TaxTMI 
TaxTMI 
TaxTMI 
2016 (2) TMI 32
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....h are identical to the ground raised by contending that for A.Y. 2002-03, on this very transaction, the assessee herself declared long term capital gain, when the Assessing Officer founds flaws in her computation and the assessee herself claimed that the date of agreement was 25/11/2000, therefore, capital gains, if any, would be in A.Y. 2001-02 and the assessee had been changing stand as per her convenience. 2.1. On the other hand, ld. counsel for the assessee, Shri B.N. Rao, defended the conclusion arrived at in the impugned order by contending that long term capital gain was rightly granted to the assessee. 2.2. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the asse....
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....ments of the Ld. AR. Looking to the matrix of facts and the legal position, 1 am of the considered view that there is no 'transfer' involved within the meaning of section 2(47) r.w.s. 53(a) of the Transfer of *Property Act, 1882. The appellant was always in possession of the property and never transferred the same to the developer either physically or in the records of the Municipal Corporation of Greater Mumbai. Further, the theory of 'part performance' as per the TP Act is also not applicable in the case of the appellant. Furthermore, the development agreement dated 25-11- 2000 has been terminated and the matter is under litigation before Hon'ble Mumbai High Court, the A.O. has presumed that the development agreement i....
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....o be relevant". In the case of Asian distribution Ltd., it is held that Capital gains-Transfer-Property development agreement- Assessee owner of land entered into contract with developers- Under the: agreement, possession of property to be given to developers only upon payment of last installment and till then, assessee had a right to revoke the agreement in certain eventualities - Last installment due in May, 1988-Transaction is not transfer either under s. 2(47)(v) of the IT Act or s. 53A of the Transfer of Property Act, 1882, but is a mere licence to the developers to enter upon the land within the meaning of s. 52 of the Easements Act, 1882-No transfer of land having taken place as on 31st March, 1988, no capital gains tax was chargeabl....
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....upon completion of certain terms and conditions. 2. The appellant was leqaloumer of the premises mentioned in Third Schedule to the Development Agreement admeasuring 595.13. Sq Mtrs. which is part of land mentioned in First Schedule. 3. The appellant agreed to transfer the premises admeasuring 595.13 Sq Mtrs. as more specifically mentioned in Third Schedule to the said agreement and obtain the No Objection /Consent from the tenants of Jagir Apartments so that uninterrupted construction activity could take place. 4. The appellant expressed her inability to obtain the No Consent from the tenant of the property as more mentioned In Second Schedule to the Development Agreement. Thereafter by their letter dated 31.5.2004, the developer ....
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....possession of the premises was retained by the appellant and even today the physical possession is with the appellant through her sons to whom the property is gifted to them on or about 23.08.2005. No physical possession is enjoyed by the developer i.e., the Transferee. Copy of gift deed is enclosed for your reference. 10. The Developer filed a writ before the Hon'ble High Court after completion of more than three years and hence the application. suffers from the bar of limitation. 11. Since the appellant has received part payment of Rs. 290 lacs only as against the agreed value of Rs. 500 lacs and a constructed flat of 2400 Sq Ft. area with certain cost attached to it, the appellant will be certainly liable for making good the pa....
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....the aforementioned facts, reproduced at pages 5 to 7 of this order are analyzed, it can be concluded that the property was not transferred within the meaning of section 2(47)(v) of the Act r.w.s 53A of the transfer of Property Act. Even, the condition of the development agreement could not reach to finality due to non-payment of specified amounts (clause-9 of the agreement) by the transferee, due to which, agreement was unilaterally canceled, therefore, we find merit in the claim of the assessee. Our view is fortified by the decision in the case of General Glass Company Pvt. Ltd. vs DCIT (14 SOT 32) (Mum.) and Asian Distributors Ltd. (2001) 70 TTJ (Mum) 88, wherein, it was held that where the payment of balance consideration within stipulat....