Income Tax Appellate Tribunal - Hyderabad
Smt. R Venkataramani, Hyderabad vs Department Of Income Tax on 26 February, 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH "A", HYDERABAD
BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER
AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER
Sl.No. ITA No. AY Assessee Respondent
1 100/H/14 2008-09 Asst. Smt. N. Sarojini,
Commissioner of Hyderabad.
Income-tax,
Central Circle - PAN -
5, Hyd. ALCPN0953C
2 101/H/14 2008-09 -do- Smt. R.
Venkataramani,
Hyderabad
PAN -
AJKPR 7456E
Revenue by Shri Ramakrishna Bandi
Assessee by S/Shri K.C. Devdas/A. Srinivas
Date of hearing 24-02-2015 & 25/02/2015
Date of pronouncement 26-02-2015
O RDE R
PER ASHA VIJAYARAGHAVAN, J.M.:
These appeals by the revenue, in respect of two assessees, are directed against separate orders of ld. CIT(A)-VII, Hyderabad, both, dated 29/11/2013 for AY 2008-09.
ITA No. 100/Hyd/2014 in case of Smt. N. Sarojini2. In this appeal, the revenue has raised the following grounds:
"1. On the facts and circumstances of the case, and in law, the CIT(A) erred in holding that capital gains on account of development agreement entered into by the assessee with M/s Amsri Developers Pvt. Ltd. on 04/05/2007 did not arise in AY 2008-09.2
ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani
2. The assessee prays that the order of the CIT(A) on the above ground be set aside and that of the AO be restored."
3. Briefly the facts of the case are, in course of the search proceedings in the case of Sri Venigalla Anand Prasad, Bhavya Cements, Bhavya Constructions and other related parties on 07/10/2009, certain documents/papers relating to Smt. N. Sarojini, the assessee were found. A notice dated 30/08/2010 u/s 153C of the IT Act was issued and assessee filed return in response to this notice on 12/11/2010. In the return filed in response to the notice u/s 153C, the income returned was Rs 6,17,630/-, which included items admitted in course of search proceedings to the tune of Rs.3,61,861/- (pension of 1,06,642/- under the head "Salaries" & interest income of Rs.2,55,219/- under the head "Income from other sources") apart from the income from house property to the tune of Rs 2,55,766/- In the computation statement the assessee had not disclosed any income towards capital gains on account of the development agreement she had entered into.
4. The relevant facts as noted by the Assessing Officer in his order, which are summarized by the CIT(A) in his order are as under:
i) The assessee had purchased 9 acres 8 guntas in survey no.673/1 (Ac 1.20 gts), Survey No.665 (4 Ac 28 gts), Survey No.668 (2 AC.11 gts) and Survey NO.669 (0.29 gts) situated at Dundigal, RR Dist, for an amount of Rs. 9,88,800/-
through registered sale deed dated 20.12.2004, in document no.16953/2004.
ii) Assessee sold 1 acre 8 guntas out of the above 9 acres 8 guntas to M/s Varun constructions through the sale cum GPA dated 12.03.2007 in document no. 4963/2007, for an amount of Rs. 1,20,00,000. The balance 8 acres were given to M/s AMSRI 3 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani Developers through a Development Agreement along with 3 others.
iii) The assessee had purchased and transacted in the land which was contiguous to the land purchased and similarly transacted by M/s Bhavya Constructions Pvt Ltd (BCPL), Sri V Ananda Prasad (MD of BCPL), and other individuals, who all, like the assessee- assessee, were the investors in Mls Bhavya Cements Pvt Ltd, a company set up by Sri V Ananda Prasad. All these persons (34 persons including the assessee) had had jointly entered into a development agreement with M/s AMSRI Developers for the development of their lands totaling 123 acres and 05 guntas.
iv) The development agreement cum GPA in Doc. No 7110 and dated 04/05/2007 was signed by the 34 people. M/s AMSRI Developers had given an amount of Rs 13 lakhs per acre as refundable security deposit in furtherance of the development agreement. As per the registered document, the market value of the entire project referred was Rs 720 crores and with the sharing ratio of 35% to the land owners on the built up area and undivided land.
v) In the assessment order, the AO dealt with the statement recorded from Sri Ananda Prasad, the MD of M/s Bhavya Constructions Pvt Ltd and proceeded to analyze the provisions of section 2C 47)(v) r. w section 45 . In the extract of submissions of assessee given on page 2, it is also seen that the assessee submitted that the assessee and others are contemplating filing of a suit for cancellation of development agreement as there was no progress whatsoever even after 4.5 years.
