Case Law Details
A. R. Prasad Vs ITO (ITAT Bangalore)
The issue under consideration is whether the capital gain will be chargeable in case of JDA even if Permissive possession was not handed over to builder during the concerned year?
ITAT states that, the possession is handed over to the builder only for limited purpose to enter upon the property for the purpose of implementation of JDA. In the present case, such permission to enter the scheduled property is granted subject to completion of certain conditions i.e. on approval of the plan and grant of licence for construction of the buildings from BBMP and/or from concerned authorities. As pe commencement certificate dated 24.08.2009 issued by BBMP, permission was granted by BBMP for commencement of building construction work on 24.08.2009. Hence, even as per this permission granted by the land owners in the present case to the builders to enter upon the property for the purpose of implementation of JDA, the builder cannot enter upon the property prior to 24.08.2009 and hence, in the present year up to 31.03.2009, the builder cannot enter upon the property. The tribunal in the above cited case held that the possession granted is in the nature of permissive possession and not possession in part performance of agreement for sale. In the present case, even this permissive possession is not given to the builder prior to 24.08.2009. Hence, ITAT hold that in the facts of the present case as discussed above, even permissive possession was not handed over to the builder in the present year and therefore, ITAT have held that there is no transfer in the present year and hence no capital gain will arise.
FULL TEXT OF THE ITAT JUDGEMENT
These two appeals are filed by two different but connected assesses being husband and wife and these are directed against two separate orders of learned CIT (A) – 6, Bangalore both dated 18.03.2016 for A. Y. 2009 – 10. Both these appeals were heard together and are being disposed of by way of this common order for the sake of convenience.
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