Case Law Details
Namita Dutta ITO (ITAT Delhi)
The ld. AR has categorically stated that the collaboration agreement dated 1.06.2006 was not at all registered and the construction house was handed over by the collaborator on 19.08.2008 to the assessee, the only issue involved in this appeal is that whether the transfer took place in Assessment Year 2007-08 as claimed by the Revenue or in Assessment Year 2009-10 as claimed by the assessee. With respect to the registration of the collaboration agreement the honourable Supreme Court in paragraph number 20 in Balbir Singh Maini’s case has held that the execution of unregistered Joint Development Agreement with an irrevocable Power of Attorney in favour of the Developer does not result in the “transfer” for capital gains liability.
Thus as the agreement in the present case is not registered one, it does not have any impact in the eye of law for the purpose of Section 53A of the transfer of property act and similarly for defining transfer Under the income tax act. Therefore In the present case, the Collaboration Agreement was never registered. Therefore, the presumption of delivery of possession to the Collaborator cannot be assumed on signing the Collaboration Agreement, i.e., in AY 2007-08.
Even otherwise the assessee has offered the above capital gain in assessment year 2009–10, which is the property for the assessment of the transfer of capital asset and consequent capital gain in view of the decision of the honourable Supreme Court as stated above.
FULL TEXT OF THE ITAT JUDGEMENT
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