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TMI Blog2023 (1) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... , For Shri. S. Annamalai, Advocate For the Respondent : Shri. K.V. Aravind, Senior Standing Counsel JUDGMENT These four appeals by the assessees challenging the common order dated 13.12.2017 in ITA No.1355/Bang/2015 (Cross Objn.No.95/Bang/2017), ITA No.1353/BANG/2015 (Cross Objn. No.93/BANG/2017), ITA No. 1354/BANG/2015 (Cross Objn.No.94/BANG/2017 and ITA No. 1356/BANG/2015 (Cross Objn.No.96/BANG/2017), passed by the ITAT (Income Tax Appellate Tribunal), 'A' Bench, Bangalore, have been admitted to consider the following questions of law: 2. In ITAs No.328/2018, 332/2018 and 334/2018: 1. Whether the Tribunal was justified in law in holding that the transfer of the capital asset took place in the assessment year 2009-2010 as against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgrit Goverdhan's husband Dr.Vasanth Madhav Goverdhan. After his death, property devolved upon his wife and children. They entered into a JDA (Joint Development Agreement) dated November 27, 2008 with M/s Ashed Properties and Investments Pvt. Ltd., for development of the property. In the said agreement, land owners were entitled for 60% of the built up area with proportionate undivided interest and the developer for remaining 40%. 5. The assessees filed return of income in respect of A.Y. (Assessment Year) 2009-10. The A.O. (Assessing Officer) held that JDA was executed in the financial year relevant to A.Y and they were liable to pay Capital Gains tax. 6. The CIT(A) (Commissioner of Income Tax (Appeals)-I) reversed the finding of the A.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gth of GPA which was executed simultaneously with the JDA. Therefore, there is no error in the order passed by the ITAT. With these submissions, he prayed for dismissal of these appeals. 10. We have carefully considered rival submissions and perused the records. 11. In substance, Shri Chandrashekar's argument is, JDA contains an express Clause to the effect that nothing contained in the JDA would be construed as transfer of possession under Section 53A of the T.P. Act and the developer would get the power to alienate only after completion of the building in all respects. Hence, there was no transfer of interest in the A.Y.2009-10. 12. According to the Revenue, the liability to pay capital gains tax stems out of the JDA. We have carefully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent) in the land comprised in the schedule A property and the DEVELOPER will also be entitled to enter into construction contracts or such other contracts with prospective purchaser of her share in the undivided 40% share in land and receive sale price and cost of construction without having to render accounts to the OWNER; 14.2. On signing of this Development Agreement, the OWNER shall execute a General power of Attorney in favour of the DEVELOPER of their nominees, empowering the DEVELOPER or their nominee/s to approach the Bangalore Development Authority, City Municipal Council, BESCOM, Bangalore Water supply and Sewerage Board or such other agency or Competent Authorities and get the required permissions and sanctions, and for appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cover the same from the OWNER and all expenses for preparing and obtaining necessary licenses and sanctioned plan shall be that of the DEVELOPER; " 13. Under Clause 6.2 of the agreement, it is made clear that delivery of possession shall not be construed as part performance of the agreement of sale under Section 53A of the T.P Act. 14. Clause 14.3 makes it clear that power to alienate would come into effect after the building is complete in all respects for human habitation and subject to issuance of clearance and occupation certificate. 15. Clause No.21 also makes it clear that owners of the property are liable to pay all taxes, levies and cess in respect of schedule property till the date of development. 16. A combined reading of Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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