| COURT: | P&H High Court |
| CORAM: | Ajay Kumar Mittal J, Fateh Deep Singh J |
| SECTION(S): | 2(47)(v), 2(47)(vi), 45, 48 |
| GENRE: | Domestic Tax |
| CATCH WORDS: | capital gains, Development agreement, transfer |
| COUNSEL: | Ajay Vohra, Rohit Jain |
| DATE: | July 22, 2015 (Date of pronouncement) |
| DATE: | July 28, 2015 (Date of publication) |
| AY: | 2007-08 |
| FILE: | Click here to view full post with file download link |
| CITATION: | |
| S. 2(47)(v)/(vi): Entire law on whether the entering into a joint development agreement with an irrevocable power of attorney in favour of the developer results in a "transfer" for purposes of capital gains explained | |
The concept of possession to be defined is an enormous task to be precisely elaborated. “Possession” is a word of open texture. It is an abstract notion. It implies a right to enjoy which is attached to the right to property. It is not purely a legal concept but is a matter of fact. The issue of ownership depends on rule of law whereas possession is a question dependent upon fact without reference to law. To put it differently, ownership is strictly a legal concept and possession is both a legal and a non-legal or pre-legal concept. The test for determining whether any person is in possession of anything is to see whether it is under his general control. He should be actually holding, using and enjoying it, without interference on the part of others. It would have to be ascertained in each case independently whether a transferee has been delivered possession in furtherance of the contract in order to fall under Section 53A of the 1882 Act and thus amenable to tax by virtue of Section 2(47)(v) read with Section 45 of the Act
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