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Income Tax

No Capital Gains Tax on JDA Execution Until Land Possession Is Handed Over

Case Law Details

TaxGuru Citation
2025 taxguru.in 9304
Case Name
Srinivas Pampati Vs ITO (ITAT Hyderabad)
Date of Judgement/Order
Only available for paid members
Related Assessment Year
2013-14
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Srinivas Pampati Vs ITO (ITAT Hyderabad)

No Capital Gains Taxable on Mere Execution of Development Agreement Without Transfer of Possession – Section 2(47)(v) Not Attracted: ITAT Hyderabad

Both Assessees were joint landowners of 6,380 sq. yds. of land at Karimnagar. On 02.03.2013, they along with two others entered into a Development Agreement-cum-GPA (JDA) with M/s. Shriyam Infrastructure for construction of a multi-storeyed residential complex.

Under the JDA:

  • The total built-up area was 1,28,350 sq. ft.
  • Landowners were to receive 32% & developer 68% of the constructed area.
  • Stamp Duty Authority valued the JDA at ₹10.26 crore, & each co-owner’s share was taken at ₹1.71 crore.

AO reopened the assessment u/s 147 on the basis that Assessee had not declared any capital gains on this transaction. Since no details of cost or exemption were furnished, AO treated the entire ₹1.71 crore as long-term capital gain, completing reassessment u/s 147 r.w.s. 144B at a total income of ₹1.76 crore (order dated 19.05.2023). CIT(A), NFAC, Delhi upheld the addition ex parte as Assessee did not respond to appeal notices.

Assessee’s Arguments before ITAT

  • The JDA conferred only a limited licence to the developer to enter the land for construction purposes; no absolute possession was handed over.
  • Clause 10 of the JDA expressly stated that “possession for all practical & administrative purposes shall be deemed to have been given only upon handing over of the built-up area” to the landowners.
  • No consideration, monetary or otherwise, was received during the year.
  • Hence, the conditions of “transfer” under Section 2(47)(v) read with Section 53A of the Transfer of Property Act were not satisfied.
  • Photographs of the property filed before AO showed construction was still in progress.
  • Therefore, no taxable capital gains arose during A.Y. 2013–14.

Revenue’s Stand

  • Assessees failed to furnish cost & exemption details & were non-cooperative before both AO & CIT(A).
  • AO rightly computed capital gains based on the stamp duty valuation.
  • However, considering the new legal argument, the DR suggested remand to AO if necessary.

Tribunal’s Observations & Findings

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Author Info

CA Vijayakumar Shetty
Qualification: CA in Practice
Company: Shetty & Co, Chartered Accountants, Mangalore
Location: Mangalore, Karnataka
Articles Published: 6,899

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