TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 1647
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...., conditional advance receipt, consideration etc. were mentioned. That the learned Additional Commissioner arbitrarily estimated the consideration to be received on future date on the basis of fair market price fixed by the builder in future. So also the Honourable CIT(Appeals) ignored the submissions made by the appellant and accepted to the value taken by the learned Additional Commissioner." 4. The brief facts of the case are that the assessee is the owner of the land measuring A0.405 decimals of land at Patia, Bhubaneswar. The assessee entered into a development agreement on 9.9.2008 with builder Sri Jitendra Hans. The assessee executed an irrevocable general power of attorney in favour of the said builder on that date. The assessee received a refundable advance of Rs. 20,00,000/- and handed over the possession of the land to the builder. Thereafter, the builder obtained approval from the Bhubaneswar Development Authority in 2009 for construction of 32 dwelling units on a plot of land owned by the assessee. As per the development agreement, the assessee transferred his right of development and ownership of the land to the developer and in return for 14 flats out of 32 flats to....
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.... Therefore, considering the overall facts of the case and in the absence of any evidence to the contrary, it is quite clear that the possession of the land was handed over to the builder immediately after signing of the agreement. Accordingly, as correctly held by the AO, the transaction entered into by the appellant shall be a deemed transfer within the meaning of section 2(47). The AO has also correctly relied upon the decision of the Hon'ble Bombay High Court in Charturbhuj Dwarakadas Kapadia vs. CIT (2003) 260ITR 491 (Bom) and of the Rajasthan High Court in CIT vs. Rajasthan Mirror Manufacturing Co. (2003) 260 ITR 503 (Raj). 5.3.1 The appellant in his long written submissions has contested the decision of the AO primarily on the following grounds; (i) that there was actually no transfer of land, (ii) that the sales consideration in the form of 14 flats was not received during the year of agreement, (iii) that the value of the sales consideration is not determinate and (iv) that the signing of the GPA is not a valid transfer of land. The appellant has also referred to some judicial decisions in support of the above argument. None of these arguments are valid or legally sus....
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....ort of the decision taken by the AO in the instant case. In Ravinder Singh Arora v. ACIT (2012) 24 Taxmann.com 346 (Hyd), the Hon'ble IT AT held that for purpose of charging capital gain to tax what is needed to be judged is point of time at which transfer took place, either by handing over of possession or by allowing entry into premises or making constructive presence of vendee and not year in which entire sale consideration is received. It was further held that where a land owner has entered into an agreement for development of property and certain rights were assigned to developer who in turn has made substantial payment and, consequently, has entered into property and, thereafter, if transferee (developer) has taken steps in relation to construction of flats, then it is to be considered as transfer under section 2(47)(v) attracting provisions of section 45; and fact that legal ownership continued with owner, which is to be transferred to developer at a future distant date does not affect applicability of section 2(47)(v). Similar view was expressed by the Hon'ble Karnataka High Court in CIT T.K.Dayalu (2011) 14 taxmann.com 120 (Karn.)/ (2012) 202 Taxman 531 (Karn.).I....
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....not acceptable because s. 53A of the Transfer of Property Act, 1882, which is engrafted in the definition of "transfer" in s. 2(47) of the Income-tax Act does not contemplate any payment of consideration. Payment of consideration on the date of agreement of sale is not required. It may be deferred for a future date. The element of factual possession and agreement are contemplated as transfer within the meaning of the aforesaid section. When the transfer is complete, automatically, consideration mentioned in the agreement for sale has to be taken into consideration for the purpose of assessment of income for the assessment year when the agreement was entered into and possession was given. Here, factually it was found that both the aforesaid aspects took place in the previous year relevant to the assessment year 2003-04. Hence, the Tribunal has rightly held that the appellant is liable to pay tax on the capital gain for the assessment year. " (emphasis supplied) 5.3.2 In view of the above discussion and considering the facts on record, I hold that as the development agreement was signed and the possession was handed over during the previous year relevant assessment year 2009-10, ca....
