2021 (7) TMI 1039

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....ty and correctness of the order dated 20.2.2018, passed by the learned Single Judge, in Writ Petition Nos.54836-387/2017, is called in question in this intra-court appeal. 3. By the impugned order, learned Single Judge in the first instance has observed that the appellants/assessees had by-passed the remedy available to them under Section 246A of the Income Tax Act, 1961 (hereinafter referred to as 'the Act' for the sake of brevity) and had availed the revisional remedy under Section 264 of the Act. Further, learned Single Judge while considering the order of the revisional Authority passed under Section 264 of the Act, has extracted paragraph Nos.6 to 9 of the said order and concluded that there was no infirmity in the said order and ac....

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....tion 246A of the Act, cannot be sustained. 7. Coming to the merits of the case, the grievance of the assessees was, the lands in question bearing Sy.No.119, Part, measuring 1 Acre 22½ Guntas and Sy.No.213/1, Part, 3 Acres and 4½ Guntas, situated at Vajamangala village, Varuna Hobli, Mysore Taluk, which was the subject matter of a joint development agreement between the assessees and M/S. Skill Tech Engineers and Contractors Pvt. Ltd., attracted tax on capital gains, inasmuch as the said lands were capital assets. In this context, it is necessary to observe that, Chapter-IV of the Act deals with computation of income from capital gains. In that chapter, Section 48 deals with mode of computation. The income chargeable under t....

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....ying the said sub-clauses, there are certain criteria mentioned within the sub-clauses, which have been applied to the subject matter of transfer before demanding tax on capital gains on the transfer of land. 9. Further, Section 2(47) defines "transfer" in relation to a capital asset. Therefore, there has to be a transfer of a capital asset within the meaning of Section 2(47) of the Act, also before the said tax is attracted. 10. Hence, if there is (i) transfer and (ii) of a capital asset, as defined under the provisions of Section 2 of the Act, then it would attract Section 48 and other related provisions of Chapter-IV of the Act, for the purpose of raising a demand with regard to 'capital gains'. 11. In the instant case, on perus....