TaxTMI 
TaxTMI 
2026 (3) TMI 1189
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....ear 2005-06. 2. The above appeal is admitted to consider the following substantial questions of law: "35. Whether the Tribunal was justified in law in holding that there has been transfer within the meaning of section 2(47) of the Income Tax act read with section 53A of the Transfer of Property Act, 1882 on the facts of the case. 36. Whether the Tribunal was justified in law in not holding that the mandatory conditions for reopening the assessment did not exist and consequently the entire assessment is bad in law and liable to be set aside on the facts of the case. 37. Whether the Tribunal failed to appreciate that the notice under section 148 issued is bad in law and not in accordance with law and consequently....
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....ce of a contract of the nature referred to in Section 53A of the Transfer of Property Act, 1882 (for short, "the TP Act"), the Assessing Officer reopened the assessment by issuing notice under Section 148 of the IT Act. 3.2 Upon conclusion of the reassessment proceedings, the Assessing Officer held that the assessee had handed over possession of the land to the builder for the purpose of construction of flats. It was further held that the assessee had executed a registered General Power of Attorney (GPA) in favour of the builder on the date of the JDA. According to the Assessing Officer, the execution of the GPA itself established that possession of the property had been delivered to the builder, thereby amounting to a transfer under Sec....
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....ided that the permission granted to enter the property shall not be construed as delivery of possession within the meaning of Section 53A of the TP Act. 4.2 It is further submitted that the transfer of the undivided interest in the land was effected in the Assessment Years 2007-08 and 2008-09, and that the taxes thereon have already been paid. Therefore, if the very same consideration is subjected to tax in the present Assessment Year 2005-06, it would result in a double levy on the same income, which is impermissible in law. 4.3 Insofar as the substantial questions of law relating to the validity of the reopening of the assessment are concerned, learned Senior Counsel submits that the said questions are not pressed in the present app....
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....ur of the persons identified or nominated by the developer, for that very purpose the GPA was executed, thereby transferring complete control and rights over the developer's share. 5.3 In the aforesaid circumstances, it is contended that the concurrent findings recorded by all the three authorities, holding that the JDA resulted in a transfer under Section 2(47)(v) of the IT Act, do not warrant interference. 6. We have considered the submissions of learned counsel for the parties and perused the appeal papers. 7. The assessee entered into a JDA dated 12.05.2004, relevant to the Assessment Year 2005-06. It is also on record that, on the very same day, the assessee executed a GPA in favour of the developer. According to the assessee,....
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.....) Ltd. v. Assistant Commissioner of Income-tax, Company Circle VI(2), Chennai, reported in (2020) 421 ITR 46 (SC). 8. A comprehensive reading of the JDA prima facie indicates that there was a transfer within the meaning of Section 2(47)(v) of the IT Act. The Assessing Officer has placed reliance on the GPA executed contemporaneously with the JDA. However, the said GPA has not been placed before this Court. In the absence of the GPA, we have no occasion to independently examine the applicability of Section 2(47)(v) of the IT Act in its entirety. 8.1 Though the JDA contains a clause stating that the possession delivered shall not be construed as possession within the meaning of Section 53A of the TP Act, there are other clauses which c....
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.... reopened to bring the very same consideration to tax as capital gains on the ground that the transfer was taxable in that year. The contention of the assessee is that the return of income for the Assessment Year 2008-09, wherein the benefit under Section 54 of the IT Act was claimed, has been accepted, and taxes have been duly paid on the balance consideration in the Assessment Years 2007-08 and 2008-09. Therefore, subjecting the same consideration once again to tax in the Assessment Year 2005- 06 would, in effect, be revenue neutral. 9.3 It is a settled position of law that tax is to be levied on income in the relevant assessment year and in the hands of the correct assessee. The mere fact that income has been offered to tax in another....