5. Finally, the AO relying upon few case laws, came to the conclusion that capital gains accrued to the assessee and other 33 persons and, hence, proceeded to tax the capital gains on account of the development agreement. Accordingly, the resultant 4 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani capital gains computed in the hands of assessee at Rs. 18,96,08,900. Aggrieved by the order of Assessing Officer, assessee has preferred an appeal before the CIT(A).
6. Before the CIT(A), It was stated that there was no development activity on behalf of the developer and hence the assessee and others had filed a case for cancellation of the development agreement. Details of court cases were also called for and the copy of the petition filed in the court was submitted. The assessee / counsel also filed two detailed paper books in course of the hearing enclosing written arguments and applicable case laws which were referred by the counsel in the submissions made. Relying on various case laws, it was submitted that the development agreement itself cannot be considered u/s 2(47), and that capital gains cannot be levied when the computation mechanism fails. For this proposition, AR of assessee relied on the decision of coordinate bench of Hyderabad in case of Smt. Radhika and others, 47 SOT 180 to claim that capital gains do not arise on the date of transfer on 04/05/2007. It was also stated that the Assessing Officer's premise that there was postponement of tax liability is incorrect as no income actually arose to the assessee during the year. The AR of the assessee vide submissions filed on 10/09/13 also enclosed copy of the order of the CIT(A)-V, dated 03/10/12 in the case of Bhavya Constructions Pvt. Ltd. wherein it was held that the transfer takes place only when the constructed area is given to the owners.
7. After considering the submissions of the assessee, the CIT(A) discussed the issue in dispute elaborately with various case laws vide para Nos. 15 to 23 and finally held as under:
24. On further clicking the project on this website, , the only description available is:-" The project is being implemented at Bowrampet, Hyderabad, adjacent to Outer ring road as an integrated township spread over an area of 260 acres. This 5 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani is proposed as a modern township complete with residential, commercial, retail, entertainment and schooling facilities for the residents." The copies of website pages (2 nos.) are overleaf.
The built up area details are mentioned as : - "to be announced"
The approximate SFT price is also given as "to be announced".
25. The above lends credibility to the stand of assessee that there was no willingness or part-performance on part of the developer during the relevant previous year or even for next 4 years finally leading to collapse of the agreement when a Suit seeking its cancellation is filed and is presently in court.
26. It is also seen that apart from the Rs 13 lakh per acre that the assessees and others received as refundable security deposit, there was no further payment. Since 2007 May, there was no further movement and no willingness of the developer to do his part of the deal could be seen. I am therefore constrained to hold that no capital gains arise to the assessee in the year 2008-09 based on this development agreement which turned out to be a non- starter. Consequently, there is no income to be taxed as capital gains on account of the development agreement.
Aggrieved, by the order of CIT(A), the revenue is in appeal before us.
8. The learned DR relying on the order of Assessing Officer submitted that as the assessee has handed over possession of the property on the date of entering into development agreement there was transfer within the meaning of section 2(47)(v) of the Act.
9. The learned AR on the other hand strongly supporting the order of the CIT(A) submitted that though the assessee had entered into the development agreement in the previous year relating to the AY under dispute, but, as the developer has neither performed nor is willing to perform his part of the contract, the development agreement fails. The learned AR reiterating the submissions made before the CIT(A) 6 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani contended that even as on date there is no development activity by the developer. The conversion of the land from agricultural to non- agricultural has also not taken place. It was submitted that for this very reason the assessee along with land owners have filed a suit in the city civil court for cancellation of the development agreement, which is pending. In these circumstances, it cannot be said that there is transfer of property giving rise to capital gain. The learned AR submitted that as developer is totally unwilling to perform his part of contract, the conditions of section 2(47)(v) read with section 53A of the TP Act, is not fulfilled. In support of such contention the learned AR relied upon a decision of the ITAT, Hyderabad in case of Smt. K. Radhika and others v. DCIT (supra) and a recent decision of ITAT, Hyderabad 'B' Bench in case of Binjusaria Properties Ltd Vs. ACIT, dated 04/04/2014.
