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TMI Blog2024 (11) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... ed cancellation agreement without calling for the comments of the ld. AO on this fresh evidence is concerned, it is to be noted that the powers of ld. CIT(A) are co-terminus with that of the ld. AO. The cancellation agreement in question produced by the assessee was a registered cancellation agreement and the ld. CIT(A) rightly admitted and considered the same in deciding the case before him. No useful purpose will be served in restoring the matter to the ld. AO only because of that the comments of the ld. AO were not sought on the said document whereas, the ld. CIT(A) being higher authority and being in possession of all the powers that are available to the ld. AO, has rightly considered the evidence before him which was in the shape of registered deed and there was no question of any manipulation or creation of this document afterwards. Decided against revenue. - SRI SANJAY GARG, JUDICIAL MEMBER AND SRI SANJAY AWASTHI, ACCOUNTANT MEMBER For the Department Represented: P.P. Barman, Addl. CIT, Sr. DR. For the Assessee Represented by: Miraj D. Shah, AR. ORDER Per Sanjay Awasthi, Accountant Member: In this case, the assessee had filed its original return of income on 30.09.2014 at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue later. d) It was averred before the ld. CIT(A) that the AO failed to consider that revenue sharing can happen only when a building was constructed, completion certificate was obtained and possession of flats were given to the buyers. Therefore, it was again emphasized that there can be no accrual of revenue until and unless the JDA could be fulfilled in letter. e) The appellant relied on the case of Pr. CIT vs. Infinity Infotech Parks Ltd. reported in [2018] 407 ITR 137 (Calcutta) and Pr. CIT vs. Shelter Project Ltd. reported in [2022] 445 ITR 291 (Calcutta). Through these case laws it was argued that no transfer within the meaning of Section 2(47)(v) of the Act would take place until the builder constructed the property and handed over a portion of the same to the assessee as per terms of agreement. 1.2. The ld. CIT(A) thereafter proceeded to record that the ld. AO's actions were unjustified on the dual grounds of the property being stock-in-trade hence, Section 53A read with Section 2(47) of the Act would not apply and also concurred with the arguments of the appellant that a JDA would result in recognizable revenue only after it was allowed to run its full course. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld as stock-in-trade. This fact has also been pointed out from the narration in the accounts which have been labeled as work-in-progress at 762 Anandapur, Kolkata, KMC Ward 108, PC Tiljala. 3. The orders of authorities below, the paperbook filed by the appellant and the arguments of ld. DR/AR have been carefully considered. The moot points here are the following: a) Whether there could be any revenue for the year under consideration from a JDA the terms of which admittedly were not fulfilled in AY 2014-15. b) Whether the provisions of Section 53A read with Section 2(47) of the Act would apply to the asset under consideration even when the appellant has considered it to be a stock-in-trade. c) Whether the outcome of the impugned issue would have been different had the cancellation agreement dated 08.07.2023 was either not brought into the picture or in case considered then whether the comments of ld. AO could have made any difference. 3.1. In this case, it would be worthwhile to recall that Rule 46A of the Income Tax Rules, 1962 is a mechanism to allow an appellant to place documents or facts before the ld. CIT(A), which could not be placed before the ld. AO for certain specified re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be certified by the structural engineer and architects. Thereafter the Tribunal took note of the decision of the Supreme Court in the case of CIT v. Balbir Singh Maini [2017] 86 taxmann.com 94/251 Taxman 202/398 ITR 531. The said decision is more or less identical to the facts of the case on hand wherein one of the questions which fell for consideration was whether the transaction under the Joint Development Agreement should be envisaged as transfer exigible to tax by reference under section 2(47)(v) read with section 53A of the Transfer of Property Act, 1882 [Para 7]. ■ After reading the Joint Development Agreement, the 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. That apart, the Tribunal also taken note of how the registering authorities have treated the Joint Development Agreement. The registering authorities have not treated the agreement as a deed of conveyance but have calculated the stamp duty by treating the same under articles 4, 5(f) of Schedule 1A of the Indian Stamp Act. The Explan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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