TaxTMI 
TaxTMI 
2019 (3) TMI 222
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....ble CIT, are opposed to law, weight of evidence, natural justice, probabilities, facts and circumstances of the Appellant's case. 2. The Hon'ble CIT(A) has erred in upholding the Order of Learned Assessing Officer with regarding the taxing the Capital Gains on the date of JDA considering it as transfer within the meaning of section 2(14) of the Income Tax Act based on the decision of Hon'ble High Court of Karnataka in the case of Dr T K Dayalu without considering the terms of JDA which clearly establishes that, it is only a license for construction and development of Property and it should not be construed as Transfer within the meaning of section 2(14) of the Income Tax Act, therefore the Order of CIT(A) is bad in law ....
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....fer within the meaning of section 2(14) of Income Tax Act., even though the Appellant has terminated the JDA and is not bound by any condition to proceed with the JDA., hence the Order need to be set aside. ii) The Assessment order is not maintainable as the Hon'ble CIT(A) have not considered the subdivision of the property among the family member of Appellant, the same need to considered in the interest of justice. iii) The levy of interest under section 234B and 234C are not in accordance with the law under the facts and circumstances of the Appellant's case and needs to be cancelled; iv) Grant other such relief and benefits as applicable to the Appellant in accordance with law. 8. In view of th....
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....ong with others, after converting property for non-agricultural purposes, has handed over the same to the developer for development and construction of flats with sharing ratio of 40:60. Hence, there is transfer within section 2(47)(v) and (vi) of the Act and section 53A of the Transfer of Property Act and the assessee is liable to payment of capital gains tax. Accordingly, the AO, dealt on the sale consideration and has worked out the capital gains on transfer of property Rs. 3,90,08,490/- and Assessed the total income of Rs. 3,93,37,460/- and passed the order u/s 143(3) of the Act dated 29/12/2011. 5. Aggrieved by the order, the assessee has filed an appeal with the CIT(A). In the appellate proceedings, the learned AR submitted that JD....
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....in the assessment order. With regard to the appellant's contention that the has been terminated and that the appellant is not liable to capital gains tax is not acceptable. As stated by the AO in the remand, cancellation deed duly registered before the Sub Registrar evidencing cancellation the registered JDA was not produced for verification. As evidenced by the remand report, it is crystal clear that the developer has not terminated the agreement. In view of the above, the addition made by the AO sustained to the extent of 1/4 share of the appellant. Reliance is a placed on the decision of the Hon'ble Karnataka High Court in the case Dr. T.K. Dayalu reported in 14 Taxmann.com 120. This ground is partly allowed." 6. Aggrieved by ....
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.... substantiate with the evidence of cancellation of registered JDA. 8. Whereas on the issue of handing over possession of the land by the assessee to the developer, the learned AR submitted that the developer has worked as licensee and there is no transfer within the meaning of section 2(47) of the Act and the learned AR supported his submissions relying on the decision of the co-ordinate bench of the Tribunal in the case of Smt. Lakshmi Swarupa vs. ITO in ITA No.2278/2018 dated 12/10/2008. We found the Hon'ble Supreme Court in the case of CIT vs. Balbir Singh Maini (398 ITR 531)(SC) and the Hon'ble Punjab & Haryana High Court in the case of C.S.Atwal vs. CIT (378 ITR 244)(P&H) where these aspects of transfer of property u/s 2(47) and sec....
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....wner throughout agreement, and had at no stage purported to transfer rights akin to ownership to developer-Income from capital gain on a transaction which never materialized was at best, hypothetical income-It was admitted that, for want of permissions, entire transaction of development envisaged in JDA fell through-There was no profit or gain which arose from transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act-Assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon necessary permissions being obtained-There was no debt owed to assessees by developers and therefore, assessees have not acquired any right to receive income under ....