10. We have considered the submissions of the parties and perused the materials on record along with the orders passed by the revenue authorities. Similar issue came up for consideration before us in case of M/s Bhavya Constructions Pvt. Ltd., and others who are jointly entered into a development agreement with M/s AMSRI Developers for the development of the lands along with assessee, in ITA Nos. 1788/Hy/12 and others vide order dated 28/08/2014 wherein the coordinate bench held as under:
"11. We have considered the submissions of the parties and perused the materials on record along with the orders passed by the revenue authorities We have also carefully applied our mind to the decisions placed before us. It is clear from the assessment order that the AO has computed capital gain in the impugned assessment year solely on the basis of the fact that assessee has entered into the development agreement with the developer 04/05/2007 and handed over possession of the property. He has also put stress on the fact that the assessee has received refundable security deposit from the developer @ Rs. 13 lakhs per acre. However, as rightly held by the learned CIT(A) neither entering into the development agreement or handing over of the possession of property are the sole and 7 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani exclusive criteria to construe transfer of capital asset as envisaged u/s 2(47)(v) of the Act. On plain reading of section 2(47)(v) would make it clear that it refers to handing over possession of the property under a development agreement towards part performance of contract as envisaged u/s 53A of the TP Act. However, the handing over of possession by the assessee towards part performance of contract will not amount to transfer unless the transferee is also willing and ready to perform his part of the contract under the development agreement. As can be seen from the facts and materials on record, the developer apart from making payment of the refundable security deposit of Rs. 13 lakhs per acre has not taken any step towards development of the property. In fact the most important act of converting the nature of land from agriculture to non agriculture has not been put into motion. The nature and character of land remains as it is even today. The Developer has not taken any steps to get sanction/approval of plan, building construction, etc. from the competent authorities. Even not a single development activity like leveling of land, sales promotion, has been initiated by the developer. These facts, which have not been controverted by the department, clearly demonstrate unwillingness on the part of the developer to perform his part of the contract. It is also a matter requiring consideration that the assessee along with other land owners have filed a civil suit for cancellation of the development agreement, which clearly brings out the dispute between the land owners and developer and also the fact that developer has not only failed to perform but is also unwilling to perform his part of the contract. Therefore, when the developer has not performed or there is unwillingness to perform his part of the contract, it cannot be concluded that there is transfer of capital asset in terms with section 2(47(v) read with section 53A of the TP Act only because the assessee has entered into a development agreement or even handed over possession of the land to the developer during the previous year relevant to AY under dispute. As rightly held by the ld. CIT(A), handing over possession of the property is not the sole criteria but one of the criteria to construe 'transfer' u/s 53A of the T.P. Act. The ITAT Hyderabad Bench in case of Smt. K. Radhika Vs. DCIT (supra) has held as under:
"48. We are in considered agreement with the views so expressed in this commentary on the provisions of the Transfer of Property Act. It is thus clear that 'willingness to perform' for the purposes of Section 53A is something more than a statement of intent; it is the unqualified and unconditional willingness on the part of the vendee to perform its obligations. Unless the party has performed or is willing to perform its obligations under the contract, and in the same sequence in which these are to be performed, 8 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani it cannot be said that the provisions of Section 53A of the Transfer of Property Act will come into play on the facts of that case. It is only elementary that, unless provisions of Section 53A of the Transfer of Property Act are satisfied on the facts of a case, the transaction in question cannot fall within the scope of deemed transfer under Section 2(47)(v) of the IT Act. Let us therefore consider whether the transferee, on the facts of the present case, can be said to have 'performed or is willing to perform' its obligations under the agreement.
