ORDER
Per Vijay Pal Rao, Judicial Member. - This appeal by the assessee is directed against the order of the CIT (Appeals) dated 31-3-2004. The only issue raised in this appeal for consideration and determination is whether the transaction between the assessee and the developer under the Development Agreement will fall within the definition of 'transfer' as per section 2(47)( v) of the Income-tax Act and if so, the withdrawal of exemption under section 54 of the Act is justified.
2. The brief facts of the case are that the assessee has inherited residential house property bearing No. 51, Murugappa Mudali Street, Purasawakkam, Chennai from his mother vide will dated 12-8-1988. The said property was sold by the assessee on 25-7-1994 for a consideration of Rs. 7.80 lakhs and the sale proceeds was utilised for purchasing the property situated at 4/2, Gandhi Avenue, Purasawakkam, Chennai on 24-8-1994 for a total consideration of Rs. 10,78,039. The assessee also purchased another property bearing No. 4/1, Gandhi Avenue, Purasawakkam, Chennai on 30-4-1990 for a sum of Rs. 6,39,353. The assessee filed his return of income for the assessment year 1995-96 on 14-8-1995 admitting a total income of Rs. 39,590 after claiming exemption under section 54 of the Act on the capital gain arising out of sale of the house property at No. 51, Murugappa Mudali Street, Purasawakkam, Chennai, on the ground that the entire sale consideration was invested for purchase of house property at 4/2, Gandhi Avenue, Purasawakkam, Chennai. The return was completed under section 143(1) of the Income-tax Act on 15-7-1997. Subsequently, the Assessing Officer noticed that the assessee sold two properties, i.e., 4/1, Gandhi Avenue, Purasawakkam, Chennai and 4/2, Gandhi Avenue, Purasa-wakkam, Chennai, during the accounting period relevant for the assessment year under consideration. It was also noticed by the Assessing Officer that the exemption claimed and allowed under section 54 of the Act in respect of capital gain arising out of the sale of property at No. 51, Murugappa Mudali Street, Purasawakkam, Chennai earlier was not correct since the pro-perty at No. 4/2, Gandhi Avenue, Purasawakkam, Chennai was also sold within the period of three years from the date of purchase of the new asset. Accordingly, the Assessing Officer reopened the assessment under section 147 of the Act by issue of notice under section 148 on 21-3-2002, after obtaining the approval of the Jt. CIT. The assessment was completed vide assessment order dated 28-3-2003 whereby the exemption under section 54 was withdrawn and capital gain was assessed. Aggrieved by this order under section 147, read with section 143(1), the assessee filed appeal before the CIT (Appeals), who has dismissed the appeal of the assessee vide his impugned order dated 31-3-2004.
3. While dismissing the appeal of the assessee, the CIT (Appeals), after following the decision of the Hon'ble Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia… v. Commissioner Of Income-Tax, Bombay City-Viii… [2003] 260 ITR 491 has confirmed the order of the Assessing Officer. Further aggrieved by the order of the CIT (Appeals), the assessee filed this present appeal before us.
4. Before us, the learned counsel for the assessee submitted that the Development Agreement under consideration would in no way result in transfer as envisaged in the definition of the same term in-built in the Act. He further contended that the CIT (Appeals) has failed to appreciate that the legal principles governing the construction of a document was not followed while understanding the document of development under consideration. He submitted that the development agreement under consideration does not amount to transfer of the property and the provisions of section 54 of the Act has not been violated. The main thrust of the argument of the learned counsel for the assessee is that the substance of the agreement, in question, does not amount to transfer within the meaning of section 2(47)( v) of the Act. Therefore, the authorities below have committed illegality and error in treating the transaction as transfer and withdrawing the exemption under section 54 of the Act.
5. The ld. Departmental Representative, on the other hand, heavily relied on the orders of the lower authorities.
6. We have considered the rival submissions carefully in the light of the material on record. We note that the assessee has entered into two separate agreements with respect to property at No. 4/1, Gandhi Avenue, Purasawakkam, Chennai and No. 4/2, Gandhi Avenue, Purasawakkam, Chennai whereby one of the shares of the property was transferred and possession was also handed over to the vendee for construction of flats on both the properties. After construction of all the flats, the vendee was to retain half of the constructed portion and half portion will remain with the assessee. In the agreement itself, the total consideration of sale of the said undivided share in the property bearing Nos. 4/1 and 4/2, Gandhi Avenue, Purasawakkam, Chennai are agreed by the parties at Rs. 8,25,000 and Rs. 67,500 respectively. The earnest money of Rs. 1 lakh each in respect of these properties was also received by the assessee from the vendee by means of two cheques though the same was to be returned to the purchaser after handing over of the built-up portion to the assessee. Apart from these agreements, a Power of Attorney was also executed by the assessee in favour of the purchaser. The purchaser was authorised to execute the sale deed, sale transfer, conveyance deed, and do all necessary acts and deeds for construction and sale of one half portion of the respective properties. Now, the question arises whether the agreement to sell/develop the property with power of attorney in favour of the purchaser/developer coupled with handing over of the possession of half of the share in the respective properties constitute transfer of the properties or not.
