It 1S Not Disputed By Learned Counsel For The Parties That Theissues Involved Herein Have Already Been Decided By This Court In Itano.200 Of 2013 (C.s.atwal v. The Commissioner Of Income Tax,Ludhiana And Another)Vide Order Dated 22.7.2015, Wherein Afterexamining The Relevant Statutory Provisions And The Case Law On The

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH ITA No.430 of 2015 (O&M)Date of decision: 22.1.2016 Late Shri Narinder Singh through his wife and L/H Smt. Shiv DevKaur, Raja Narinder Singh Street, Nabha, District Patiala. Vs, .....- Appe DCIT circle, Sangrur ....mesponden CORAM: HON BLE MR. JUSTICK AJAY KUMAR MITTALHON BLE MRS. JUSTICEK RAJ RAHUL GARG Present: | Dr. Deepak Jindal, Advocate for the appellant-assessee, Mr. Zora Singh Klar, Advocate for the respondent-revenue, Ajay Kumar Mittal,J, 1]This appeal has been preferred by the appellant-assessee underSection 260A of the Income Tax Act, 1961 (in short, “the Act”) against theorder dated 15.7.2015, Annexure A.5 passed by the Income Tax AppellateTribunal, Chandigarh (in short, “the Tribunal’) under section 254(1) of theAct in ITA No.608/Chd/2014 for the assessment year 2007-08, claimingfollowing substantial questions of law:- 1) Whether the transactions in hand envisage a “transfer’’eligible to tax by reference to Section 2(47)(v) of the IncomeTax Act, 1961 read with Section 53A of the Transfer of PropertyAct, 1882? 11) Whether the Income Tax Appellate Tribunal has ignoredrights emanating from the JDA, legal effect of non registration of JDA, its alleged repudiation etc.? 111) Whether “possession” as envisaged by Section 2(47) (v) andSection 53A of the Transfer of Property Act, 1882 wasdelivered, and 1f so, its nature and legal effect? 1v) Whether there was any default on the part of the developers,and if so, its effect on the transactions and on eligibility to tax?v) Whether amount yet to be received can be taxed on anhypothetical assumption arising from the amount to bereceived ? ).It 1s not disputed by learned counsel for the parties that theissues involved herein have already been decided by this Court in ITANo.200 of 2013 (C.S.Atwal vs. The Commissioner of Income Tax,Ludhiana and another)vide order dated 22.7.2015, wherein afterexamining the relevant statutory provisions and the case law on the point,following conclusions were drawn:- 1) Perusal of the JDA dated 25.2.2007 read with sale deedsdated 2.3.007 and 25.4.2007 in respect of 3.08 acres and 4.62acres respectively would reveal that the parties had agreed forpro-rata transfer of land. 2) No possession had been given by the transferor to thetransferee of the entire land in part performance of JDA dated25292007 so as to fall within the domain of Section 53A of1882 Act. 3) The possession delivered, if at all, was as a licencee for thedevelopment of the property and not in the capacity of atransferee. 4) Further Section 53A of 1882 Act, by incorporation, stoodembodied in section 2(47)(v) of the Act and all the essentialingredients of Section 53A of 1882 Act were required to befulfilled. In the absence of registration of JDA dated 25.2.2007having been executed after 24.9.2001, the agreement does not fall under Section 53A of 1882 Act and consequently Section 2 (47)(v) of the Act does not apply, 5) It was submitted by learned counsel for the assessee-appellant that whatever amount was received from _ thdeveloper, capital gains tax has already been paid on that andsale deeds have also been executed. In view of cancellation ofJDA dated 25.2.2007, no further amount has been received andno action thereon has been taken. It was urged that as and whenany amount is received, capital gains tax shall be dischargedthereon in accordance with law. In view of the aforesaid stand,while disposing of the appeals, we observe that the assesseeappellants shall remain bound by their said stand. 6) The issue of exigibility to capital gains tax having beendecided in favour of the assessee, the question of exemptionunder Section 54F of the Act would not survive any longer andhas been rendered academic. 5) It was submitted by learned counsel for the assessee-appellant that whatever amount was received from _ thdeveloper, capital gains tax has already been paid on that andsale deeds have also been executed. In view of cancellation ofJDA dated 25.2.2007, no further amount has been received andno action thereon has been taken. It was urged that as and whenany amount is received, capital gains tax shall be dischargedthereon in accordance with law. In view of the aforesaid stand,while disposing of the appeals, we observe that the assesseeappellants shall remain bound by their said stand. 6) The issue of exigibility to capital gains tax having beendecided in favour of the assessee, the question of exemptionunder Section 54F of the Act would not survive any longer andhas been rendered academic. 7) The Tribunal and the authorities below were not right inholding the assessee-appellant to be liable to capital gains taxIn respect of remaining land measuring 13.5 acres for which noconsideration had been received and which stood cancelled andincapable of performance at present due to various orderspassed by the Supreme Court and the High Court in PILs,Therefore, the appeals are allowed.” 3)In view of the above, the appeal is disposed of in the same terms as in)C.S.Atwal'scase (supra). (Ajay Kumar Mittal)Judge January 22, 2016>.&> (Ray Rahul Garg)Judge