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....per was given possession under the joint development agreement and special power of Attorney only in the capacity of a licenses. The ingredients of section 53A of Transfer of Property Act were not fulfilled and, therefore, there was no transfer in terms of section 2(47) (v) for the purpose of levying capital gains tax. 8. On the other hand, ld D.R. supported the orders of lower authorities. He relied on the decision of Hyderabad Benches of the Tribunal in the case of Mrs Durdana Khatoon vs ACIT, 24 ITR (T) 55, wherein, it was held that the transfer of possession of property to the developer for construction of flats under Joint Development Agreement as per which assessee was entitled to 50% built up area, is 'transfer' as per section 2(47) and is taxable in the year in which agreement giving vacant and peaceful possession to developer, was entered into by the assessee. 9. We have heard the rival submissions, perused the orders of lower authorities and materials available on record. The undisputed facts giving rise to this appeal is that the assessee entered into a Joint Development Agreement on 9th September, 2008 with Shri Jitendra Hans,. The assessee received Rs. 20 lakhs from ....
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....ction entered by the assessee ? 10. Taking up the first issue, it may be noticed that section 2(14) of the Act defines "capital asset" whereas section 45 of the Act is the charging section in regard to capital gains. Section 48 of the Act provides for mode of computation of capital gains. Before delving into the controversy involved in the present case, it would be advantageous to refer to the relevant portion of section 2(47) of the Act defining "transfer", which reads thus : Section 2(47) of Income-tax Act, 1961-Definition of transfer in this Act, unless the context otherwise requires- "'transfer', in relation to a capital asset, includes,- . . . (ii) the extinguishment of any rights therein ; or . . . (v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882) ; or (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other asso ciation of persons or by way of any agreement or any arrangement or in any other manner whats....
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...."transfer" includes (i) any transaction which allows possession to be taken/retained in part performance of a contract of the nature referred to in section 53A of the 1882 Act ; and (ii) any transaction entered into in any manner which has the effect of transferring or enabling the enjoyment of any immovable property. Therefore, in these two eventualities, profits on account of capital gains would be taxable in the year in which such transactions are entered into, even if the transfer of the immovable property is not effective or complete under the general law. Under section 2(47)(v) of the Act, any transaction involving allowing of possession referred to in section 53A of the 1882 Act would come within the ambit of "transfer". Even arrangements confirming privileges of ownership without transfer of title could fall under section 2(47)(v) of the Act. Section 2(47)(v) read with section 45 of the Act indicates that capital gains is taxable in the year in which such transactions are entered into even if the transfer of immovable property is not effective or complete under the general law. The purpose of introducing clause (v) in conjunction with clause (vi) in section 2(47) of the Act....
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....only known as power of attorney arrangements. The practice in such cases is adopted normally where transfer of ownership is legally not permitted. A person holding the power of attorney is authorised the powers of owner, including that of making construction. The legal ownership in such cases continues to be with the transferor. 11.3 These amendments shall come into force with effect from April 1, 1988, and will, accordingly, apply to the assessment year 1988-89 and subsequent years (section 3(g) of the Finance Act, 1987)." 13. The legislative intent behind incorporating clause (v) to section 2(47) of the Act from the assessment year 1988-89 as discernible from the Central Board of Direct Taxes circular is to embrace within its ambit those transactions of sale of property where the assessee enters into agreements for developing properties with builders and the seller confers the rights and privileges of ownership to the buyer without executing/registering a formal conveyance deed in order to avoid capital gains tax. In order to thwart such tendencies, transactions where the possession is given or allowed to be retained in part performance of contract of the nature referred to i....
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....used to be a transfer for all the practical purposes, but the tax could be avoided only on the sole ground that the transaction was not completed by way of a sale deed. Now, the law having undergone the change, it would be clear that where there would be a transfer of possession in the nature as con templated under section 53A of the Transfer of Property Act, the transaction would be covered as a transfer. By necessary logic then, that transaction would be coverable in that particular assessment year as has been held by the Delhi High Court. The only question was as to whether a transaction could be considered for the purpose of calculation of capital gains in parts. The position in law has been indicated by the Delhi High Court that it can be so treated in parts. We respectfully agree with the Delhi High Court judgment. However, the only conditions would be that (1) such a delivery of possession should be in the nature of a doctrine of part performance under section 53A for which there should be an agreement between the parties, (2) such agreement should be in writing, (3) a completed contract has to be spelt out from that agreement, and the most important (4) the transfer of po....
