case, the questions as to the transfer exigible to tax with reference to Section 2[47][v] of the Income Tax Act, 1961 read with Section 53-A of the Transfer of Property Act, 1882, is remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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