2019 (3) TMI 1203

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.... Revenue and held that the capital gains to be taxed with in the hands of the respondent/Assessee could arise only in the Assessment Year 2013-2014 and not in the year in question viz. Assessment Year 2011- 2012:- "i) Whether the Appellate Tribunal was right in holding that the Assessee is entitled for exemption under Section 54 of Income Tax Act? ii) Whether the Tribunal was correct in holding that the Assessee is eligible for exemption under Section 54 of the Income Tax Act in respect of building under construction despite the same having not constructed within the stipulated period of three years for availing benefit as per Section 54(1) of the Income Tax Act?" 2. The findings of the learned Tribunal in this regard a....

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....ment, the assessee would continue the physical possession of property till the developer get approval from Chennai Metropolitan Development Authority. After the approval, the physical possession of the property was handed over, which ultimately falls in assessment year 2013-14. Therefore, the assessee filed a revised return to claim exemption under Section 54 of the Act. This Tribunal is of the considered opinion that when the assessee handed over the entire land on the basis of arrangement that the developer could retain 30% of land in proportionate to constructed area, there was transfer of property in the assessment year 2013-14. 8. The cost of 30% of undivided share of land would be the cost of 70% constructed area at the rate ....

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.... was executed on 23.8.2010, therefore even though the final approval from the Chennai Metropolitan Development Authority was obtained only on 31.12.2012, the tax liability on capital gains should be assessed in the hands of the respondent/Assessee in the Assessment Year 2011-2012 and not 2013-2014 as held by the Tribunal. 4. Having heard the learned Senior Standing Counsel for the Revenue, Mr.T.R.Senthilkumar, we are satisfied that no substantial question of law arises in this Appeal by the Revenue and the finding of facts arrived at by the Tribunal, which are binding on the High Court under Section 260A of the Act, cannot be said to be perverse in any manner in the present case. The fact of execution of Joint Developer Agreement on 23.8....

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....erty Act also does not get attracted in such circumstances, as, admittedly, not even a part of consideration had passed on from the Developer to the Assessee in the Assessment Year 2011-2012. The mere execution of Joint Development Agreement and execution of Power of Attorney in favour of the Developer does not amount to 'transfer' within the meaning of Section 2(47) of the Act. 6. The facts of the case in the decision of Bombay High Court relied upon by the learned counsel for the Revenue are not only distinguishable from the facts of the present case, but, also the conclusion arrived at by the Bombay High Court supports the view which we have taken above. In that case, the Agreement was entered on 18.8.1994 and the entire payme....