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....ion of the concept of deemed transfer under section 2(47)(v). In this matter, the agreement in question is a development agreement. Such development agreements do not constitute transfer in general law. They are spread over a perio of time. They contemplate various stages. The Bombay High Court in various judgments has taken the view in several matters that the object of entering into a development agreement is to enable a professional builder/contractor to make profits by completing the building and selling the flats at a profit. That the aim of these professional contractors was only to make profits by completing the building and, therefore, no interest in the land stands created in their favour under such agreements. That such agreements are only a mode of remunerating the builder for his services of constructing the building (see Gurudev Developers v. Kurla Konkan Niwas Co-operative Housing Society [2000] 3 Mah LJ 131). It is precisely for this reason that the Legislature has introduced section 2(47)(v) read with section 45 which indicates that capital gains is taxable in the year in which such transactions are entered into even if the transfer of immovable property is not effe....
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.... of ownership where the prospective buyer becomes owner of the property by becoming a member of a company, co-operative society, etc. In the present case, JDA was executed between the society and the developers and there was no transaction involving the developer becoming a member of a cooperative society/ company, etc., in terms of section 2(47)(vi) of the Act. The surrender of right to obtain a plot by the members was for facilitating the society to enter into the JDA with the developers. There was no change in the membership of the society as contemplated under section 2(47)(vi) of the Act. Equally, clause (ii) of section 2(47) of the Act has no applicability inasmuch as there was no extinguishment of any rights of the assessee in the capital asset at the time of execution of the JDA in the absence of any registered conveyance deed in favour of the transferee in view of the judgments in Alapati Venkataramiah v. CIT [1965] 57 ITR 185 (SC) and Addl. CIT v. Mercury General Corporation (P.) Ltd. [1982] 133 ITR 525 (Delhi). 18. For determining the ingredients for applicability of section 53A of the 1882 Act, it would be essential to reproduce the relevant provision which reads as u....
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....e necessary conditions for applicability of section 53A of 1882 Act : "(1) there must be a contract to transfer for consideration any immovable property ; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf ; (3) the writing must be in such words from which the terms neces sary to construe the transfer can be ascertained ; (4) the transferee must in part performance of the contract take possession of the property, or of any part thereof ; (5) the transferee must have done some act in furtherance of the contract ; and (6) the transferee must have performed or be willing to perform his part of the contract." 20. Following the aforesaid pronouncement, the apex court in Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004] 8 SCC 614 observed as under : "Protection provided under section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is lega....
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....vable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument." The words "or as evidence of part performance of a contract for the pur poses of section 53A of the Transfer of Property Act, 1882" have been omitted from the proviso to section 49. 22. Section 17(1A) of the 1908 Act introduced by the 2001 Act provides that no benefit would be admissible on the basis of unregistered contract for the purposes of section 53A of the 1882 Act. Equally, deletion of the words "or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act" from the proviso to section 49 of the 1908 Act clarifies the effect of non-registration of a contract executed in terms of section 53A of the 1882 Act. A Division Bench of this court interpreting the aforesaid provisions in Ram Kishan v. Bijeder Mann alias Vijender Mann [2013] 1 PLR 195 had succinctly laid down as under : "....
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....3A of the Transfer of Property Act. Section 49 of the Registration Act 1908, reads as follows : "49. Effect of non-registration of documents required to be registered.-No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered : Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882 (4 of 1882) or as evidence of any collateral trans action not required to be effected by registered instrument.' 11. A conjoint appraisal of sections 53A of the Transfer of Property Act, 1882, sections 17(1A) and 49 of the Indian Registration Act,....
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....Property Act before amendment prescribed that where in pursuance to part performance of the con tract, the transferee has taken possession of the property and has done some act in furtherance of the contract, and the transferor has performed or is will to perform his part of the contact then despite the fact that the contract was required to be registered and has not been registered, the transferrer shall be debarred from enforcing against the transferee any right other than a right expressly provided by the contract. Meaning thereby, section 53A of the Transfer of Property Act recognised part performance of the contract even though the con tract used to be unregistered and the transferee's rights to remain in possession was protected. By the amendment Act No. 48 of 2001 (with effect from September 24, 2001), the words "the contract, though required to be registered, has not been registered, or" have been omitted from the provision. The effect of the amendment is that now if any person takes possession in pursuance to a contract which is required to be registered but has not been registered, the transferee has no right to remain in possession of the property. To give effect to ....
