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TMI Blog2024 (7) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaining to AY 2020-21. 2. The appeal and cross-objection are disposed by this common order for the sake of convenience and brevity. 3. Representatives of both the sides were heard at length. Case records were carefully perused and relevant documentary evidence duly considered in the light of Rule 18(6) of the ITAT Rules, 1963. 4. Briefly stated the facts of the case are that the assessee is engaged in construction work. Return of income was filed on 14/12/2020, declaring Nil income showing current year loss of Rs. 6,37,018/-. The return was selected for CASS and accordingly statutory notices were issued and served upon the assessee. 5. The AO was in possession of the information that the assessee has purchased two immovable properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforementioned factual matrix. We are of the considered view that the assessee has never purchased any immovable property during the year under consideration and the AO has proceeded on a factually incorrect premise. We have carefully considered the conveyance deed and the MOU and found that the assessee has only acquired development rights in the impugned properties. On perusal of the documentary evidence, we find that the assessee has only acquired development rights to develop the properties. The assessee will be entitled to 80% of the constructed area out of the total saleable constructed areas arising of the development potential of the said property. Such license cannot be said to be possession within the meaning of Section 53A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perform his part of the agreement. It is only if these two important conditions, among others, are satisfied that the provisions of section 53A can be said to be attracted on the facts of a given case. [Para 11] * On a reading of the agreement to sell dated 15-5-1998, what is clear is that both the parties are entitled to specific performance. [Para 12] * Clause 16 is crucial, and the expression used in clause 16 is that the party of the first part hereby gives 'permission' to the party of the second part to start construction on the land. [Para 13] * Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the agreement to sell, the owner's rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted. [Para 17]" 10. In light of the above, let us consider the relevant provision of Section 56(2)(x)(b) of the Act, which reads as under:- "Income from other sources. ......... ....(b) any immovable property,- (A) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; [(B) for a consideration, the stamp duty value of such property as exceeds such consideration, if the amount of such excess is more than the higher of the following amounts, namely:- (i) the amount of fifty thousand r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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