TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 134
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....n the meaning of Section 2(47)(v) of the Act and no capital gains arose? (b) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in law in holding that there was no transfer of land within the meaning of Section 2(47)(vi) of the Act and no capital gains arose? (c) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in law in holding that the full value of the property transferred was not Rs. 55 Crores for the purposes of computing capital gains? (d) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in law in holding that the assessee had converted capital asset into stock-in-trade? (e) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in law in holding that the assessee had converted capital asset into stock-in-trade on the date when he made the application for conversion of agricultural land into nonagricultural land, particularly when that was not even the claim of the assessee? (f) Without prejudice to the claim of the Revenue that there was no conversion of capital asset into stock-in-trade, whet....
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....opment Agreement not being registered under the Indian Registration Act, there was no transfer in terms of Section 2(47)(v) of the Act. Similarly, it was contended that Section 2(47)(vi) of the Act, would also have no application in the present facts as there was no transfer of the land to M/s. Godrej Properties Ltd., and the possession of the land continued to be with the Respondent-Assessees. 6. However, the Assessing Officer placed reliance upon the decision of this Court in Chaturbhaj Dwarkadas Kapadia v/s. CIT 260 ITR 491 to conclude that the transfer under Section 2(47)(v) of the Act had taken place when the Development Agreement dated 20th April, 2007 was executed. It was also held that the consideration received for the land on which homes are to be constructed, was Rs. 55 Crores and the aforesaid land had been converted into stock-in-trade on 1st April, 2007. Thus, capital gains had arisin in the subject Assessment Year when the Development Agreement dated 20th April, 2007 itself, was executed. 7. Being aggrieved, Respondent filed an appeal to the Commissioner of Income Tax (Appeals) [CIT(A)]. By order dated 27th December, 2012, the Respondent's appeal was dismissed....
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....n the context of the above fact, we shall now deal with each of the proposed identical questions of law in both the Appeals urged on behalf of the Revenue: 11. Re. Questions (a):(i) Mr. Kaka, learned Senior Counsel appearing for the RespondentAssessee submits that this issue now stands concluded in favour of the Respondent-Assessee and against the Appellant-Revenue by the decision of the Apex Court in CIT v/s. Balbir Singh Maini 398 ITR 531. (ii) In the aforesaid case, the Supreme Court held that in terms of Section 2(47)(v) of the Act, transfer of any immovable property in part performance of a contract of the nature referred in Section 53A of the Transfer of Property Act will be completed only when the Agreement under Section 53A of the Transfer of Property Act is registered under the Indian Registration Act. Admittedly, the Agreement dated 20th April, 2007 has not been registered. Consequently, there is no transfer in terms of Section 2(47)(v) of the Act. (iii) The reliance by the Revenue upon the decision of this Court in Chaturbhuj D. Kapadia (supra) is misplaced. This is so, as it would have no application to the present facts, as the law prevailing at that time, did not r....
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....o transfer of the said land had taken place under the Development Agreement, the occasion to compute capital gains as proposed, would not arise. (ii) In the above view, no occasion arises to consider the submissions on behalf of the Revenue. However, at this, Mr. Chhotaray, learned Counsel for the Revenue states that Rs. 13.75 Crores which was paid to the Respondent should be brought to tax in the subject Assessment Year. We note that, the Agreement itself records an amount of Rs. 13.75 Crores is received as a deposit from M/s. Godrej Properties Ltd. Therefore, it is not an income. In any event, it is a settled position in law that every receipt is not necessarily income. It is for the Revenue to establish that the receipts constitutes the income (see CIT v/s. Parimisetti Seetharamamma 57 ITR 532 [SC]). This is so, as no transfer of land has taken place under the Development Agreement dated 20th April, 2007. Therefore, the Revenue must make out a case that the receipt is an income and under what head would it fall. In the absence of any such an exercise, this submission does not assist the Revenue. (iii) Thus, this Question being academic in the present facts, does not giv....