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....nts/ plaintiffs are found to have agreed to sell the property, the petitioner/ defendant would not get any right to occupy that property as an agreement purchaser. This court in Jiwan Das v. Narain Das, AIR 1981 Delhi 291 has held that in fact no right inure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed." 23. Having elaborated the scope and legislative intent of section 2(47)(ii), (v) and (vi) of the Act and also the mandatory ingredients for applicability of section 53A of the 1882 Act, it would be essential to notice that the provisions of section 53A of the 1882 Act have been introduced in section 2(47)(v) of the Act by incorporation. The concept of inclusion of a provision of another statute by incorporation has been dealt with by the apex court in detail in Surana Steels P. Ltd. v. Deputy CIT [1999] 237 ITR 777 (SC). The issue before the apex court in Surana Steels P. Ltd.'s case (supra) was relating to computation of book profit under section 115J of the Income-tax Act, 1961. Section 205 of the Companies Act, 1956, provided that past losses or un....
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.... Act of Parliament is introduced into another Act. I think it must be read in the sense it bore in the original Act from which it was taken, and that consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the sections meant, though those other sections are not incorporated in the new Act".' " 24. Similarly, following the apex court judgment in Surana Steels P. Ltd.'s case (supra), the Gauhati High Court in Assam Bengal Carriers Ltd. v. CIT [1999] 239 ITR 862 (Gauhati), observed that when a legal fiction is created for an obvious purpose, full effect of it is to be given. The relevant observations read thus (page 866) : 24. "When a legal fiction is created for an obvious purpose full effect of it is to be given-there is no half way house. In this regard it would be advantageous to rehearse the following passage from Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council [1951] 2 All ER 587 (HL) 'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real, the consequences and incidents which, if the putative state of affairs h....
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....On the other hand, learned counsel for the Revenue, drawing support from the judgment delivered by the Authority for Advance Rulings (AAR) in Jasbir Singh Sarkaria, In re [2007] 294 ITR 196 (AAR) submitted that there can be concurrent possession of the transferor as well as of the transferee and it would be enough if the transferee has, by virtue of the transaction, a right to enter upon and exercise acts of possession effectively pursuant to the covenants in the contract. Reliance was placed upon the following observations for meaning of possession and how should it be understood in the context of sub-clause (v) of section 2(47) of the Act (page 210) : "The next question is, in what sense we have to understand the term 'possession' in the context of clause (v) of section 2(47). Should it only mean the right to exclusive possession-which the transferee can maintain in his own right to the exclusion of everyone including the transferor from whom he derived the possession ? Such a criterion will be satisfied only after the entire sale consideration is paid and the transferor has forfeited his right to exercise acts of possession over the land or to resume possession. In our....
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....e distinguished as 'immediate or direct'." Salmond makes reference to three types of mediate possession. In all cases of "mediate possession", two persons are in possession of the same thing at the same time. An allied concept of concurrent possession has also been explained in paragraph 55 of Salmond's Jurisprudence in the following words : 'It was a maxim of the civil law that two persons could not be in possession of the same thing at the same time. As a general proposition this is true : for exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realized at the same time. Claims, however, which are not adverse, and which are not, therefore, mutually destructive, admit of concur rent realisation. Hence, there are several possible cases of duplicate possession. 1. Mediate and immediate possession co-exist in respect of the same thing as already explained. 2. Two or more persons may possess the same thing in common, just as they may owe it in common . . .' On a fair and reasonable interpretation and on adopting the principle of purposive construction, it must be held that possession contemplated by ....
