TaxTMI 
TaxTMI 
2014 (3) TMI 292
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.... did not contemplate handing over possession of the immovable property sought to be developed nor was possession handed over in fact during the previous year relevant to A.Y. 2008-09 and consequently, he erred in sustaining assessment of short term capital gain in the case of the assessee. 4. Without prejudice to the grounds taken above, the learned CIT(A) ought to have appreciated that the sequence of events and the conduct of the assessee in relation to the impugned landed property lead to the conclusion that the assessee and Sri A. Srinivasa Rao, the owner of the adjoining plot of land have acquired the plots with a view to exploit the same for gaining profits and accordingly the CIT(A) ought to have directed that no income is assessable in the assessee's hands for the A.Y. 2008-09 because the assessee did not derive or receive any income from the said property in the said year. 5. For the above grounds and such other grounds that may be urged at the time of hearing, the appellant prays that the appeal be allowed. The appellant craves leave to add to, amend or modify the above grounds of appeal either before or at the time of hearing of the appeal, if it is considered ....
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....n entered into the Assessment Year 2008-09, the deemed transfer took place on that date. He also noted that as per the said agreement, the assessee had handed over the vacant and peaceful possession of the entire land to execute the project, and therefore as per sec. 2(47)(v) of the Act, such agreement constituted a transfer. The Assessing Officer also noted that as per several judicial pronouncements, transaction allowing possession constitutes a transfer within the meaning of the said section and that any transaction involving a transfer of title in future or exchange of a property to be put up in future, necessarily constitutes a transfer under the said section. Reliance in this regard was placed on the decision of the Hon'ble Jurisdictional Income-tax Appellate Tribunal in the case of Smt. Shantha Vidyasagar Annam Vs. ITO (ITA No. 885/Hyd/2003). The Assessing Officer also referred to the decision in the case of Dr. Maya Shenoy vs. ACIT (266/Hyd/2005). He noted that the Hon'ble High Court of Delhi in the case of Rohtak Mills (138 ITR 195) have observed that all that is necessary is that by the end of the previous year in question, the assessee must have received or becom....
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....Transfer of Property Act" it is one of the necessary preconditions that transferee should have or is willing to perform his part of the contract. This aspect has been duly taken note of by the Hon'ble Bombay High when their Lordships observed as follows: "That, in order to attract Section 53A, the following conditions need to be fulfilled. (a) There should be contract for consideration; (b) It should be in writing; (c) It should be signed by the transferor; (d) It should pertain to the transfer of immovable property; (e) The transferee should have taken possession of property; (f) Lastly, transferee should be ready and willing to perform the contract". 47. Elaborating upon the scope of expression "has performed or is willing to perform", the oft quoted commentary "Mulla- The Transfer of Property Act" (9th Edn. : Published by Butterworths India), at p. 448, observes that: "The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as a statutory right, is conditioned upon the transferee's....
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....he same day as refundable security deposit. However, out of this a sum of Rs.50 lakhs was said to be refunded by the landlord to the developer on 5.3.2009. As such, the assessee has received only a meager amount as refundable security deposit which cannot be construed as receipt of part of sale consideration. Admittedly, there is no progress in the development agreement in the assessment year under consideration. The Municipal sanction for development was obtained not in this assessment year and it was obtained only on 17.09.2006 from the Hyderabad Urban Development Authority. The sanction of the building plan is utmost important for the implementation of the agreement entered between the parties. Without sanction of the building plan, the very genesis of the agreement fails. To enable the execution of the agreement, firstly, plan is to be approved by the competent authority. In fact, the building plan was not got approved by the builder in the assessment year under consideration. Until permission is granted, a developer cannot undertake construction. As a result of this lapse by the transferee, the construction was not taken place in the assessment year under consideration. There ....
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....roject in the relevant period. He went on to proceed on the sole issue with regard to handing over the possession of the property to the developer in part performance of the Development Agreement-cum-General power of Attorney. In our opinion, the handing over of the possession of the property is only one of the condition u/s 53A of the Transfer of Property Act but it is not the sole and isolated condition. It is necessary to go into whether or not the transferee was 'willing to perform' its obligation under these consent terms. When transferee, by its conduct and by its deeds, demonstrates that it is unwilling to perform its obligations under the agreement in this assessment year, the date of agreement ceases to be relevant. In such a situation, it is only the actual performance of transferee's obligations which can give rise to the situation envisaged in Section 53A of the Transfer of Property Act. On these facts, it is not possible to hold that the transferee was willing to perform its obligations in the financial year in which the capital gains are sought to be taxed by the Revenue. We hold that this condition laid down under Section 53A of the Transfer of Property A....