7. In the case of Chaturbhuj Dwarkadas Kapadia's case (supra), the Hon'ble Bombay High Court has held that :—
"Under section 2(47)( v), any transaction involving allowing of possession to be taken over or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act would come within the ambit of section 2(47)( v). That, in order to attract section 53A, the following conditions need to be fulfilled. There should be a contract for consideration; it should be in writing; it should be signed by the transferor; it should pertain to transfer of immovable property; the transferee should have taken possession of the property; lastly, the transferee should be ready and willing to perform his part of the contract. That even arrangements confirming privileges of ownership without transfer of title could fall under section 2(47)( v). Section 2(47)( v) was introduced in the Act from the assessment year 1988-89 because prior thereto, in most cases, it was argued on behalf of the assessee that no transfer took place till execution of the conveyance. Consequently, the assessees used to enter into agreements for developing properties with the builders and under the arrangement with the builders, they used to confer privileges of ownership without executing conveyance and to plug that loophole, section 2(47)( v) came to be introduced in the Act."
8. The Assessing Officer also relied upon the judgment of the Hon'ble Jurisdictional High Court in the case of Commissioner Of Income-Tax v. K. Jeelani Basha [2002] 256 ITR 282 (Mad.) , wherein the High Court has held that :—
". . . once possession, even of a part of the property was handed over to the transferee, for the purpose of section 2(47)( v) of the Income-tax Act, 1961, read with section 45, the transfer was complete and, therefore, the Tribunal was justified in calculating the capital gains on the basis of the consideration received in that particular year for that part of the property which was parted with."
9. During the course of argument, the learned counsel for the assessee has relied upon the order of the Mumbai Bench of the Tribunal in the case of Shivram Co-operative Housing Society Ltd. v. Dy. CIT [1999] 70 ITD 8 . In that case, the issue before the Tribunal was that the transfer has taken place in various stages and, therefore, the computation of capital gain was to be worked out on the basis of the sale consideration actually received during the year in respect of the portion of land transferred in that year only. In our view, the said decision is not applicable to the facts of the present case because the issue involved is clearly different, as in the present case, the alleged transfer of the property in question is only one time at the time of execution of documents and handing over possession of the property.
10. As per the ruling of the Authority for Advance Ruling in the case of Jasbir Singh Sarkaria, In re [2007] 294 ITR 196 (New Delhi) , in paragraphs 26 and 27, it has been ruled as under:—
"26. On a fair and reasonable interpretation and on adopting the principle of purposive construction, it must be held that possession contemplated by clause (v) need not necessarily be sole and exclusive possession. So long as the transferee is, by virtue of the possession given, enabled to exercise general control over the property and to make use of it for the intended purpose, the mere fact that the owner has also the right to enter the property to oversee the development work or to ensure performance of the terms of agreement does not introduce any incompatibility. The concurrent possession of the owner who can exercise possessory rights to a limited extent and for a limited purpose and that of the buyer/developer who has a general control and custody of the land can very well be reconciled. Clause (v) of section 2(47 ) will have its full play even in such a situation. There is no warrant to postpone the operation of clause (v) and the resultant accrual of capital gain to a point of time when the concurrent possession will become exclusive possession of developer/transferee after he pays full consideration.
27. Further, if "possession" referred to in clause (v ) is to be understood as exclusive possession of the transferee/developer, then, the very purpose of the amendment expanding the definition of transfer for the purpose of capital gains may be defeated."
11. Keeping in view the nature of the transaction between the assessee and the so-called Developer, coupled with the transfer and the possession of the immovable properties, we find that the transaction amounts to conveyance in favour of the purchaser of the properties and the transfer was completed on the date when the purchases were executed and possession was handed over. By means of these documents executed by the assessee, the assessee had transferred all material rights and interest in the property, coupled with possession in favour of the purchaser which by no means is other than the transfer of the properties. As per clause (v) of section 2(47) of the Income-tax Act, transfer includes any transaction which allows possession to be taken/ retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, and any transaction entered into in any manner which has the effect of transferring or enabling the enjoyment of any immovable property. Therefore, any transaction involving allowing of possession to be taken over or retained in part performance as referred to in section 53A of Transfer of Property Act would come within the ambit of section 2(47)( v) of the Income-tax Act.
12. In the present case, when the possession was handed over and total consideration was also agreed upon by the parties and the vendor was allowed to enjoy and entertain the property for the purpose it was taken over, then the transaction has fulfilled the conditions required under section 53A of the Transfer of Property Act and, therefore, it is covered under the definition of 'transfer' under section 2(47)( v) of the Income-tax Act. We are of the considered view that the assessee has failed to establish any case in its favour and, accordingly, the appeal of the assessee is devoid of merit. Hence, we confirm the order of the CIT (Appeals).
13. In the result, the appeal filed by the assessee is dismissed.
44/523