Anil Vitthal Bankar, Pune V. Income-tax Officer, Ward - 6(2), Pune

CO 7/PUN/2020

AI Insights

The case involves appeals by the Income Tax Department against the decisions of the Commissioner of Income Tax (Appeals) which had favored the assessee, Anil Vitthal Bankar and Rahul Waman Bankar, in not taxing the capital gains from a Joint Development Agreement (JDA) for the assessment year 2009-10. The Tribunal examined whether there was a transfer of property rights under the JDA and the accompanying Irrevocable General Power of Attorney, which allowed the developer, M/s.Navratna Properties, to undertake various actions including the sale and development of the property. The Tribunal found that the rights were indeed transferred, leading to a liability for capital gains tax, and directed a recalculation of the tax considering the indexed cost of acquisition.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 134330 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-01-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 09-11-2020
• Other Referred Cases: Chaturbhuj Dwarkadas Kapadia Vs CIT, Punjabi Co-op Housing Society Vs CIT & Anr., C S Atwal Vs CIT, T V Sundaram Iyengar & Sons Vs CIT, Jasbir Singh Sarkaria Vs AAR, Sumeru Soft (P) Ltd Vs ITO, Chandra Prakash Jain Vs Asst. CIT (Inv.), CIT & Anr. Vs T K Dayalu, Asst. CIT Central Circle- 6, Hyderabad Vs A. Ram Reddy, Sukhdev Singh Vs Income Tax Officer, ITO 21(1)(2), Mumbai Vs Ms. Indira R. Shete, Hussan Lai Puri Vs ITO, Ward 6(1) Mohali, Ravindra Singh Arora Vs Asst. Commissioner of Income Tax Circle10(1), Hyderabad, Smt. Binder Khoker Vs Asst. CIT Circle5(1), Chandigarh, Sanjeev Lal Vs. CIT, Sushil Kumar Agarwal Vs. Meenakshi Sadhu, Jaico Automobile Engineering Company (P.) Ltd. Vs. DCIT, Balbir Singh Maini Vs. CIT, Alapati Venkataramiah Vs. CIT, B Gangadhar Vs BG Rajalingam, Swadesh Ranjan Sinha Vs Haradeb Banerjee, Dr. T.K. Dayalu Vs. CIT, CIT & Anr. Vs T K Dayalu, Asst. CIT Central Circle- 6, Hyderabad Vs A. Ram Reddy, Sukhdev Singh Vs Income Tax Officer, ITO 21(1)(2), Mumbai Vs Ms. Indira R. Shete, Hussan Lai Puri Vs ITO, Ward 6(1) Mohali, Ravindra Singh Arora Vs Asst. Commissioner of Income Tax Circle10(1), Hyderabad, Smt. Binder Khoker Vs Asst. CIT Circle5(1), Chandigarh
• Laws Referred To: Income Tax Act, 1961, Transfer of Property Act, 1882, Indian Contract Act, 1872
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset converted into stock in trade; Capital asset; Gift; Business income; Cost of acquisition; Fair market value; Capital Gains
• Section: 148; 45(2); 192; 48; 13; 22

Judgement Text

आयकर अपीलीय अिधकरण “बी” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “B” :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.67/PUN/2018 Cross Objection No.07/PUN/2020 िनधाᭅरण वषᭅ / Assessment Year : 2009-10 The Income Tax Officer, Ward-6(2), Pune. Vs Shri Anil VitthalBankar, Flat No.1/3/8, Rajyog Housing Society, Sinhgad Road, Pune – 411041. PAN: AASPB 7987 K Appellant/ Revenue Respondent /Assessee आयकर अपील सं. / ITA No.1579/PUN/2018 Cross Objection No.40 /PUN/2022 िनधाᭅरण वषᭅ / Assessment Year : 2009-10 The Income Tax Officer, Ward-6(4), Pune. Vs Rahul Waman Bankar, General Repair Works, 502, Ghorpade Peth, Shivaji Road, Pune – 411042. PAN: AGAPB 7130 N Appellant/ Revenue Respondent / Assessee Assessee by Shri M.K.Kulkarani& Shri D.R.Barve – AR’s Revenue by Shri M.G.Jasnani – DR Date of hearing 20/01/2023 Date of pronouncement 02/02/2023 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: These Appeals & Cross Objections filed by the Revenue and Assessee respectively are directed against the separate orders of ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 2 ld.Commissioner of Income Tax(Appeals)-4 & 13, Pune dated 10.07.2017 & 26.07.2018 respectively ,emanating from order of Assessing Officer dated 29.12.2016 & 27.12.2016 under section 143(3) r.w.s 147 of the I.T.Act, 1961 in ITA No.67/PUN/2018 & ITA No.1579/PUN/2018 respectively; both the appeals are for A.Y.2009-10.These appeals and Cross Objections were heard together and decided by common order as the issue involved is same in both the quantum appeals. Therefore, for the sake of convenience we take the appeal in ITA No.67/PUN/2018 as the “lead” case. The Revenue has raised the following grounds of appeal: “1. On the facts and circumstances of the case and in law the Ld. CIT(A) is erred in holding that there was no transfer during the current assessment year despite the facts that assessee by entering into registered Joint Venture Development Agreement with the Builder has given possession of the property to the Developer and has thus there is transfer attracting capital gain tax as per the provisions of sec. 2(47) of the Income Tax Act, 1961 r.w.s 53A of the Transfer of Property Act, 1882. 2. On the facts and circumstance of the case and in law the Ld CIT(A) is erred in holding that there was no transfer during the current assessment year as per the provisions of sec. 2(47) of the Income Tax Act, 1961 r.w.s 53A of the Transfer of Property Act, 1882 relying on the decision of Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia Vs CIT (BOM) 260 ITR 491, whereas the said decision is in favour of revenue, wherein the Hon’ble Bombay High Court is held that the date relevant for ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 3 attracting capital gain having regards to definition u/s 2(47) of the Act is the date on which the possession of property in question is handed over by the assessee to the builder. 