The central legal point established in the judgment is the applicability and interpretation of Section 2(47)(ii), (v), (vi) of the Income Tax Act and Section 53A of the Transfer of Property Act 1882 in the context of land transfer through a Joint Development Agreement.

Ajay Kumar Mittal, J.

1. This appeal has been preferred by the appellant-revenue under Section 260A of the Income Tax Act, 1961 which (in short, “the Act”) against the order dated 28.06.2016, Annexure A.3, passed by the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar (in short, “the Tribunal”) in ITA No. 393(ASR)/2015, claiming following substantial questions of law:-

(i) “Whether on the facts and circumstances of the case, the Hon’ble ITAT was justified in deleting the addition made by AO relying upon the decision of Hon’ble High Court in the case of C.S. Atwal Vs. CIT in ITA No. 200 of 2013, when SLP has been filed by the department in the case?

(ii) Whether on the facts and circumstances of the case and in law, the Hon’ble ITAT erred in relying upon the order of Hon’ble High Court and was justified in holding that the transfer of land by members of a Cooperative Society by signing an irremovable Power of Attorney in the name of the Developer and also by signing a Joint Development Agreement (JDA) would constitute ‘transfer’ within the meaning of section 2(47)(ii) of the Income Tax Act, 1961(the Act) read with Clause (v) and Clause (vi) of the said section so as to attract Capital Gain within the meaning of section 45 read with section 48 of the Act?

(iii) Whether on the facts and circumstances of the case and in law, the Hon’ble ITAT erred in relying upon the order of Hon’ble High Court and was justified in holding that no possession had been given by the transferor to the transferee of the entire land in part-performance of Joint Development Agreement dated 25.02.2007 so as to fall within the scope of Section 53A of the Transfer of Property Act 1882 ignoring the fact that the combined reading of the clauses of the duly registered irrevocable Special Power of Attorney and the JDA would clearly show that the developer was handed over possession of the property whereby the assessee was authorized to enter upon the property not only for the purposes of development but other purposes also, including mortgage and sale of that property?

(iv) Whether on the facts and in the circumstances of the case and in law, the Hon’ble ITAT erred in relying upon the order of Hon’ble High Court and was justified in holding that in the absence of registration of JDA dated 25.02.2007 having been executed after 24.09.2001, the agreement does not fall under Section 53A of the Transfer of Property Act, 1882 and consequently, section 2(47)(v) of the Income Tax Act, 1961 does not apply to the present case, failing to appreciate the fact that this requirement of registration cannot be read into clause (v) of Section 2(47) of the Income Tax Act, 1961 because the said provision refers only to the contract of the nature of section 53A of the T.P. Act without going into the controversy whether or not such agreement is required to be registered?

(v) Whether on the facts and in the circumstances of the case and in law, the Hon’ble ITAT erred in relying upon the order of Hon’ble High Court and was justified in holding that the Society has transferred the land through JDA on a pro-rata basis, and that only the money received against which sale deeds have also been executed could be taxed and the money to be received later cannot be presently taxed ignoring the fact that as per section 45 read with Section 48 of the Income Tax Act, in case of capital gain, the tax has to be paid on the total consideration arising on transfer which include the consideration which has been received as well as consideration which has arisen and became due and may be received later on?

(vi) Whether on the facts and in the circumstances of the case and in law, the Hon’ble ITAT erred in relying upon the order of Hon’ble High Court and was justified in concluding that the assessee has already terminated the agreement and has revoked the irrevocable Power of Attorney, ignoring the vital fact that the said irrevocable Power of Attorney could not be revoked for any reasons wit