49. Even a cursory look at the admitted facts of the case would show that the transferee had neither performed nor was it willing to perform its obligation under the agreement in the assessment year under consideration. The agreement based on which capital gains are sought to be taxed in the present case is agreement dated 11.05.2005 but this agreement was not adhered to by the transferee. The transferee originally made a payment of Rs.10 lakhs on 11.5.2005 and another payment of Rs.90 lakhs on the same day as refundable security deposit. However, out of this a sum of Rs.50 lakhs was said to be refunded by the landlord to the developer on 5.3.2009. As such, the assessee has received only a meager amount as refundable security deposit which cannot be construed as receipt of part of sale consideration. Admittedly, there is no progress in the development agreement in the assessment year under consideration. The Municipal sanction for development was obtained not in this assessment year and it was obtained only on 17.09.2006 from the Hyderabad Urban Development Authority. The sanction of the building plan is utmost important for the implementation of the agreement entered between the parties. Without sanction of the building plan, the very genesis of the agreement fails. To enable the execution of the agreement, firstly, plan is to be approved by the competent authority. In fact, the building plan was not got approved by the builder in the assessment year under consideration. Until permission is granted, a developer cannot undertake construction. As a result of this lapse by the transferee, the construction was not taken place in the assessment year under consideration. There is a breach and break down of development agreement in the assessment year under consideration. Nothing is brought on record by authorities to show that there was development activity in the project during the assessment year under consideration and cost of construction was incurred by the builder/developer. Hence it is to be inferred that no amount of investment by the developer in 9 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani the construction activity during the assessment year in this project and it would amount to non-incurring of required cost of acquisition by the developer. In the assessment year under consideration, it is not possible to say whether the developer prepared to carry out those parts of the agreement to their logical end. The developer in this assessment year had not shown its readiness or having made preparation for the compliance of the agreement. The developer has not taken steps to make it eligible to undertake the performance of the agreement which are the primary ingredient that make a person eligible and entitled to make the construction. The act and conduct of the developer in this assessment year shows that it had violated essential terms of the agreement which tend to subvert the relationship established by the development agreement. Being so, it was clear that in the year under consideration, there was no transfer of not only the flats as superstructure but also the proportionate land by the assessee under the joint development agreement. As per clause no. 12.11 and 19.1 of Development Agreement-cum Power of Attorney, time is the essence of the contract and as per clause No.12.11 the said property is to be developed and hand over the possession of the owners' allocation to the owners' and or their nominees within 24 months from the date of receiving the sanction of the plan from HUDA and Municipality/Gram Panchayat with a further grace period of 3 months. But the fact remains that the transferee was not only failed to perform its obligations under the agreement, but also unwilling to perform its obligations in the assessment year under consideration. Even otherwise, the assessing authorities has not brought on record the actual position of the project even as on the date of assessment or he has not recorded the findings whether the developer started the construction work at any time during the assessment year under consideration or any development has taken place in the project in the relevant period. He went on to proceed on the sole issue with regard to handing over the possession of the property to the developer in part performance of the Development Agreement-cum-General power of Attorney. In our opinion, the handing over of the possession of the property is only one of the condition u/s 53A of the Transfer of Property Act but it is not the sole and isolated condition. It is necessary to go into whether or not the transferee was 'willing to perform' its obligation under these consent terms. When transferee, by its conduct and by its deeds, demonstrates that it is unwilling to perform its obligations under the agreement in this assessment 10 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani year, the date of agreement ceases to be relevant. In such a situation, it is only the actual performance of transferee's obligations which can give rise to the situation envisaged in Section 53A of the Transfer of Property Act. On these facts, it is not possible to hold that the transferee was willing to perform its obligations in the financial year in which the capital gains are sought to be taxed by the Revenue. We hold that this condition laid down under Section 53A of the Transfer of Property Act was not satisfied in this assessment year. Once we come to the conclusion that the transferee was not 'willing to perform', as stipulated by and within meanings assigned to this expression under Section 53A of the Transfer of Property Act, its contractual obligations in this previous year relevant to the present assessment year, it is only a corollary to this finding that the development agreement dt. 11.5.2005 based on which the impugned taxability of capital gain is imposed by the AO and upheld by the CIT(A), cannot be said to be a "contract of the nature referred to in Section 53A of the Transfer of Property Act"
and, accordingly, provisions of Section 2(47)(v) cannot be invoked on the facts of this case Chaturbhuj Dwarkadas Kapadia v. CIT's case (supra) undoubtedly lays down a proposition which, more often than not, favours the Revenue, but, on the facts of this case, the said judgment supports the case of the assessee inasmuch as 'willingness to perform' has been specifically recognized as one of the essential ingredients to cover a transaction by the scope of Section 53A of the Transfer of Property Act. Revenue does not get any assistance from this judicial precedent. The very foundation of Revenue's case is thus devoid of legally sustainable basis.
50. That is clearly an erroneous assumption, and an the provisions of deemed transfer under Section 2(47)(v) could not have been invoked on the facts of the present case and for the assessment year in dispute before us. In the present case, the situation is that the assessee has received only a 'meager amount' out of total consideration, the transferee is avoiding adhering to the agreement and there is no evidence brought on record by the revenue authorities to show that there was actual construction has been taken place at the impugned property in the assessment year under consideration and also there is no evidence to show that the right to receive the sale consideration was actually accrued to the assessee. Without accrual of the consideration to the assessee, the assessee is not expected to pay capital gains on the entire agreed sales consideration. When 11 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani time is essence of the contract, and the time schedule is not adhered to, it cannot be said that such a contract confers any rights on the vendor/landlord to seek redressal under Section 53A of the Transfer of Property Act. This agreement cannot, therefore, be said to be in the nature of a contract referred to in Section 53A of the Transfer of Property Act. It cannot, therefore, be said that the provisions of Section 2(47)(v) will apply in the situation before us. Considering the facts and circumstances of the present case as discussed above, we are of the considered view that the assessee deserves to succeed on reason that the capital gains could not have been taxed in the in this assessment year in appeal before us. The other grounds raised by the assessees in their appeals have become irrelevant at this point of time as we have held that provisions of section 2(47)(v) will not apply to the assessees in the assessment year under consideration. ...."