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....ayment of capital gains tax on the ostensible ground that the entire consideration has not been received and some balance is left. The mischief sought to be remedied, will then perpetuate. We are, there fore, of the view that possession given to the developers need not ripen itself into exclusive possession on payment of all the instalments in entirety for the purpose of determining the date of transfer. While on the point of possession, we would like to clarify one more aspect. What is spoken to in sub-clause (v) of section 2(47) is the 'transaction' which involves allowing the possession to be taken. By means of such transaction, a transferee like a developer is allowed to undertake development work on the land by assuming general control over the property in part performance of the contract. The date of that transaction determines the date of transfer. The actual date of taking physical possession or the instances of possessory acts exercised is not very relevant. The ascertainment of such date, if called for, leads to complicated inquiries, which may frustrate the objective of the legislative provision. It is enough if the transferee has, by virtue of that transaction....
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....st be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract. When series of acts are done in part performance, one such may be payment of consideration. Any one act by itself may or may not be of such a conclusive nature as to conclude the point one way or the other but when taken with many others payment of part of the consideration or the whole of the consideration may as well be shown to be in furtherance of contract. The correct approach would be, what Lord Reid said in Steadman's case [1974] 2 All ER 977 (HL) that one must not first took at the oral contract and then see whether the alleged acts of part performance are consistent with it. One must first look at the alleged acts of part performance and see whether they prove that there must have been a contract and it is only if they do so prove that one can bring in the oral contract. This view may not be wholly applicable to the situation in India because an oral contract is not envisaged by section 53A. Even for invoking the equitable doctrine of part performance there has to be a contract in writing from whic....
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....e High Court of Madhya Pradesh had an occasion to deal with the facts very near to the facts before us in Bhagwandas Parsadilal v. Surajmal, AIR 1961 MP 237. A tenant in possession entered into an agreement to purchase the house forming subject matter of tenancy. However, he failed to show his nature of possession having altered from that of a tenant into that of a transferee. In a suit of ejectment based on land lord-tenant relationship, the tenant sought to protect his possession by raising the plea of part performance as against subsequent pur chaser of the property. Referring to section 91 of the Indian Trusts Act, the High Court held that a subsequent purchaser of the property with notice of an existing contract affecting that property must hold the property for the benefit of the person in whose favour the prior agreement to sell has been executed to the extent it is necessary to give effect to that contract. But that does not mean that till a final decision has been reached the contract creates a right in the person in possession, i.e., the tenant, to refuse to surrender possession of the premises even if such possession was obtained by him not in part performance of the con....
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.... concept, has two components, viz., corpus possessions, physical possession of the property and animus possidendi, i.e., the intention to hold it as of right. Their difference of approach was only as to the emphasis on these ingredients, to constitute a position in law. In his treatise on the Common Law, O. W. Holmes [Holmes The Common Law Ch 6,], observed as under : 'I gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent. These relations and this intent are the facts of which we are in search.' 33. Opinions drastically varied, as to whether possession is a question of fact, or of law. While some jurists treated it as a pure question of fact, others held it to be matter of law. Dias, in his treatise on 'Jurisprudence', struck a balance and observed, as under (Dias Juris prudence, Fifth Edition Page 290) : 'Possession has three aspects : firstly, the relation between a per son and a thing is a fact. Secondly, the advantages attached by law to that relation is a matter of law. Thirdly, these advantages are also attributed to a person when certain other facts exist. W....
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....y the date of transfer. 36. The phenomena of co-ownership of an undivided property, on the one hand, and delivering of physical or symbolical possession thereof do not co-exist. In fact, they are mutually exclusive. In Saleem, S/o. Yaseen v. I Additional Civil Judge, Senior Division, Saharanpur, AIR 1966 All 342, it was held that the right of a transferee under section 53A of the Act does not have the effect of superseding, or frustrating the provisions of section 44 of the Act. To the same effect is the judgment of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867. Though they related to the second limb of section 44, by and large, the principle remains the same. 37. In Smt. Lalita James v. Ajit Kumar, AIR 1991 MP 15 and Ashim Ranjandas v. Smt. Bimala Ghosh, AIR 1992 Cal 44, it was held that a transferee from a co-owner of a portion of undivided property is not entitled to right of exclusive possession, and that he can, at the best, enforce a partition of joint estate. The Himachal Pradesh High Court in its judgment in Paldev Singh v. Smt. Darshani Devi, AIR 1993 HP 141, observed that a co-owner cannot be said to be in actual physical or exclusiv....