3. On the facts and circumstance of the case and in law the Ld CIT(A) is erred in holding that there was no transfer during the current assessment year as per the provisions of sec. 2(47) of the Income Tax Act, 1961 r.w.s 53A of the Transfer of Property Act, 1882 relying on decision of Punjabi Co-op Housing Society Vs CIT & Anr. (2016) 72(l) ITCL 69 (P&H), which has been delivered by following the decision in the case of C S Atwal (2015) 378 ITR 244 (P&H). The facts of the case law i.e. C S Atwal (supra) is relates to unregistered agreement, whereas the Joint Development Agreement entered by the assessee with the developer is a registered agreement. 4. The Ld. CIT (A) failed to consider the facts that that capital gain tax attracted the moment the assessee has acquired the right to receive the profits and it is not necessary that assessee should actually received the profits as held in the case of T V Sundaram Iyengar & Sons Vs CIT (Madras) 37 ITR 26. 5. The Ld. CIT(A) failed to considered the facts that where assessee entered into a joint venture / development agreement of land owned by him in terms of which he received certain cash and a part of constructed area, it was a case of transfer as per the provisions of section 2(47)(v) and gain resulting from such transfer is taxable in the year in which the said development agreement was executed ( receipt of consideration no material) as decided in the cases of (i) Jasbir Singh Sarkaria (AAR) (2007) 294 ITR 196, (ii) Sumeru Soft (P) Ltd Vs ITO (Chennai Trib) 165 ITD 48 / 82 taxmann.com 5, (iii) Chandra Prakash Jain Vs Asst. CIT (Inv.) ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 4 Circle 46 taxmann.com 268 (Allahabad), (iv) CIT &Anr. Vs T K Dayalu (Karnataka HC) 60 DTR 403. (v) Asst. CIT Central Circle- 6, Hyderabad Vs A. Ram Reddy [2012] 23 taxmann.com 59 (Hyd.), (vi) Sukhdev Singh Vs Income Tax Officer , Ward 6(3), Mohali, [2013] 38 taxmann.com 156 (Chandigarh-Trib), (vii) ITO 21(1)(2), Mumbai Vs Ms. Indira R. Shete [2012] 25 Taxmann.com 511 (Mum.), (viii) Hussan Lai Puri Vs ITO, Ward 6(1) Mohali [2013] 38 taxmann.com7 (Chandigarh-Trib), (ix) Ravindra Singh Arora Vs Asst. Commissioner of Income Tax Circle10(1), Hyderabad [2012] 24 taxmann.com 346 (Hyd.) & (x) Smt. Binder Khoker Vs Asst. CIT Circle5(1), Chandigarh Q2013] 36 taxmann.com 503 (Chandigarh - Trib.). 6. For this and such other reasons as may be urged at the time of hearing, the order of the CIT(A) may be vacated and that of the Assessing Officer be restored. 7. The appellant craves leave to add, alter or delete any of the aboveground of appeal during the course of appellate proceedings before the Hon’ble Tribunal.” Brief facts : 2. Brief facts of the case are that the assessee Anil Bankar&15 other individuals had entered into registered Joint Venture Agreement(JDA) on 28.04.2008 with M/s.Navratna Properties a partnership firm through its partner Pravin Chajed and Goraknath Pawar for the land at Survey No.50, Hissa No.10 + 11/01 and Survey No.50,Hissa Number 10+11/2/1 situated at Hadapsar, Pune. The said ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 5 Joint Venture Agreement was duly registered in the office of Sub- Registrar, Haveli, Pune on 28.04.2008 vide Document No.3931. The Assessing Officer (AO) received information regarding the said joint development agreement from Investigation Wing of the Income Tax Department. The AO issued noticed under section 148 after recording the reasons. The assessee submitted before the AO that the return filed on 28.07.2009 may be treated as return in response to notice under section 148. The assessee had not shown any capital gain in the return filed for A.Y. 2009-10 on 28.07.2009. Subsequently, the AO issued various notices. Assessee himself appeared. The AO passed the assessment order on 29.12.2016. The AO held that the assessee had transferred the impugned land by entering into Joint development agreement with M/s.Navratna Properties on 28.04.2008 and hence assessee is liable for long term capital gain tax, accordingly, the AO calculated long term capital gain tax in the assessment order. The assessee filed appeal before the ld.CIT(A). The ld.CIT(A) held that assessee had given only the license to the developer for entering into the land and hence it is not a transfer. Thus, the ld.CIT(A) allowed the appeal of the assessee. Aggrieved by the order of the ld.CIT(A), the Revenue filed appeal before this Tribunal and Assessee filed Cross Objections. ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 6 Submission of the Ld. DR: 3. The Ld.DR relied on the order of the AO. The Ld.DR read out extensively from the JDA and Irrevocable power of attorney to demonstrate that there was transfer. Ld.DR relied on the following case laws:  Hon’ble Bombay High Court in Chaturbhuj Dwarkadas Kapadia Vs CIT (BOM) 260 ITR 491.  Punjabi Co-op Housing Society Vs. CIT &Anr. (2016) 72(I) ITCL 69 (P & H)  C S Atwal [2015] 378 ITR 244 (P & H)  T V Sundaram Iyengar & Sons Vs. CIT (Madras) 37 ITR 26.  (i) Jasbir Singh Sarkaria (AAR) (2007) 294 ITR 196, (ii) Sumeru Soft (P) Ltd Vs ITO (Chennai Trib) 165 ITD 48 / 82 taxmann.com 5, (iii) Chandra Prakash Jain Vs Asst. CIT (Inv.) Circle 46 taxmann.com 268 (Allahabad), (iv) CIT &Anr. Vs T K Dayalu (Karnataka HC) 60 DTR 403. (v) Asst. CIT Central Circel- 6, Hyderabad Vs A. Ram Reddy [2012] 23 taxmann.com 59 (Hyd.), (vi) Sukhdev Singh Vs Income Tax Officer , Ward 6(3), Mohali, [2013] 38 taxmann.com 156 (Chandigarh-Trib), (vii) ITO 21(1)(2), Mumbai Vs Ms. Indira R. Shete [2012] 25 Taxmann.com 511 (Mum.), (viii) Hussan Lai Puri Vs ITO, Ward 6(1) Mohali [2013] 38 taxmann.com7 (Chandigarh-Trib), (ix) Ravindra Singh Arora Vs Asst. Commissioner of Income Tax Circle10(1), Hyderabad [2012] 24 taxmann.com 346 (Hyd.) & (x) Smt. ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 7 Binder Khoker Vs Asst. CIT Circle5(1), Chandigarh Q2013] 36 taxmann.com 503 (Chandigarh - Trib.). Submission of the ld. AR: 4. The ld.Authorised Representative(ld.AR) for the Assessee submitted as under: “This is Joint Venture Agreement executed by and between parties that is to say "Developer" and member of Hindu Undivided Family of Shri Anil Bankar (Karta of HUF) and other 8 members of the family. Shri Anil Bankar and other 8 members have joined this Joint Venture Agreement as Party No. 2. The immovable properties mentioned as open land. The properties were subject matter of Agreement after conversion the subject lands into "Non- Agricultural lands" and Stock-in-Trade" as per S. 45(2) of the Act. The converted property into stock-in-trade attracts" "Capital gain" considering the cost of acquisition as FMV prevailing on the date of conversion and after that the business income in the year of Sale of Property and Capital gain and business income in the year of the sale of property. Undisputedly neither Capital gain becomes taxable in the year of assessment pertaining to A.Y. 2009-10 nor business income also is taxable for want of Sale of property. The provisions of S. 45(2) of the Income-tax Act are applicable to such transactions but cannot be implemented to tax any Capital Gain as Capital Gain computation proceedings fast. In para 2 of the Joint Venture Agreement the mention is made that Party No. 1 and 2 of the Joint Venture Agreement are not partners interse neither members of AOP but joint Venture Agreement is executed as per Indian Contract Act, 1872. It is also mentioned the party No. 1 has joined the Agreement just to earn profits by implementing construction Scheme on the land owned by parties ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 8 No. 2 have joined for limited purpose on principal to principal basis. It is also a condition incorporated in the Agreement the Joint Venture Agreement will come to an end on completion of the construction scheme, and the amount that will fetch from Sales, and accounts are settled and all rights; and constructed premises are transferred to Society or Appartment then only Joint Venture come TO AN END. Since Agreement itself n=midway has been cancelled there is no scope to transfer the constructed area and the Agreement of Joint venture and the said Agreement has automatically lost its existence from 28-04-2008 itself. This is a condition in the Agreement by which the same will not continue any more. The most obvious example of an agreement without consideration is a purely gratuitous promise given and accepted. Such a promise has no legal force. It is also clear that the Agreement does not mention any specific consideration but mentions only vaguely as 15% Revenue sharing inclusive value of the property Land cost plus profits but in view of the cancellation of Agreement the same is also not possible. This means there is automatic clause for non- continuance of the agreement. These clauses are available in agreement from 28-04-2008 that is since so to say from commencement only. There is no clause in the agreement to dispenses with the condition of "Consideration". The agreement made without consideration is void under section 25 of the Indian Contract Act, 1872. Basics of Real Estate Joint Venture. There are two sides to a Joint Venture Agreement in real Estate, the operating Member and the Capital Member. The operating party is ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 9 a Party that acquires or developers the property and Capital Member provides the money. One of them is a capital member and other is operating member. In the instant case the Operating Member and Capital Members are the same. Those can be viewed as the operating member provides the brains or expertise in real estate management and capital member provides the brawn, or money. The party No. 1 herein is combined in both "brain" and "brawn" but it fails. There was no joint development agreement. POWER OF ATTORNEY Power of Attorney holder-Registered - only gives power to the Attorney to take various steps in respect of the matters. That by itself did not mean that all rights in respect of the said subject matter had been transferred in favour of the constitute Attorney. Antonio Shunit Jogo vs. Revisional Authority, Ministry of Mines, AIR 2012 Bom 170 (Goa Bench).” Findings and Decision : 5. We have heard both the parties and perused the records. The issue to be decided by us is whether there was any transfer of land within the meaning of section 2(47) of Income Tax Act1961.In this case it is an admitted fact that the assessee had entered into the impugned registered Joint Venture Agreement with M/s.Navratna Properties, (a partnership firm through its partners Pravin Chajed and Goraknath Pawar) on 28.04.2008 for the impugned land in Survey No.50, Hissa No.10+11/1and Survey No.50, Hissa Number 10+11/2/1, Hadpsar, Pune. And that the assessee has given ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 10 Irrevocable General Power of Attorney (GPA) to the developer M/s.Navratna Properties through its partner Mr.Pravin Chajed and Goraknath Pawar. The said Irrevocable General Power of Attorney was duly registered on 28.04.2008. Thus, both the Joint Venture Agreement and the Irrevocable General Power of Attorney were registered at the same time. Therefore, in order to understand the nature of transaction, one needs to read the Irrevocable General Power of attorney and the joint venture agreement together. It is mentioned in the order of ld.CIT(A) that NA Permission was obtained on 20/12/2013, however, application for sanction of Plan was made on 30/08/2013, i.e. before the NA permission. However, the assessee has not filed any document to prove the NA permission date or Sanction of building plan. 5.1. The irrevocable general power of attorney is in Marathi Language. Clause 5 of the said Irrevocable General Power of Attorney lays down the Rights given to the Developer M/s.Navratna Properties. There are 36 clauses numbered 1to 36 under Clause-5. The relevant clauses of the Irrevocable General Power of Attorney are reproduced here as under: “Clause 22 – this general power of attorney is given as per joint venture agreement and it cannot be cancelled under any circumstances. ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 11 Clauses mentioned under Clause 5 which gave Rights to Developer are as under: Clause 3 - To prepare layouts plan, Bungalow Scheme prepare drawings get approved from the authorities submit deposits etc., to pay premium. Clause 5- to transfer the said constructed units in any stage of construction as per the conditions of the agreement and after completion of the said construction , get executed all such deed of assignments , purchase deeds, etc. to receive the amounts. Clause 4 - To mortgage part of the constructed area to any bank or financial institutions for obtaining loan. To register the said loan document with authorities. Clause 6 - To obtain N.A. Permission from Collector. Clause 8 - To obtain floating FSI from Municipal Authorities and use it wherever appropriate as per law. To make the necessary payments for floating FSI. To sale the TDR to third party. To make necessary documentation for sale of TDR. Clause 10 -Shri. Anil Vitthal Bankar, the party herein has given the necessary rights and powers to receive any compensation from Government in future against the land to M/s Navratna Properties, if paid to Anil Vitthal Bankar by any mistake then Anil Vitthal banker is to return the same by cheque in favour of M/s Navratna Properties. ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 12 Clause 14 - To sale the constructed residential units, shops, godowns, row houses, plots etc., and to obtain necessary permission from Government for the said sale. To enter into sale deed, lease deed etc., with third party for the flats, shops, godowns, offices, parking space, row houses, bungalow etc., likely to be constructed on the said land. Clause 32 - Vide this power of attorney the land owner has given unlimited powers and rights regarding the land to the developer. The rights of the developer shall not be curtailed by interpretation by anyone. (emphasis supplied) 6. Relevant Clauses of the Joint Venture Agreement are as under : Party Number 1 is Developer M/s.Navratna Properties and Party number 2 is owner of land Clause 7- By this Joint Venture Agreement the party number 2 herein or interalia with any other form of Agreement agreed to assign the rights in favour of Party number 1 ..... Clause 8-“The conditions settled between Party No. 1 and 2 in this joint venture as under: (1) Party No. 2 herein with the intention to develop "the said property" also according to requirement to make available the TDR, FSI, Floating FSI and to authorize party No. 1 herein to develop the 'said property' for construction and sale thereof ownership basis the residential houses/flats, commercial, offices, to proposed buyers or by any other mode to transfer the constructed residential commercial/flats also on ownership to prospective buyers, to accept the consideration in lieu of such sale, ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 13 registration of Dees, and all other rights concerning such activities have been got vested with party No. 1 herein. The party No. 1 also is responsible for obtaining the sanctioned plans from Pune Municipal Corporation Collectorate and Town Planning Department, to obtain the commencement certificates, to commence construction, to complete the same and agreed above to sale the construction to the prospective buyers etc. The party No. 1 is to successfully implement the construction scheme and to complete the same in all respects. (2) The party No. 1 and 2 have not joined in this scheme as partners or members of AOP. The said Joint Venture Agreement has been executed under the provisions of Indian Contract Act 1872. The purpose of this Agreement is for limited purpose to the extent that the party No. 1 is to implement the scheme of Construction on the 'said property/ to owned by the party No. 2 and to earn profits. The party No. 1 and 2 have joined this arrangement on principal to principal basis. This Joint Venture will come to end after the entire scheme is implemented/completed also after distribution of sale consideration received also on closing of the entire accounts and also after execution of the transfer document in favour of the society with all rights thereto. (3) The party No. 1 & 2 herein are duty bound to complete their part meaning thereby the party No. 2 herein is to make available "the said property" for Construction and thereafter the party No. 1 herein is to develop "the said land" and construct thereon as per ownership scheme. The Party No. 2 will not be responsible for any other work except to bring "the said property" and is also not responsible for any development expenditure. The Revenue sharing between the parties is settled as under: ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 14 Party No. 1 70% This includes all expenditure towards development and Construction the profit after Sale plus taxes. Party No. 2 30% From out of party No. 2 Sr.No.2 the branch of Shri Rahul Waman Bankar is to get 15% and also Sr. No. 8 Shri Anil Vitthal Bankar 15%. It includes the value of the "said Land" Land cost, plus profit plus taxes. Accordingly, the 70% of the gross sales proceeds would go to party No. 1 herein and the balance of 30% revenue share would go to the party No. 2 herein (Both the branches together)........... Clause 6 - The compliance to be from the side of the party No.1 herein. (C) All rights are with the party No.1 herein such as construction, development, Advertisement, sale etc. (D) The project is essentially of construction of residential houses/flats, commercial units, offices units etc. The necessary documents Agreements etc required to be executed with the prospective buyers will be so got executed by party No.1 herein, and also to get registered with the proper authorities. (G) To conduct of sales of constructed residential houses/flats, offices, commercial units and to get executed the necessary agreements/bonds etc and to accept the consideration from the customers and to issue the acknowledgment for the same. And to establish the Appartments/Association of the Unit Holders. ....” ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 15 7. A combined analysis of these two documents explains that the Irrevocable General Power of Attorney has been executed as per the terms incorporated in the Joint Venture Agreement. The said later deed had transferred the Possession of the impugned land as License and as ‘Open Possession’ to the Developer, as seen in the Scanned Para above. Thus, in this case the possession of the impugned property has been transferred as ‘Open Possession’ to the developer Navratna Properties and not merely as License. 7.1 The Assessee has also transferred the future right to receive any compensation from Government to the Developer Navratna Properties. 7.2 The assessee has transferred the right to Mortgage the impugned land to the Developer Navratna Properties. The assessee has transferred Right to Sale the constructed area to the Developer Navrtana Properties. ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 16 7.3 Thus, the assessee through the Joint Venture Agreement has transferred Bundle of Rights to the developer Navratna Properties. 8. The Developer has completed construction of Building A, B and obtained completion certificate from Municipal Authority. As per the submission 174 flats have been constructed and many have been sold. The Developer has given 30% of Sale Price of 90 flats to assessee as per the Joint Development Agreement. Construction is pending on remaining part of the impugned land. 9. The Hon’ble SC in the case of Sanjeev Lal Vs. CIT, Civil Appeal Nos.5899-5900 of 2014, has observed as under : “Relevant portion of Section 2(47), defining the word “transfer” is as under: “2(47) “transfer”, in relation to a capital asset, includes,- (i)................ (ii) the extinguishment of any rights therein; or ....................................” Now in the light of definitionof “transfer” as defined under Section 2(47) of the Act, it is clear that when any right in respect of any capital asset is extinguished and that right is transferred to someone, it would amount to transfer of a capital asset.” ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 17 10. Thus, as per the definition of the word transfer given in the Section 2(47) of the Act, extinguishment of any Right in any capital asset when those rights are transferred to someone, results in transfer for the purpose of Section 2(47) of the Act. The Hon’ble SC has also observed that when any right in respect of any capital asset is extinguished and that right is transferred to someone, it would amount to transfer of a capital asset. 11. In this case the assessee has transferred Bundle of Rights as discussed in earlier para to the Developer Navratna Properties. The Navratna Properties i.e.Developer has got right to Mortgage the impugned property and obtain loan, right to sale the constructed area, right to execute agreement with proposed buyers of the flats, rights to apply for the Sanction of plan , right to get additional FSI/TDR, Right over the compensation which may be received from Government, etc. All these Rights are important rights which have been transferred by the assessee to the developer. The Developer has Right to sale the constructed area. The Assessee has given ‘Open Possession’ of the impugned property to the developer. Accordingly, the developer Navratna Properties completed construction of two buildings, obtained completion certificate for two buildings and also given 30% of sale value to assessee of 90 flats. Thus, the assessee has extinguished his Bundle of Rights in the impugned land and ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 18 transferred to the developer and the developer has acted on it.The transfer of Rights is irrevocable as mentioned in the Irrevocable General Power of Attorney. In practical there are hardly any rights left with the assessee i.e. land owners with respect to the impugned land. Therefore, there is transfer as per Section 2(47)(ii) as the assessee has extinguished his Bundle of Rights in the land. 12. The Hon’ble Supreme Court had discussed Development Agreement in the case of Sushil Kumar Agarwal Vs. Meenakshi Sadhu order dated 9 th October, 2018 Civil Appeal No. 1129 OF 2012. The Hon’ble SC has observed as under : Quote, “ 17. In a construction contract, the contractor has no interest in either the land or the construction carried out on the land. But, in other species of development agreements, the developer may have acquired a valuable right either in the property or the constructed area. There are various incidents of ownership of in respect of an immovable property. Primarily, ownership imports the right of exclusive possession and the enjoyment of the thing owned. The owner in possession of the thing has the right to exclude all others from its possession and enjoyment. The right to ownership of a property carries with it the right to its enjoyment, right to its access and to other beneficial enjoyments incidental to it. (B Gangadhar v BG Rajalingam13). Ownership denotes the relationship 13 (1995) 5 SCC 239 at para 6 between a person and an object forming the subject matter of the ownership. It consists of a complex of rights, all of which are rights in