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| The Tax Publishers2019 TaxPub(DT) 5016 (Mum-Trib) INCOME TAX ACT, 1961
Section 2(47)(v)
Possession had not been given to developer by assessee society. In fact developer had filed a suit for specific performance in 2014 which was still pending before High Court. Hence, there was no transfer within the meaning of section 2(47)(v) read with section 53A of Transfer of Property Act, 1882, even based on part performance of the contract and accordingly, there could not be any incidence of capital gains.
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Capital gains - Transfer under section 2(47)(v) - JDA - No transfer of possession to joint developer
Assessee society entered into joint development agreement (JDA) as regards certain plot of land. AO sought to tax long-term capital gain during the year under consideration based on part performance of contract. Held: Possession had not been given to developer by assessee society. In fact developer had filed a suit for specific performance in 2014 which was still pending before High Court. Hence, there was no transfer within the meaning of section 2(47)(v) read with section 53A of Transfer of Property Act, 1882, even based on part performance of the contract and accordingly, there could not be any incidence of capital gains.
Distinguished:Chaturbhujdas Dwarikadas Kapadia in (2003) 260 ITR 491 (Bom) : 2003 TaxPub(DT) 1029 (Bom-HC)
REFERRED :
FAVOUR : In assessee's favour.
A.Y. : 2011-12
IN THE ITAT, MUMBAI BENCH
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