JUDGMENT :

(P.S. Dinesh Kumar, J.)

This appeal by the Revenue, directed against the order dated 15.03.2022 in ITA No.1624/BANG/2019 passed by the ITAT (Income Tax Appellate Tribunal), "A" Bench, Bengaluru, has been filed to consider following questions of law:

1. Whether in the facts and circumstances of the case and in law the Tribunal was justified in upholding the order of CIT(A) in deleting addition of Rs. 6,86,27,826/- made under the head of Capital Gains by invoking the provision of Section 2(47) of the IT Act without appreciating the fact that the capital gain for the land owner stands reckoned on the date of JDA since the builder acquires right to start construction on the given property to the extent of ratio as laid in the JDA agreement?

2. Whether the Tribunal's order can be said as perverse in nature in relying on the decisions of the Hon'ble Supreme Court in the case of CIT v. Balbir Sing Maini & Ors reported in (2017) 398 ITR 531 (SC) and Hon'ble ITAT's decision in the case of Dr. Krishna Prasad Mikkilineni v. DCIT (ITA No.929/bang/2018 dt:31.01.2022) considering the transfer has not been taken place during the year under consideration which is distinguishable to the present case and ignoring the materials brought on record in assessment order?

2. Heard Shri K.V.Aravind, learned Senior Standing Counsel for the appellant-Revenue and Shri Annamalai, learned advocate for the respondent-Assessee.

3. At the outset, Shri S.Annamalai, submitted that the issue involved in this appeal is covered by the decision of this Court in Mrs. Margrit Goverdhan v. Income Tax Officer ITA No.328/2018 & connected cases .

4. Shri Aravaind, learned Senior Standing Counsel for the Revenue, refuting the submission of Shri Annamalai submitted that the facts are slightly different in this case and therefore, the issue is not covered by the said decision.

5. Brief facts of the case are, assessee entered into a JDA (Joint Development Agreement) dated April 3, 2013 with M/s Assetz Whitefield Homes Pvt.Ltd. for development of its property in Survey Nos.167/1 to 167/4 and other survey numbers, in all measuring 22 acres 23 guntas. As per the agreement, developer's share was determined at 70% and that of owner at 30%.

6. For the A.Y. 2014-15, the A.O (Assessing Officer) has held that as per the JDA, the transaction attracted Section 2(47) of the I.T.Act INCOME TAX ACT , 19614202 Taxmann 531 KAR and that the facts of the case are covered by the decision in CIT v. Dr. T. K.Dayalu 202 Taxmann 531 KAR and added capital gains of Rs.6,10,73,524/-.

7. The CIT(A) (Commissioner of Income Tax (Appeals)) has partly allowed the appeal and held that assessee is not liable to pay capital gains tax for A.Y.2014-15.

8. The ITAT (Income Tax Appellate Tribunal) has concurred with the view taken by the CIT(A). Hence, this appeal.

9. Shri Aravind's principal contention is that as per Clause 13.1 of the JDA, the owner of the land has simultaneously agreed to execute a power of attorney to do all acts and deeds in relation to rights, obligations and entitlements under the agreement as contemplated in the power of attorney. Therefore, according to him, once the power of attorney is executed, transfer of title takes place. According to him, as per clause 13.2, power of attorney empowers the developer to execute agreement to sell, construction agreements and sale deeds with prospective purchasers. In substance, Revenue's contention is that terms contained in Clauses 13.1 & 13.2 permits sale of units by the developer and therefore, facts of this case are not similar