INCOME TAX ACT, 1961

Section 2(47)(v)

Capital gains - Transfer within meaning of section 2(47)(v) - Permissive possession was not handed over to builder during the concerned year in terms of JDA -

Assessee entered into an agreement with M/s. Vaishnavi Infrastructures, for development of residential apartments in his land received refundable deposit in addition to built-up area to be received later. AO taxed capital gain during the concerned year. Held: As evident from terms of JDA, possession was handed over to builder only for limited purpose to enter upon property for the purpose of implementation of JDA and such permission to enter scheduled property was granted subject to completion of certain conditions, i.e., on approval of plan and grant of licence for construction of buildings from BBMP. Even permissive possession was not given to builder prior to 24-8-2009, i.e., the date of commencement certificate issued by BBMP, then what to talk about permission in part performance of agreement for sale. Hence, in the concerned year up to 31-3-2009, builder could not enter upon property and no capital gain could be taxed during the year under consideration.

REFERRED :

FAVOUR : In assessee's favour.

A.Y. : 2009-10

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