TaxTMI 
TaxTMI 
2018 (9) TMI 1163
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....T(A)-II/17-18 dated 21- 03-2018, is opposed to law, facts and circumstances of the case. 2. Whether the learned Commissioner of Income Tax (Appeals) was right in allowing the assessee's appeal by applying the ratio of Hon'ble Supreme Court Judgement in the case of CIT Vs Balbir Singh Maini. In the quoted case, the joint development agreement was between a co-operative society which did not own the land but only its members owned the land. 3. CIT(A) ought to have upheld the fact that, in this case the owner of the property himself has entered into an agreement. This agreement was a sale agreement and not a joint development agreement as in the cited case law. In the cited case law only 50% of the price agreed was pa....
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....on. The A. O. concluded that since the resultant capital gain was not offered for taxation, there was escapement of income and he issued notice u/s 148 of the I. T. Act on 16. 07. 2017. 3. 1 The assessee in response to notice issued u/s 148 of the I. T. Act, filed a return of income disclosing the income declared in the original return of income. The assessee contended that the agreement for sale was not acted upon and the advance amount received by the purchaser was refunded. It was submitted that the assessee was the owner of the property even as on the date of assessment proceedings. It was further submitted that as per the terms of the agreement for sale, the assessee-vendor was supposed to develop the land so as to make it fit for c....
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....e dated 12. 12. 2008. The CIT(A) further held the advance received from the purchaser was refunded by the assessee and the property in question still remained with the assessee. Therefore, it was concluded by the CIT(A) that there was no transfer giving raise to any capital gain. The relevant finding of the CIT(A) reads as follows:- "I have gone through the assessment order and submission of the appellant. The assessee had made substantial cash deposits in his bank account. On being asked by the Assessing Officer, the assessee stated that the cash deposits were made out of advance received against a proposed sale of property. The Assessing Officer verified the agreement to sell vis-a-vis advance received and found that out of the t....
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....of CIT vs. Balbir Singh Maini. In my opinion, since there is no evidence to prove that the possession of the property was handed over to the buyer, the agreement to sale was not registered, and later on the same was cancelled, and advance taken was refunded it cannot be said that any transfer has taken at all. Ultimately, the property could not be sold and there cannot be capital gains without sale. " 5. The Revenue being aggrieved, has filed the present appeal before the Tribunal. The learned Departmental Representative relied on the grounds raised and strongly supported the reassessment order dated 23. 11. 2017. The learned AR, on the other hand, submitted that the possession in question of the impugned property was never hand....
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....- "20. The effect of the aforesaid amendment is that, on and after the commencement of the Amendment Act of 2001, if an agreement, like the JDA in the present case, is not registered, then it shall have no effect in law for the purposes of section 53A. In short, there is no agreement in the eyes of law which can be enforced under section 53A of the Transfer of Property Act. This being the case, we are of the view that the High Court was right in stating that in order to qualify as a "transfer" of a capital asset under section 2(47)(v) of the Act, there must be a "contract" which can be enforced in law under section 53A of the Transfer of Property Act. A reading of section 17(1A) and section 49 of the Registration Act shows that in ....