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TMI Blog2023 (4) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... to the re-opening proceedings. From the above clause in the Joint Development Agreement, it is crystal clear that the assessee continued to be the owner of the property throughout the development of the property and there is no transfer of ownership to the developer. This aspect, in our opinion, was rightly noted by the Tribunal - reading of the entire agreement would show that there was no transfer or sale of asset under the Joint Development Agreement rather the agreement was to develop the land making it saleable and in view of the construction of the same, the developer would take a part of the stock-in-trade. The facts of the case in Balbir Singh Maini [ 2017 (10) TMI 323 - SUPREME COURT] was more or less identical to the case on hand and after reading the Joint Development Agreement, the Hon ble Supreme Court found that the owner continues to be the owner throughout the agreement at any state purported to transfer rights akin to ownership to the developer. This is exactly the nature of transaction in the case on hand. The registering authorities have not treated the agreement as a deed of conveyance but have calculated the stamp duty by treating the same under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate for the respondent/assessee. The issue involved in the instant case is whether the Principal Commissioner of Income Tax (PCIT) was justified in invoking his power under Section 263 of the Act and setting aside the assessment order passed under Section 143(3) read with Section 147 of the Act dated 27th December, 2019. The assessee had entered into a land development agreement dated 17th September, 2013 for development of land and by virtue of the said agreement, after the construction of the housing complex on the said land, 55% of the constructed area will be allotted to the assessee and 45% to the developer. In the opinion of the PCIT, the Assessing Officer omitted to examine the transaction of transfer of land held as Stock-intrade in the light of the provision of Section 43CA of the Act and this was the only reason for invoking the power under Section 263 of the Act. Firstly, we need to examine as to whether there was any enquiry conducted by the Assessing Officer before completing the assessment and whether the subject issue was taken note of by the Assessing Officer. It has to be borne in mind that the assessment was a re-assessment proceedings under Section 147 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long exclusively to the owner and the developer shall have no right title and interest therein. Provided however this shall not preclude the owner to enter into an arrangement with the developer for developing the said vested land on the terms and conditions as may be mutually agreed upon provided the owner is permitted by the Government of West Bengal to develop the said vested land. APPOINTMENT 1. The owner herein hereby appoint the Developer as the builder and/or developer for carrying out the development at the said premises as per the sanctioned plan or plan subject to the terms and conditions recorded therein. .. .. SPACE ALLOCATION 1. In consideration of the development of the Housing Complex at the said premises by the Developer at its own costs and expenses which includes Owner s Allocation and in consideration of the said premises provided by the owner as envisaged herein it is agreed by and between the Owner and the Developer that the entire constructed area of the said Housing Complex shall be divided and apportioned in the manner as stated hereunder :- (i) 55% of the constructed areas of the said Housing Complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee continued to be the owner of the property throughout the development of the property and there is no transfer of ownership to the developer. This aspect, in our opinion, was rightly noted by the Tribunal. Thus reading of the entire agreement would show that there was no transfer or sale of asset under the Joint Development Agreement rather the agreement was to develop the land making it saleable and in view of the construction of the same, the developer would take a part of the stock-in-trade. Furthermore, in terms of the termination clause if the developer fails to develop the housing complex and hand over the assessee s allotted area with all common amenities and facilities within the stipulated time of four years together with grace period of one year, the Joint Development Agreement would stand determined and cancelled and the developer shall cease to have any right, title, interest under the Joint Development Agreement and the developer shall be entitled to complete the construction of the incomplete portion of the housing complex provided however the assessee shall refund the entire outstanding amount of interest-free security deposit and the cost of construction of the sa ..... 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