The Commissioner of Income Tax (Appeals) so also the learned Tribunal upon perusal of the agreement in question found that the possession as contemplated in Section 53A of the Transfer of Property Act was in fact not handed over by the assessee to the developer. It has further been found that the agreement only permitted the development to be carried out by the said developer. It has been found that the entire control over the property was in fact with the assesee inasmuch as the licence to construct the property was also in the name of the assessee and the occupancy certificate was also given to the assessee. It was therefore found that the execution of the agreement could not amount to transfer as contemplated under Section 53A of the Transfer of Property Act.
HIGH COURT OF BOMBAY AT GOA
TAX APPEALS NO. 11 & 12 OF 2013
TAX APPEAL NO.11 OF 2013, TAX APPEAL NO.12 OF 2013
The Commissioner of Income Tax,
V/s
Shri Sadia Shaikh
DATE : 2nd DECEMBER, 2013
ORAL ORDER: (Per B.R. GAVAI, J.)
The appeal challenges the order passed by the learned Income tax Appellate Tribunal, Panaji dated 16th January, 2013, thereby disposing the appeals filed by the appellant/Revenue challenging the order passed by the Commissioner of Income Tax (Appeals) dated 30th July, 2012 for the assessment year 2003 -04.
2. Heard Mrs. A. Dessai, the learned Counsel for the appellant and Shri A.N.S. Nadkarni, learned Senior Counsel appearing for the respondents.
3. Mrs. A. Dessai, the learned Standing Counsel submits that the following substantial question of law arises for consideration in the present appeals:
In the facts and circumstances of the case, whether the Hon’ble ITAT was justified in Law in upholding the Order of the Commissioner of Income Tax (Appeals) in which the CIT (A) held that the provisions of Section 2(47)(v) are not applicable for the assessment year and thereby deleted the addition of Rs.1,52,60,908/- made under the head, ‘short term capital gain’.
4. It is the contention of the appellant/Revenue that a development agreement was entered into by the Assessee on 5th October, 2002 with M/s. Landscape Developers for development of residential project namely Castle Rock and Cabo. It is further the case of the appellant that a similar development agreement was made with said M/s. Landscape Developers for sale and development of land admeasuring 16,140 sq. metres at Panaji.
5. Mrs. A. Dessai, the learned Standing Counsel submits that since the possession was handed over by the assessee to the said M/s. Landscape Developers during the said assessment year, it was a transfer within the meaning of sub-section 24 clause 5 of Section 2 of the Income Tax Act read with Section 53A of the Transfer of Property Act. As such, the Assessing Officer has rightly found that the assessee was liable to pay income by way of short term capital by the said amount.
6. The Commissioner of Income Tax (Appeals) so also the learned Tribunal upon perusal of the agreement in question found that the possession as contemplated in Section 53A of the Transfer of Property Act was in fact not handed over by the assessee to the developer. It has further been found that the agreement only permitted the development to be carried out by the said developer. It has been found that the entire control over the property was in fact with the assesee inasmuch as the licence to construct the property was also in the name of the assessee and the occupancy certificate was also given to the assessee. It was therefore found that the execution of the agreement could not amount to transfer as contemplated under Section 53A of the Transfer of Property Act. It was further found that the agreement dated 5th October, 2002 was specifically modified by sub-clause 2 of the agreement dated 1 9th July, 2004 and 5th March, 2008. It was further found that the assessee was liable to pay the capital gain as per the last agreement i.e. for assessment year 2008-09.
7. It can thus be seen that Commissioner of Income Tax (Appeals) as well as the learned Tribunal upon basis of the factual material placed before it and upon interpretation of the agreement entered between the assessee and the developer has found that the assessee was liable to pay capital gain in the year 2008-09, inasmuch as there was no possession handed over to the developer under Section 53A of the Transfer of Property Act in the assessment year 2003-04. It can thus be seen that finding recorded are upon appreciation of material led before the Commissioner of Income Tax (Appeals) and the Tribunal and upon consideration of the documents placed for its consideration. The said question therefore cannot be said to be a question of law, leave aside, the substantial question of law. The appeals are therefore found to be without merit and as such, stand dismissed.