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....re a good law. Possession of the suit land delivered to defendants 1 and 2 at the time of the execution of the agreements dated March 1/11, 1985, was only by way of temporary measure for undertaking the construction work by them and the exclusive possession thereof in legal sense remained with the executants of the said agreements. Thus, defendants 1 and 2 prima facie are not entitled to protect their possession over the suit land under said section 53A of the Transfer of Property Act." 30. The concept of possession to be defined is an enormous task to be precisely elaborated. "Possession" is a word of open texture. It is an abstract notion. It implies a right to enjoy which is attached to the right to property. It is not purely a legal concept but is a matter of fact. The issue of ownership depends on rule of law whereas possession is a question dependent upon fact without reference to law. To put it differently, ownership is strictly a legal concept and possession is both a legal and a non-legal or pre-legal concept. The test for determining whether any person is in possession of anything is to see whether it is under his general control. He should be actually holding, using an....
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.... for the parties. Firstly, noting the arguments of the assessee, reliance was placed on section 52 of the Indian Easements Act, 1882, which defines "licence" in the following terms : "52. 'Licence' defined.-Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence." It was contended that possession was handed over to the transferee as a licensee to carry out development of the property. No possession was ever given by the transferor to the transferee in part performance of the JDA dated February 25, 2007. JDA had not conferred any right to own the pro perty on the transferee but only to develop it. Even registered irrevocable special power of attorney nowhere specified granting possession in part performance of JDA dated February 25, 2007, as required under section 53A of the 1882 Act. 32. Further, in order to demonstrate that no absolute possession as required under section 53A of the 1882 Act ....
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.... of the competent authority and the owner shall have no objection to the same in whatsoever manner. In consideration of the owner granting and signing, its development rights in the property, irrevocably and in perpetuity to THDC to develop the property and for transfer of the property upon the surrender of allotment rights of 500 sq. yards and/or 1,000 sq. yards (as the case may be) by its members to the owner, vide resolution dated January 4, 2007, and February 25, 2007 (copy attached as per annexures I and II), HASH is committed to pay to the owner and/ or the respective members of the owner (as the case may be) a total amount of Rs. 106,42,50,000 (rupees one hundred six crores forty-two lakhs fifty thousand only) calculated at Rs. 82,50,000 (Rupees eighty two lakhs fifty thousand only) payable to 65 members having plot of 500 square yards each, Rs. 1,65,00,000 (rupees one crore sixty-five lakhs only) payable to 30 members having plot of 1000 square yards each and Rs. 3,30,00,000 (rupees three crores thirty lakhs only) pay able to the owner for the 4 plots of 500 square yards each which shall tantamount to the full and final payment to the owner and/or the respective members of ....
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....ster the same if necessary, documents, court proceedings, affidavits and such other papers containing true facts and correct particulars as may from time to time be required in this behalf. 9.2 The owner shall execute in favour of THDC, the sale deeds in accordance with the provisions of clause 4.1(ii) to clause 4.1(v) of this agreement and execute all other necessary documents and papers to complete the aforesaid transaction. 9.3 That all the original title deeds pertaining to property as mentioned in annexure IV have been handed over to THDC by the owner at the time of signing of this agreement and in furtherance of the common interest of the parties for the development of the project and except the sale transaction made by the owner in favour of THDC as set out in clause 4.1 above. THDC hereby undertake and assure the owner that they shall use the title deeds only for the purpose of furtherance of the project in the manner that it does not adversely affect the owner/allottee in any manner whatsoever. 14. Termination (i) Save and except the provisions of clause 26, THDC shall at all times have the right to terminate this agreement in the event there is any material breach....
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....tion of the same by the appropriate statutory authority, then THDC may at its sole discretion terminate this agreement. In the event the agreement is terminated by THDC, all the lands registered in the name of THDC as per the terms of this agreement up to the date of the termination shall remain with THDC and the balance lands to be transferred to THDC as per the terms of this agreement shall not be transferred by the owner in favour of THDC. Upon the termination, the owner shall refund to THDC the adjustable advance/ earnest money mentioned in clause 4.1(i) above within one month of such termination. In he event of failure of the owner to refund the said amount, the owner hereby agrees to execute a registered sale deed for land of equivalent value in favour of THDC. (iv) The owner shall have the right to terminate the agreement only in the event of default by the developers for making the payment in accordance with the terms of this agreement and the allotment of flats within the time period as mentioned in this agreement after giving thirty (30) days written notice for rectification of such breach or any further time as may be desired by the owner. In the event the agreement is....
