2017 (1) TMI 631

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....red to as 'society') consisting of 207 members was formed, which was the owner of 27.3 acres of land in village Kansal, District Mohali. This society entered into a tripartite joint development agreement on 27..4.2007 with M/s Hash Builders Pvt. Ltd., Chandigarh and M/s Tata Housing Development Company Ltd., Mumbai by virtue of which the society would transfer its land for development in lieu of monetary consideration and also consideration in kind to the members of the society. The assessee was also a member of the said society owning 150 sq.yards plot of land. The total consideration was settled at Rs. 10,50,000/- plus allotment of one flat of 1150 sq.ft. to the assessee. In view of the above reasons, proceedings under section 147....

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....e was a grant and assignment of all rights in the entire property in favour of Tata Housing Development Company Limited (THDC) and so 'transfer' for the purposes of section 2(47)(v) of the Income Tax Act 1961read with Section 2(47)(ii), 2(47)(vij, and explanation below 2(47) and Section 269UA had taken place. 2. On the facts and in the circumstances of the case and m law, the Ld. CIT(A) has erred in holding that that no possession had been given by the transfer or to the transferee of the entire land in part performance of the JDA read with possession letter and irrevocable special power of attorney so as to fall within the domain of Section 53A of the Transfer of Property Act 1882, completely disregarding the facts that as....

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...., was as a licencee for the development of the property and not in the capacity of the transferee whereas all possible rights in the property including the right to sell etc. had been given to the builder. 6. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in bifurcating the agreement into different portions and allowing the assesses to pay capital gains tax only when cash or money is received whereas section 45 of the Income Tax Act 1961 is a deeming provision where capital gain is liable to be taxed in the year in which transfer takes place and there is no provision under the law to allow the assessee to pay capital gains tax beyond the year in which the capital gain has accrued. 7.....