Assessee, a Non-Resident Indian entered into a development agreement with a builder for constructing residential flats on a sharing basis. Tribunal held that development agreement as a transfer under section 2(47) hence liable for capital gains. On appeal the Court held that  from records that despite existence of a contract to transfer immovable property, signed by both parties, contract remained unexecuted for consideration. A  refundable performance guarantee mentioned in development agreement was not paid as consideration for transaction and possession was handed over to developer solely for development work, not as contemplated under section 53A of Transfer of Property Act, 1882.  Therefore  it could be said that transaction  did not fall within definition of transfer under section 2(47), hence the order of the Tribunal is set aside. Referred,  Shrimant Shamrao Suryavanshi v. Prahlad Bhariroba Suravanshi (2002) 3 SCC 676. (AY. 1997-98)