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....or remedy the cause thereof and minimise the economic damage arising thereof. (v) Either party may terminate this agreement after giving the other party a prior notice of fifteen (15) days in writing if the event of force majeure continues for a period of ninety (90) days. In the event of termination of this agreement all obligations of the parties until such date shall be fulfilled. (II) Clauses of special power of attorney dated February 26, 2007 (A). The owner is absolutely seized and possessed of 169 kanals 7 marlas equivalent to 21.2 acres (approx.) of free hold land situated in village Kansal, Tehsil Kharar, District Mohali, registered in this name vide various sale deeds duly registered with Sub-Registrar Majri, Dis trict Rupnagar (now within District Mohali) and more particularly described in the schedule A hereunder written and delineated in green colour boundary line in the plan attached hereto, annexed as annexure I (hereinafter referred to as the "property"). (B). The owner is the absolute and undisputed owner of the pro perty and has assigned and transferred all its rights to plan, develop, construct, sell, lease, mortgage the property as more particularly set ....
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....ments, applications and other papers, petitions and all proceeds whatsoever and matters and things whatsoever as shall or may be required from time to time to enable the development of the property and for undertaking, executing and completing the project and without prejudice to the aforegoing to jointly and sever ally do and perform the following acts, deeds, matters and things, namely : . . . (m) To apply to the competent authority and/or any other body (ies) and/or any other relevant statutory and/or Government authority (ies) for the time being concerned therewith for the permanent or temporary connection of power, light, water, sewerage, gas and/or other facilities to the property for the construction of the premises or any party thereof and in connection therewith to make all deposits as shall or may be necessary and to do all other acts, deeds, matters and things which the owner can do. (n) to enter upon the property either alone or with others for the purpose of development, coordination, execution, implementation of the project and commercialisation of the property/premises . . . (t) To amalgamate the property with any other contiguous, adjacent and adjoining lands ....
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.... promissory note-exhibit B all the three defendants have 'jointly and severally promised to pay the Central Bank of India Ltd. or order a sum of Rs. 4 lakhs only together with interest on such sum from this date', but the transaction between the parties is contained not merely in the promissory note-exhibit B-but also in the letter of continuity dated November 26, 1946- exhibit A which was sent by the defendants to the plaintiff-bank along with promissory note- exhibit B on the same date. There is another document executed by defendant No. 1 on November 26, 1946-exhibit G-Hypothecation agreement. The principle is well-established that if the transaction is contained in more than one document between the same parties they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document. In Manks v. Whiteley [1912] 1 CH 735, at page 754, (1) Moulton L. J. stated : 'Where several deeds form part of one transaction and are con temporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed. Each is exe cuted on the faith of all the others being executed also....
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....t may not be compulsorily registrable. But in the context of the Contract Act, it cannot be said that a person who is the benefi ciary of an agreement of sale has no right or interest in the subject matter of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be sold under the pro visions of the Specific Relief Act. In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter IV of the Contract Act deals with the perform ance of contracts which includes the performance of contracts relating to immovable property also. In fact, section 4 of the Transfer of Pro perty Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, the respondent in whose favour the appellant had exe cuted an agreement for the sale of an immovable property had an interest in the subject-matter of the contract, namely, the shop, turn the purposes of section 202 of the Contract Act if not for the purposes of the Transfer of Property and the Re....
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....t only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy. These three being compared I cannot doubt the conclusion'." 36. Reliance was placed on the conclusion of the apex court in Dr. Baliram Waman Hiray v. Mr. Justice B. Lentin [1989] 176 ITR 1 (SC), wherein following Bengal Immunity's case (supra), it was observed as under (page 23) : "No rule is more firmly established than the principles enunciated in Heydon's case. which have been continually cited with approval not only by the English Courts but also by the Privy Council as well as this court. The principles laid down in Heydon's case have been enunciated in Craies on Statute Law, 6th edition. at page 96 as follows : 'That for the sure and true interpretation of all statutes in general (be they penal or beneficial restrictive or enlarging of the common law), four things are to be discerned and considered : (1) what was the common law before the making of the Act, (2) What was the mis chief and defect for which the common law did not provide, (3) What remedy Parliament ha....