rem, being good against the world and not merely against specific persons. There ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 19 are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. (Swadesh Ranjan Sinha v Haradeb Banerjee14). An essential incident of ownership of land is the right to exploit the development, potential to construct and to deal with the constructed area. In some situations, under a development agreement, an owner may part with such rights to a developer. This in is essence is a parting of some of the incidents of ownership of the immovable property. There could be situations where pursuant to the grant of such rights, the developer has incurred a substantial investment, altered the state of the property and even created third party rights in the property or the construction carried out to be carried out. There could be situations where it is the developer who by his efforts has rendered a property developable by taking steps in law. In development agreements of this nature, where an interest is created in the land or in the development in favour of the developer, it may be difficult to hold that the agreement is not capable of being specifically performed. For example, the developer may have evicted or settled with occupants, got land which was agricultural converted into non-agricultural use, carried out a partial development of the property and pursuant to the rights conferred under the agreement, created third party rights in favour of flat 14 (1991) 4 SCC 572 purchasers in the proposed building. In such a situation, if for no fault of the developer, the owner seeks to resile from the agreement and terminates the development agreement, it may be difficult to hold that the developer is not entitled to enforce his rights. This of course is dependent on the terms of the agreement in each case. ” Unquote. ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 20 13. Let us try to understand the facts of this case in the light of Hon’ble SC’s observation in the case of Sushil Kumar Agarwal vs Meenakshi Sadhu (supra). In this case, the assessee has not merely given License but given “Open Possession” to the developer as per clause ‘S’ of JDA page 47 of paper book. The Land owners have alienated their Right to develop the impugned property to the Developer along with Right to sale the constructed area and other rights. The Land owners have alienated Bundle of Rights to the developer. The Developer has got NA permission, carried out construction. Conjoint reading of the JDA and Irrevocable Power of Attorney explains that the developer has “Right of Specific Performance” as envisaged in the Section 53A of the Transfer of Property Act as explained by Hon’ble Supreme Court in the case of Sushil Kumar Agarwal vs Meenakshi Sadhu (supra). Therefore, it is a transfer as defined in Section 2(47)(v) of the Act also. Hence, assessee is liable to pay capital gain tax. 14. The Hon’ble Jurisdictional High Court in the case of Chaturbhuj Dwarkadas Kapadia Vs. CIT (2003) 260 ITR 491(Bom) has held as under: Quote, “In this case, the agreement is a Development Agreement and in our view, the test to be applied to decide the year of chargeability is the year in which the transaction was entered into. ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 21 We have taken this view for the reason that Development Agreement does not transfer the interest in the property to the developer in general law and, therefore, section 2(47)(v) has been enacted and in such cases, even entering into such a contract could amount to transfer from the date of the agreement itself. We have taken this view for a precise reason. Firstly, we find in numerous matters where the Assessing Officer and the department generally proceed on the basis of substantial compliance of the contract. For example, in this very case, the department has contended that because of substantial compliance of the contract during the financial year ending 31st March, 1996, the transfer is deemed to have taken place in that year. Such interpretation would result in anomaly because what is substantial compliance would differ from Officer to Officer. Therefore, if on a bare reading of a contract in its entirety, an Assessing Officer comes to the conclusion that in the guise of agreement for sale, a Development Agreement is contemplated, under which the developer applies for permissions from various authorities, either under power of attorney or otherwise and in the name of the assessee, then the Assessing Officer is entitled to take the date of the contract as the date of transfer in view of section 2(47)(v).” Unquote. 15. ITAT Bangalore has held in the case of Jaico Automobile Engineering Company (P.) Ltd. Vs. DCIT [2022] 192 ITD 147(Bangalore) as under : Quote, “70. In the present case, we are of the considered opinion that it is squarely covered by the ratio of the jurisdictional Hon'ble Karnataka High Court's judgment in the case of Dr. T.K. Dayalu's (supra) wherein it was unequivocally held that the year of signing of the JDA should the primary consideration for determining the ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 22 year of charge of capital gains While the present case satisfies the legal requirements laid down by the aforesaid judgment, there is also no doubt that a significant consideration in the form of cash and proposed built-up area has also exchanged hands between the purchasers and seller, accompanied with corresponding transfer of rights of access/development/construction and sale of the impugned property. 