12. The coordinate bench again in case of M/s Binjusaria properties (supra) following another decision of same coordinate bench held as under:
"12. It is an undisputed fact that as on date, there was no developmental activity on the land which is subject matter of development agreement. The process of construction has not been even initiated and no approval for the construction of the building is obtained. Thus, the sale consideration in the form of developed area has not been received. Mere receipt of refundable deposit cannot be termed as receipt of consideration. Further, as submitted , the Assessing Officer calculated the capital gain on the entire land, even though the assessee has retained 38% share to itself. The valuation was also disputed. There is, therefore, no accrual of income in favour of the assessee as per S.48 of the Act. Due to lapse on the part of the transferee, the construction has not taken place in the year under consideration, and it has not commenced even now. In the facts and circumstances of the present case, wherein while the assessee has fulfilled its part of the obligation under the development agreement, the developer has not done anything to discharge the obligations cast on it under the develop agreement, the capital gains cannot be brought to tax in the year under appeal, merely on the basis of signing of the development agreement during this year. We are supported in this behalf by the decision of the Tribunal dated 3 rd January, 2014 in the case of Fibars Infratech Pvt. Ltd. (supra), wherein it was held as follows-
59. On these facts, it is not possible to hold that the transferee was willing to perform its obligations in the financial year in which the capital gains are sought to be taxed by the Revenue. We hold that this condition laid 12 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani down under Section 53A of the Transfer of Property Act was not satisfied in this assessment year. Once we come to the conclusion that the transferee's 'willing to perform' the contract is ascertainable in the assessment year, as stipulated by and within the meanings assigned to this expression under Section 53A of the Transfer of Property Act, its contractual obligations in this previous year relevant to the present assessment year, it is only a corollary to this finding that the Development Agreement dt. 15.12.2006, based on which the impugned taxability of capital gain is imposed by the AO and upheld by the CIT(A), cannot be said to be a "contract of the nature referred to in Section 53A of the Transfer of Property Act"
and, accordingly, provisions of Section 2(47)(v) cannot be invoked on the facts of this case. The judgement in the case of Chaturbhuj Dwarkadas Kapadia v. CIT (supra) undoubtedly lays down a proposition which, more often that not, favours the Revenue, but, on the facts of this case, the said judgment supports the case of the assessee inasmuch as 'willingness to perform' has been specifically recognized as one of the essential ingredients to cover a transaction by the scope of Section 53A of the Transfer of Property Act. The Revenue does not get any assistance from this judicial precedent. The very foundation of Revenue's case is thus devoid of legally sustainable basis.
60. That is clearly an erroneous assumption, as the provisions of deemed transfer under Section 2(47)(v) could not have been invoked on the facts of the present case and for the assessment year in dispute before us. In the present case, the situation is that the assessee has not received any consideration, and there is no evidence brought on record by the Revenue authorities to show that there was actual construction taken place at the impugned property in the previous year relevant to the assessment year under consideration and also there is no evidence to show that the right to receive the sale consideration was actually accrued to the assessee. Without accrual of the consideration to the assessee, the assessee is not expected to pay capital gains on the entire agreed sales consideration. When time is essence of the contract, and the time schedule is 30 months to complete construction with additional grace period of 6 months, it cannot be said that such a contract confers any rights on the vendor/landlord to seek redressal under Section 53A of the Transfer of Property Act. This agreement cannot, therefore, be said to be in the nature of a contract referred to in Section 53A of the Transfer of 13 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani Property Act. It cannot, therefore, be said that the provisions of Section 2(47)(v) will apply in the situation before us. Considering the facts and circumstances of the present case as discussed above, we are of the considered view that the assessee deserves to succeed on the reason that the capital gains could not have been taxed in the in this assessment year in appeal before us."
13. In the light of the foregoing discussion, we set aside the impugned orders of the Revenue authorities and hold that the capital gains on the property in question cannot be brought to tax in the year under appeal, and consequently delete the addition made by the Assessing Officer and sustained by the CIT(A). Assessee's grounds on this issue are allowed."
