JUDGMENT

(Judgment of the Court was delivered by R. MAHADEVAN, J.)

This tax case appeal has been filed by the appellant / Revenue, challenging the order dated 01.03.2018 passed by the Income Tax Appellate Tribunal, 'A'

Bench, Chennai, in I.T.A.No.1757/CHNY/2017, relating to the assessment year

2014-15, by raising the following substantial questions of law:-

“(i) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in directing the Assessing Officer to tax Long Term Captital Gain in the assessement year 2007-08 as against Assessement year 2014-15, when the assessee herself find the return of income admitting Long Term Capital Gain in that year?

(ii) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was right in holding that the transfer of property had taken place in the financial year 2006-07 relevant to the assessment year 2007-08 since Joint Development Agreement was entered in 27.06.2006, when the assessee herself mentioned in para 7.3 of the Joint Development Agreement shall not be entitled to create any possessory right over the said lands, which could be construed as transfer of the property within the meaning of the Income Tax Act?

(iii) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in holding that the transfer of property had taken place in the financial year 2006-07 relevant to the assessment year 2007-08 when the developer had acted only as exclusive licensee to carry out construction and not as a transferee, (as per para 7.2 of JDA), as observed by Hon'ble ITAT in the case of Vijaya Productions P. Ltd vs ACIT (2012) 134 ITD

19?

(iv) Whether the Hon'ble ITAT was right in not appreciating the fact that to qualify “Transfer” of a capital asset u/s 2 (47)(v) of the Act, there must be a contract which can be taken cognisance of for the purpose of specififed sec. 53A of Transfer of Property Act, after amendment of Indian Registration Act, 2011, unless the said contract is registered, as observed by the Hon'ble Supreme Court of India in the case of Commissioner of Income tax vs Balbir Singh Mainin in Civil Appeal No. 15619 of 2017?

(v) Whether Hon'ble ITAT was right to conclude that the transfer of property had taken place in the financial year 2006-07 relevant to assessment year 2007-08 when the Development Agreement is not indicating that the passing of transferring of complete control over the property in favour of the Developer, as observed by the Hon'ble High Court of Bombay in the case of Chaturbuj Dwarakadas Kapadia of Bombay vs CIT (2003)-206 ITR 491)?”

2. When the matter was taken up for consideration, the learned counsel for the appellant / Revenue brought to the notice of this court the Circular No.17/2019 dated 08.08.2019 issued by the Central Board Direct Taxes, wherein, it is stipulated that appeals shall not be filed/pursued by the Department before the High Court in cases where the tax effect does not exceed Rs.1,00,00,000/- (Rupees One Crore). It is also submitted that the tax effect in this appeal is less than the threshold limit.

3. In the light of the aforesaid submissions made by the learned counsel for the appellant / Revenue, the present appeal, wherein, the tax effect is said to be less than the monetary limit imposed, is dismissed as withdrawn, keeping open the substantial questions of law for determination in an appropriate case. No costs.

[R.M.D,J.] [M.S.Q, J.]

17.12.2021 Internet : Yes Index : Yes / No dhk To

1. The Income Tax Appellate Tribunal, Madras “A” Bench.

2. The Principal Commissioner of Income Tax International Taxation – 2 (1)

Chennai - 600 034 R. MAHADEVAN, J.

AND MOHAMMED SHAFFIQ, J.

dhk Tax Case Appeal No. 593 of 2021

17.12.2021