71. By virtue of the JDA dated 30103/2007, (clause I-C) the Assessee permitted IDEB the rights of development of the site and such right was irrevocable. The consideration was fully determinable in terms of sub-clause (d) of clause 1, by virtue of which 1,48,333 sq. ft of the super built-up area in the proposed complex, was to be developed and delivered to the Assessee. A clause providing for compensation @ 3000 per sq. ft. was also provided therein. The sub-clause e of clause I of the JDA provided for the payment of interest-free refundable deposit of Rs. 35,00,000 to the Assessee. Out of this an amount of Rs. 15,00,000 was actually paid on the date of the agreement itself. The JDA (at sub-clause f) of clause - I specifically provided for execution of an irrevocable General Power of Attorney to "develop; alienate; sale, convey and lease" the constructed area. The contents of the agreements to sale and the General Power of Attorney executed on the same dated i.e. 30/03/2007 also clearly indicate similar conditionalities, which crystallize into a valid transfer of property, during the year under consideration. 72. In this case, JDA has been registered and assessee has given Power of Attorney on 30-3-2007. As per Power of Attorney also, the assessee has given the right to the developer to execute agreement or sale deeds or other conveyance in respect of schedule property and to do all acts, deeds and things with the said developer as considered necessary or any other manner as deemed fit so as to fully and effectually convey the same. This issue is also covered against the assessee by the judgment of the Hon'ble ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 23 Supreme Court in the case of Balbir Singh Maini case (supra) as JDA & POA has been registered and reading of these registered documents show that the present assessee being owner of the land has parted with ownership of land to the developer and developer has the right to develop, alienate, sale, convey and transfer the constructed area and there is valid transfer of rights by the landlord to the developer. By the same GPA, the assessee has also given right to the developer to sell upto 115000 sq.ft. built up area of the assessee's share of constructed area also. Thus, he has given the bundle of rights through GPA in favour of the developer including right to sell the property. 73. The point pertains to the fixation of "material date" for the purpose of assessing the capital gain. There is no dispute with regard to the fact that the assessee has entered the agreement on 30-3-2007. As per clause 5.3 of the said agreement, the builder would commence the development of property on the delivery of the possession of the land. However, in the clause 6.1, it is also mentioned "however that nothing herein contained shall be construed as delivery of possession in part performance of any agreement for sale under s. 53A of the T.P. Act and u/s. 2(47)(v) of the I.T. Act". Further as per clause 5.2 of the agreement, the possession of vacant land was handed over to the developer only on 30-11-2007. Accordingly, it is contended by the assessee that it has not given possession of the land as contemplated in sec. 53A of the Transfer of Property Act. It is the contention of the assessee that the possession was handed over only on 30-11-2007. 74. In this regard, we may extract below the relevant portion of the JDA:- "The OWNER shall deliver the vacant possession of the Schedule Property to the DEVELOPER before 30/11/2007. Prior to delivery of vacant possession, the OWNER shall remove all structures on the Schedule Property." 75. Thus, it is seen that the above clauses show that the handing over of the ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 24 possession of the constructed area to the assessee. There may not be any dispute that the income tax department is concerned with the handing over the possession of the vacant land to the builder under the development agreement. As per the assessee, the possession of vacant land was handed over the developer only on 30-11-2007, i.e., upon receiving the entire security deposit. JYOTI 76. It is a well settled proposition of law that the substance shall prevail over the form. Though it is mentioned in the agreement that the possession of land shall be handed over only after receipt of security deposit, yet the builder, under practical circumstances, cannot start construction unless the physical possession of land is handed over to him. Hence, for all practical purposes, we are of the view that the physical possession was handed over to the builder after entering into the agreement dated 30-3-2007 and right to entry into the property cannot be construed as permissive possession when the developer has a right to alienate the same to others by way of sale, mortgage, gift, loan or otherwise dispose of the same. 77. In our opinion, as held by the Supreme Court in the case of Alapati Venkataramiah v. CIT [1965] 57 ITR 185, to attract liability to tax u/s. 45, it is sufficient if in the accounting year profits have arisen out of transfer of capital asset. In other words, if the assessee had a right to receive the profit in the assessment year under consideration, the assessee is liable to pay capital gains tax on transfer of capital asset. Actual receipt of profit is not a relevant consideration. Once the profits have arisen in the accounting year out of the transfer of capital asset, it would be sufficient to attract liability u/s. 45 of the Act. The contention of the assessee is that there was no transfer in the assessment year under consideration as the possession of the property has not been given to the developer. In the present case, the assessee executed registered JDA along with registered GPA which authorizes the developer a provisional ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 25 permission to enter into the land and authorizing them to develop, execute sale deed or other conveyance in respect of the impugned property and authorize to sell the constructed area of both the assessee as well as the developer. As such, there is a transfer in terms of section 45 r.w.s. 2(47) of the Act. Accordingly, we decide this ground against the assessee in favour of the department.” Unquote. 