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.... upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to free hold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales . . . 26. We have merely drawn attention to and reiterated the well-set tled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting reg istered Deeds of Conveyance to complete their title. The said 'SA/ GPA/WILL transactions' may also be used to obtain specific perform ance or to defend possession under section 53A of Transfer of Prop erty Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by development authorities. We make it clear that if the documents relating to 'SA/ GPA/WILL transactio....
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....f JDA. It was resolved that the members of the society owning plots measuring 500 square yards would receive Rs. 82,50,000 each to be paid by HASH in four instalments and one flat with super area of 2,250 square feet to be constructed by THDC. The members owning plots of 1,000 square yards were to receive double the amount of settlement of plot holders of 500 square yards. For this purpose, irrevocable power of attorney was also agreed to be executed for this purpose. The resolution of the executive committee was ratified in the general body meeting held on February 25, 2007, pursuant to which tripartite JDA was executed on the same day. The possession of the owners on land measuring 21.2 acres was recognised, vide this JDA. HASH was responsible to make the payment failing which it was the responsibility of THDC. A copy of the JDA dated February 25, 2007, has been annexed as annexure A.2 with I. T. A. No. 200 of 2013. It may be advantageous to broadly refer to various clauses of the JDA dated February 25, 2007, and irrevocable special power of attorney dated February 26, 2007. A plain reading of the JDA dated February 25, 2007, spells out that clause 1 thereof has defined various e....
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....developer was entitled to enter upon the property for the purposes of development, etc. For invoking section 53A of the 1882 Act, it was mandatory to establish that possession in part performance of an agreement was delivered by the transferor to the transferee. Section 53A of the 1882 Act does not define any contract but relates to a particular nature of contract where the transferee is entitled to protect his possession when he has been delivered the same in part performance of a contract. In other words, the society or its members had never parted possession of the property though under the JDA and the special power of attorney, the developer was given power to raise finance by mortgaging the property and for the purpose of registration of the charge thereon. If at all, it is to be held that possession was delivered to the developers then it would be as a licensee only. The developer was authorised to amalgamate the project and in the event of termination of the JDA, the provisions of clause 6 thereof were agreed to be surviving. The environmental clearance was the responsibility of the developer THDC/HASH out of its own sources. The Tribunal had sought to raise the presumption ....
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....the project was stayed, vide order dated January 20, 2011. On March 26, 2012, this court had directed the developers to obtain additional permission under the Punjab New Capital (Periphery) Control Act, 1952. Subsequently, in CWP No. 18253 of 2009 titled Court on its own motion v. State of Punjab, Chandigarh, this court, vide order dated May 14, 2012, directed stay of construction in the entire catchment area of Sukhna lake as per the survey of India record including the project under consideration. Demolition of the existing structure after March 11, 2011, was also ordered. However, the apex court, vide order dated May 22, 2012, granted status quo and directed that no construction should be undertaken in the area and stayed demolition of the existing structure. The developers who were not party in CWP No. 18253 of 2009 were also impleaded therein. The society in the meantime issued letter dated January 28, 2011, to HASH for payment of the third instalment as per clause 4.1(iv) of the JDA. Vide letter dated February 4, 2011, HASH stated that the third instalment would become due only after obtaining permission to commence construction which was still pending with the Ministry of En....
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....ults either under accrual system or on the basis of receipt, no Income-tax is exigible. The relevant observations read thus (page 148) : "Income-tax is a levy on income. No doubt, the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt ; but the sub stance of the matter is the income, if income does not result at all, there cannot be a tax, even tough in bookkeeping, an entry is made about a 'hypothetical income' which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that, effect might, in certain circumstances, have been made in the books of account." This pronouncement was applied by the Supreme Court in Godhra Elec tricity Co. Ltd. v. CIT [1997] 225 ITR 746 (SC) and followed by the Cal cutta High Court in CIT v. Balarampur Commercial Enterprises Ltd. [2003] 262 ITR 439 (Cal). ....