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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 ..... - transfer of capital asset u/s 2(47) - According to the Revenue, the liability to pay capital gains tax stems out of the JDA - HELD THAT:- As combined reading of Clauses 6.2, 14.1 to 14.3 and 21 makes it clear that the delivery of possession to the developer is only for the performance of development/construction. Therefore, the view taken by the A.O and the ITAT that transfer was effected in the A.Y.2009-10 and making the assessees liable for payment of capital gains tax is perverse and untenable. Appeal allowed. - Hon'ble Mr Justice P.S.Dinesh Kumar And Hon'ble Mr Justice G Basavaraja For the Appellant : Shri. V. Chandra Shekar, Advocate For Shri. M. Lava, Advocate, For Shri. S. Annamalai, Advocate For the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Whether the reopening of the assessment and the consequent assessment proceedings are valid in law on the facts and circumstance of the case? 3. Whether the Tribunal was justified in law in not adjudicating the issue of cost of the capital asset on 01.04.1981 and consequential indexed cost of acquisition to be allowed on the facts and circumstances of the case? 3. Heard Shri V.Chandrashekar, learned Advocate for the appellants-assessees and K.V.Aravind, learned Senior Standing Counsel for the respondent-Revenue. 4. Brief facts of the case are, appellants, Mrs.Margrit Goverdhan and her three children are joint owners of property bearing No.44, situated at Kasturba Road, Bengaluru. It originally belonged to Mrs.Margrit Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der was in possession of the property in question and further that the issue is covered by the decision of this Court in CIT Vs. Dr.T.K.Dayalu (202 Taxman 531 (Kar)) 8. Adverting to Clause 14.3 of the JDA, he argued that power to alienate would come into effect only upon completion of owners constructed area and building being complete in all respects for human habitation and subject to issuance of clearance and occupation certificate. With these submissions, he prayed for allowing these appeals. 9. Shri K.V.Aravind, learned Senior Standing Counsel for the Revenue opposing the appeals submitted that possession of land has been transferred simultaneously with the execution of JDA. Nothing would stop the developer from alienating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Building in the Schedule A Property, having been permitted to develop by obtaining Plan Sanction, License etc, provided however that, nothing herein contained shall be construed as delivery of possession in part performance of any Agreement of Sale under Section 53-A of the Transfer of property Act, 1908 or Section 2(47)(V) of the Income Tax, 1961; Clause- 14: POWER TO SELL UNDIVIDED SHARE AND CONVEYANCE AND CONSTRUCTION AGREEMENT: 14.1. The OWNER hereby gives her express consent to the DEVELOPER and shall execute a power of attorney in favour of Developer empowering them to enter into agreements with the prospective purchasers to enter into agreement, subject to the terms, conditions and the spirit of this agreement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said power however shall come into effect only on completion of the construction of the Owners constructed area that is on Developers obtaining a Architect Certificate that building is completed in all respects fit for human habitation subject however to obtain/issue of clearance, connections and occupation certificate; (Emphasis Supplied) Clause 21: PAYMENT OF PROPERTY TAXES: The OWNER shall pay all the taxes, levies and cess in respect of the SCHEDULE PROPERTY upto the date of the completion of the developed area and upto the date when the proportionate undivided interest in land in the SCHEDULE PROPERTY is handed over to the DEVELOPER. In the event of failure of the OWNER to pay the same the DEVELOPER. In the event o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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