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TMI Blog2021 (5) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer . AR candidly accepted that no capital gain was offered for such assessment year. In view of the `transfer taking place in such year to that extent, it is held that the resultant capital gain arising on the transfer of 80R land to Akash Erectors Pvt. Ltd. in the year 2010 should be charged to tax on substantive basis in the assessment for the A.Y. 2011-12 subject to the provisions of Chapter IV-E. As regards the balance transfer taking place in the A.Y. 2014-15 as per the assessee s own version, when he transferred the remaining property (after excluding 80R land transferred to Akash Erectors Pvt. Ltd.) to the eventual buyers, namely, Sh. Rajendra Bhosale and Sh. Vikas Shinde pursuant to transfer of land in the year 2013 along with Dabhade family and Akash Erectors Pvt. Ltd., the capital gain should be charged to tax on substantive basis in the A.Y. 2014-15. AO will take into consideration all the amounts received earlier from Samrat Builders and Developers and then from Sh. Rajendra Bhosale and Sh. Vikas Shinde. AO will provide adequate opportunity of hearing to the assessee in determining the correct amount of capital gains for the A.Ys. 2011-12 and 2014-15. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of M/s. Samrat Builders and Developers and also receiving a part of the agreed consideration, amounted to `transfer under the Act. Thereafter, he computed short term capital gain and long term capital gain accordingly and included the same in the total income of the assessee. During the course of the first appellate proceedings, the assessee, inter alia, submitted copies of Cancellation agreements dated 20.04.2013 of the earlier two Agreements dated 25.01.2008 and 29.02.2008 made with M/s. Samrat Builders and Developers. Since this evidence came into existence after the passing of the assessment order, the Ld. CIT(A) sent the same to AO and invited his comments. In the remand report dated 31.12.2014, the AO came to hold that subsequent Cancellation deeds were not decisive qua the income-tax proceedings for the year under consideration as the `transfer took place during the year under consideration u/s 2(47)(v) of the Act, thereby requiring the inclusion of capital gain in the total income. The ld. CIT(A) got convinced with the assessee s submissions and ordered to delete the additions, against which, the Revenue has come up in appeal before the Tribunal. 4. We have heard b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development agreement dated 16.03.2007 and remaining 2H 1R land acquired by the assessee from Dabhade family under a registered development agreement on 18.02.2008. Thus, total area of two parcels of plots comes to 2H 41R which the assessee gave for development. As the property was, in fact, not earlier transferred in the name of assessee, the second Agreement with M/s. Samrat Builders and Developers was entered with Dabhade family members and the assessee as a `Consenting party . A copy of the Agreement in vernacular language along with its English translation has been placed on record. Clause 2 of the Agreement states that the vendor has: assigned the rights of development to the developer . Clause 4 of the Agreement states that: As a part of this development agreement, the Vendor has given a right and license to the Developer to enter into the said property as a licensee . Para 7 of the preamble part of the Agreement clearly states that the vendor, purchaser and the coowner Kamathe had filed returns u/s 6(1) of ULC Act and vide an order passed by the Competent Authority the vendor and co-owner have been declared as holders of excess land 22596.80 sq.mtrs. It has also been men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. and ₹ 2.15 crore to Kamthe family in lieu of the total transfer of 4H 1R land to them. 8. The above narration of facts clearly discerns that the assessee entered into two Agreements with M/s. Samrat Builders and Developers for development of 4H 1R land in 2008. The Developer was allowed to enter the property mere as a Licensee and not as an owner. The land was subject of litigation under the ULC Act at that point of time inasmuch as a part of the total land was earlier held by the Competent authority to be excess land and as such, the same was recorded in the name of Government of Maharashtra, which could not have been validly transferred to Samrat Builders. The assessee transferred a piece of such land in the year 2010, after getting clearance of the title, to M/s Akash Erectors Pvt. Ltd. The development Agreements of the year 2008 were cancelled in the year 2013, when a final registered sale deed was executed transferring total of 4H 1R land jointly by the three parties to Rajendra Bhosale and Vikas Shinde on 20.04.2013. 9. The AO has taken cognizance of the definition of transfer u/s 2(47)(v) of the Act read with section u/s 53A of Transfer of Property Act to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panorama of the extant case under consideration is almost similar. Firstly, no possession was given to the developer under the JDA as an owner. Secondly, a part of the land at the material time in 2008 vested in the Government of Maharashtra. Thirdly, the transaction admittedly fell through and a part of the land was eventually sold to M/s Akash Erectors Pvt. Ltd. in 2010 and the remaining part to the `final buyers in the year 2013, all the parties being at arm s length. If the transfer did not take place in the assessment year 2008-09 under consideration, there was no question of any capital gain arising there from in such year. We, therefore, approve the view point of the ld. CIT(A) by holding that no transfer took place in the year and hence no capital gain was chargeable to tax. 12. The Ld. AR submitted that the assessee offered capital gain in its return of income for the A.Y. 2014-15 when 4H 1R land was transferred on 20.04.2013 to Rajendra Bhosale and Vikas Shinde vide registered sale deed. He stated that the AO has made protective addition in that assessment and the assessee has not denied the taxability on substantive basis in such later year, i.e. 2014-15. Our attenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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