13. On going through the aforesaid decisions of the coordinate bench, the ratio which emerges is unless there is willingness on the part of the developer to perform his part of the contract, there cannot be a 'transfer' of capital asset as envisaged u/s 2(47)(v) read with section 53A of the TP Act. The ratio laid down as above squarely applies to the facts of the present case as the department has failed to controvert the finding of the learned CIT(A) by bringing material on record to show that the developer has taken any steps towards development activity. Further, we may observe, though the AO referring to the development agreement has inferred that possession of the property was handed over to the developer, however, on going through the pleadings and prayer of the plaintiffs in the plaint filed in Civil Court, a copy of which is at page 51 of assessee's paper book, it appears assessee along with others are still having physical possession over the property. Be that as it may, after careful consideration of facts and materials on record, we are of the view, CIT(A)'s order being well founded and well reasoned needs to be upheld. Another crucial aspect which needs to be commented upon is the CIT(A) has also held that the transaction will not attract capital gain as the asset transferred being an agricultural land is not a capital asset as defined u/s 2(14) of the Act. This finding of the learned CIT(A) remains unchallenged and uncontroverted by the Department. For this reason also, short term capital gain computed by the AO cannot be sustained. In view of the aforesaid, we do not find any reason to interfere with the order of the CIT(A).
14. So far as the ground raised by the department challenging the view of CIT(A) to the effect that there cannot be any capital gain in absence of value of consideration received or accrued, we are of the view, the same is not required to be adjudicated 14 ITA No. 100 & 101/Hyd/2014 Smt. N. Sarojini& Smt. R. Venkataramani as it is of mere academic interest in view of our finding that there is no transfer of capital asset by the assessee in the impugned assessment year. Accordingly, we uphold the order of the CIT(A) by dismissing the grounds raised.
15. Before parting we thought it necessary to clarify, the issue whether there is transfer of capital asset under a development agreement, as contemplated u/s 2(47)(v) read with section 53A of the T.P. Act, has to be decided keeping in view the facts involved in each case. Ratio laid down in a particular case cannot be applied uniformly to all cases without considering the factual aspect."
11. As the issue in dispute is similar to that of the case decided by the coordinate bench in case of Bhavya Constructions Pvt. Ltd. and others (supra), respectfully following the decision therein, we do not find any reason to interfere with the finding of the CIT(A) that there is no income to be taxed as capital gains on account of the development agreement. Accordingly, we uphold the order of the CIT(A) and dismiss the grounds raised by the revenue in this regard.
12. In the result, appeal of the department is dismissed.
13. As the facts and grounds are materially identical in ITA No. 101/Hyd/2014 in case of Smt. R. Venkataramani to that of ITA No. 100/Hyd/2014 in case of Smt. N. Sarojini (supra), following the conclusions drawn therein, we uphold the order of the CIT(A) also in this case and dismiss the grounds raised by the revenue.
14. To sum up both the appeals of revenue are dismissed.
Pronounced in the open court on 26 th February, 2015 Sd/- Sd/-
(P.M. JAGTAP) (ASHA VIJAYARAGHAVAN)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Hyderabad, Dated: 26 th February , 2015
15
ITA No. 100 & 101/Hyd/2014
Smt. N. Sarojini& Smt. R. Venkataramani
kv
Copy to:-
.
1. Asst. Commissioner of Income-tax, Central Circle - 5, Hyd, 8 t h Floor, Aayakar Bhavan, L.B. Stadium Road, Basheerbagh, Hyderabad - 500 004.
2. Smt. N. Sarojini, Plot No. 32, Maitri Nagar, Kukatpally, Hyderabad.
3. Smt. R. Venkata Ramani, Plot No. 50, Brindavan Colony, Nizampet Road, Kukatpally, Hyd. - 500 085
3. CIT(A)-VII, Hyderabad
4. CIT (Central), Hyderabad
5. The DR, ITAT, Hyderabad Description Date Intls
1. Draft dictated on Sr.P.S.
2. Draft placed before author Sr.P.S Draft proposed & placed before the AM 3 second Member 4 Draft discussed/approved by second VP Member 5 Approved Draft comes to the Sr.P.S./PS Sr.P.S.
6. Kept for pronouncement on Sr.P S.
7. File sent to the Bench Clerk Sr.P.S. 8 Date on which file goes to the Head Clerk 9 Date of Dispatch of order