|CORAM:||P.M.Jagtap (AM), Saktijit Dey (JM)|
|CATCH WORDS:||Developer, Development agreement, part performance of contract, transfer|
|DATE:||November 26, 2014 (Date of pronouncement)|
|DATE:||December 1, 2014 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 2(47)/ 53A: Mere handing over possession pursuant to development agreement does not result in transfer if developer has not taken steps for development of property|
The AO has assessed capital gain in the assessment year for the reason that assessee as per the terms of the development agreement entered with the developer has handed over possession of the property. However, as can be seen from the order of learned CIT(A) as well as other facts and materials on record, there is no evidence that the developer has taken any steps for development towards performance of his part of contract under the development agreement by undertaking any steps for development of the property. On the other hand, facts and materials clearly show that there is complete lack of willingness on the part of the developer in undertaking the development activity. In fact for that reason, assessee and other land holders instituted a suit against the developer seeking cancellation of development agreement. Further, on a perusal of the order passed by the coordinate bench in case of Sri R. Srinivasa Rao in ITA No. 1786/Hyd/12 and others (supra), we find that on considering identical facts and circumstances arising out of same development agreement with M/s Amsri Developers, the coordinate bench has given categorical finding while upholding the order of learned CIT(A) that there is no transfer as envisaged u/s 2(47)(v) since there is no willingness on the part of the developer to undertake the development activity.