TaxTMI 
TaxTMI 
2026 (7) TMI 805
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....-276 of the paper book. The Ld. AR submitted that the assessee and other co-owners were owners of the impugned land. They entered into Development Agreement with Naman Homemakers Pvt. Ltd. on 12.07.2011. As per the said Development Agreement, the assessee was to receive 50% of the constructed area. The Ld. AR submitted that at the time of execution of the Development Agreement, no amount was paid to the land owners by the developers. As per the agreement land, owners were still the owners of the land even after execution of the Development Agreement on 12.07.2011. The Ld. AR submitted that therefore as per the Development Agreement, once the flats were constructed, the subsequent purchaser of the flat had to enter into agreement with developer and the land owner. The Ld. AR submitted that this explains that the assessee had retained her rights in the land. The Ld. AR submitted that therefore there was no transfer as mentioned in section 2(47) of the Act. The Ld. AR submitted that hence no capital gain is taxable for AY 2012-13. The Ld. AR relied on the following case laws : i. Balasaheb Popatlarao Phadol Vs. ITO in ITA No. 891/PUN/2023, vide order dated 09.04.2025; ....
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....st page of the assessment order. The AO held that as per section 2(47)(v) and 2(47)(vi) r.w.s. 45 of the Act it was a transfer and accordingly, the AO calculated Long Term Capital Gain at Rs. 2,83,46,634/- as 50% share of the assessee. Aggrieved by the assessment order, the assessee filed an appeal before the Ld. CIT(A). Before the Ld. CIT(A), the assessee also claimed deduction u/s 54F of the Act. The assessee filed elaborate submission before the Ld. CIT(A) and claimed that there was no transfer of the property, hence, no capital gain. However, without prejudice, the assessee claimed deduction u/s 54F of the Act. The Ld. CIT(A) upheld the assessment order and rejected the assessee's claim for deduction u/s 54F of the Act. The assessee also submitted before the Ld. CIT(A) that the occupation certificate for the flats constructed as per Development Agreement was received on 01.10.2015. 4.2 Aggrieved by the order of the Ld. CIT(A), the assessee filed an appeal before this Tribunal. 5. In this case, admittedly, the assessee along with Shri Balaram Kacharya Nawadekar entered into a Development Agreement with Naman Homemakers Pvt. Ltd. for the development of land situated at Plot....
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....hall have the same meaning as in clause (d) of section 269UA.] Section 53A of the Transfer of Property Act is reproduced here under: [53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has. in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that ^2***, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other ....
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....der consideration. " Unquote. 8. Therefore, for all the reasons discussed above, we hold that there was no Transfer of impugned land as envisaged in Section 2(47)(v) of the Income Tax Act. 9. Similarly, the AO has not brought on record any evidence that the impugned land was transferred as envisaged in section 2(47)(vi) of the Income Tax Act. Hence, the said sub clause is not applicable to the present case. 10. We find support from the decision of the Hon'ble Bombay High Court in the case of in the case of Commissioner of Income-tax -9 vs. Eastern Ceramics Ltd., IT Appeal No. 68 OF 2010 vide order dated July 1, 2013 held as under : Quote, "vi) We find that the CIT(A) as well as the Tribunal had held that during the assessment year 2000-01,no transfer of capital assets by sale of land at Goregaon had taken place. This was not only for the reason that the respondent-assessee was restrained from disposing the factory land in question but also as observed by the CIT(A) and the Tribunal that during subject assessment year, no construction activity took place and even commencement certificate was issued in a sub sequent assessment year. The amount received by the respon....
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....in assessment year 2013-14 and the respective capital gains was also shown in the income tax return of assessment year 2013-14. However, deduction u/s 54F was claimed by the assessee against the said capital gain arising on sale of flats in subsequent assessment year & there is no information on record that the department has rejected the deduction claimed by the assessee in subsequent assessment year. The sole grievance of the assessee in this appeal is that although the development agreement was first entered during the period under consideration i.e. assessment year 2012-13 but subsequently a supplementary development was again entered & also registered in the subsequent assessment year & even the consideration i.e. flats were also received in subsequent assessment year i.e. in assessment year 2013-14 and the Assessing Officer erred in calculating capital gains during the period under consideration whereas according to the assessee the said capital gain was arising in subsequent assessment year i.e. in assessment year 2013-14. In this regard, we also find that the building permission was also given in subsequent assessment year & not during the period under consideration. Consid....