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TMI Blog2018 (10) TMI 1867X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the possession of the land on receipt of the security deposit. These facts, which have been brought out in the Tribunal s order in the case of co-owner s case referred to supra, have not been disputed or dislodged by the Revenue. This being so, the principles laid down in the case of Commissioner of Income Tax Vs.Balbir Singh Maini [ 2017 (10) TMI 323 - SUPREME COURT] clearly do not apply to this case in so far as the transaction has gone through and more than anything else possession of the immovable property has already got transferred in line with the provisions of Sec.2(47)(v) during the assessment year 2007-08 itself. This being so, respectfully following the decision of Co-ordinate Bench of this Tribunal in the case of co-owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gains. It was a submission that the ld. Assessing Officer had invoked the provisions of the section 50C of the Act and had arrived at total taxable income at 17,84,14,787/-. Aggrieved, the assessee preferred an appeal before the Ld.CIT(A). It was a submission that the assessee had challenged the addition before the ld.CIT(A) and had submitted that the JDA was entered on 27.06.2006 and the capital gains had arisen only during the assessment year 2007-08. It was a further contention that the ld. Assessing Officer had wrongly adopted guideline value pertaining to assessment year 2014-15 and wrongly invoked the provisions of the section 50C of the Act. Further, the assessee had relied upon the decision of Co-ordinate Bench of this Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word in a deed as is most agreeable to the intention of the parties. There are grounds appearing from the face of the instrument affording proof of the real intention of the parties, then that intention would prevail against the obvious and ordinary meaning of the words used. Entering into the property and handing over of the possession was instantaneous thus entire conspectus of the case has attracted the provision of section 45 of the Act on fulfilment of conditions laid down in section 53A of the Transfer of Property Act. In our opinion, the real intention of the parties herein is to be seen. 10. Accordingly, we decide the above issue relating to transfer of property under section 2(47)(v) of the Income-tax Act in favour of the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2(47)(v). The argument that the deeds in respect of the sale of flats were not registered/executed is not a relevant consideration so far as provisions of sub-clause (v) of section 2(47) are concerned. The completion of transfer of an immovable property as per the general law is not a requirement for the applicability of the provisions of sub-clause (v) of section 2(47). Thus, the taxability of long term capital gains only taxed in the F.Y 2006-07 relevant to A.Y 2007-08 and ordered accordingly. It was a submission that the Ld.CIT(A) had placed reliance upon decision of Co-ordinate Bench of this Tribunal in the case of one of Co-owner s case wherein the issue was decided in favour of assessee. It was the contention of the ld.D.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The JDA fell through. The transaction never materialized income did not accrued at all. The JDA not fell through. The JDA was completed and the income accrued in this case which is taxable in the A.Y. The assessee did not acquired any right to receive income which was dependent upon the necessary permissions being obtained. The Developer acquired the rights to receive the income on the date of signing the JDA. The only one common point in both the case is that the JDA was not registered. But all other facts are totally different. The Department started to tax the capital gains on the basis of the actual registration date of residential units and commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction has gone through and more than anything else possession of the immovable property has already got transferred in line with the provisions of Sec.2(47)(v) of the Income Tax Act, 1961 during the assessment year 2007-08 itself. This being so, respectfully following the decision of Co-ordinate Bench of this Tribunal in the case of co-owner s case, The I.T.O Vs. Shri Shafiq Mohammed Shah vide order dated 11.05.2017 referred to supra, it is directed that the long term capital gains is taxable only during the assessment year 2007-08 and not during the assessment year 2014-15. Consequently, the appeal of the Revenue stands dismissed. 6. In the result, the appeal of the Revenue is dismissed. Order pronounced on 05th October, 2018, at Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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