16. The facts of the present case are identical to the facts of the Jaico Automobile case (supra). In the case under consideration also the assessee has transferred Bundle of Rights to the developer. The value of the impugned land is specifically mentioned in the JDA as Rs.7 crores (page 47 of Paper Book) and value for the purpose of stamp duty is Rs.8,00,27,640/-. The land owners have received Rs. 1 crore as security deposit which is mentioned in the clause 4 of the JDA. It is not the claim of the assessee that Developer has not carried out construction. It means the developer has performed his part of the JDA. The assessee has given ‘Open Possession’ to the developer. The assessee has granted all Rights to the developer including Right to Mortgage the impugned property, obtain loan against the impugned property, sale alienate any part of the constructed property. The Developer has completed construction of two buildings, given 30% of sale price of 90 flats to assessee as per terms of JDA. Thus, assessee has extinguished his rights in the property. The extinguishment of Rights is irrevocable. Therefore, we hold that it is ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 26 a transfer as envisaged in the Section 2(47) of the Act on 28/04/2008 i.e. on the date of Joint Venture Agreement. Therefore, the AO was right in arriving at the decision that the LTCG arise in A.Y.2009-10. However, while calculating the LTCG, the AO has to reduce the indexed cost of acquisition from the Total Value of land. In this case the AO has not reduced the Indexed Cost of acquisition. Hence, the AO is directed to verify the cost of acquisition, after giving opportunity to the assessee and then reduce the indexed cost of acquisition while calculating LTCG. Accordingly, the grounds of appeal of the revenue are partly allowed. 17. The Ld. AR has pleaded before us that the assessee had issued a notice to the developer through his Advocate for cancellation of the Joint venture Agreement. In support of the said pleading the Ld.AR filed copy of an unsigned notice apparently dated 17/02/2020, however, it does not contain any date. In this context we specifically asked the Ld.AR whether any civil suit has been filed. The Ld AR submitted that no civil suit has been filed. We specifically asked whether as on date any Cancellation deed signed, the Ld.AR submitted that no cancellation deed signed. The Ld.AR has not produced any other evidence other than the said unsigned notice copy. In these facts and circumstances of the case, we are of the opinion that the said claim made by the assessee is not acceptable as ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 27 he has not substantiated it by documentary evidence. Hence it is rejected. 18. In the result, appeal of the Revenue is Partly Allowed. Cross Objection No.07/PUN/2020 : 19. The assessee has filed cross objection. The grounds of appeal raised in the cross objections are as under : “1. On the facts and in the circumstances of the case and in law the appeal filed by the A.0./Revenue is not maintainable in law as perusal of the grounds of appeal in F. No. 36 (ITA No. 67/Pun/2018) pertaining to A. Y. 2009-10 are not in challenge to any decision of the CIT(A) in his order. Since it is not in challenge to CIT(A) order it means the order of the CIT(A) holding in faovur of the assessee also has been accepted by the A. O. The appeal be dismissed as not maintainable. 2. On the facts and in the circumstances of the case and in law the asessee's contentions before Ld. CIT(A) were explaining that the matter relates conversion of capital asset in to stock-in-trade and S. 45(2) of the Act applied. The capital gain upto conversion into stock- in-trade of the capital asset was assessable and after conversion it was to be assessed as business profit with the condition precedent that such capital gain was assessable in the year of the sale of the capital asset and stock-in-trade. No such stage had reached as there was not sale of the asset as well as stock in trade. The Ld. CIT(A) had rightly deleted the addition. 3. On the facts and in the circumstances of the case and in law the ground of appeal states that the Ld. CIT(A) is erred in holding that there was no transfer as per the provisions of S. 2(47)(v) of the ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 28 Act and S. 53A of Transfer of Property Act, 1882. The decision in Chaturbhuj Dwarkadas Kapadia v. CIT(Bom) 260 ITR 491 was in favour of Revenue. But this ground is not raised on the facts of the case. The decision was on the legal issue of conversion of capital asset into stock-in-trade and taxable as per S. 45(2) of the Act. The grounds of appeal raised in the appeal memo are misplaced on law and fact. The appeal of the Revenue is not maintainable. 4. On the facts and in the circumstances of the case and in law the circular of CBDT on the issue "Tax Exemption on sale of capital assets converted into stock-in-trade under S. 45(2) dt. 2-6- 2000" was binding on the Deptt. The appeal filed by the Revenue is contrary to the said Board Circular. The appeal of the Revenue be dismissed. 5. The appellant craves to leave, add/amend or alter any of the above grounds of appeal.” 20. The Ground No.1 of the Cross objection is devoid of merit. The Revenue has challenged the findings given by the ld.CIT(A) in the grounds raised before us. The revenue has filed elaborate grounds and during pleading has explained all facts and grounds raised. Therefore, in the facts and circumstances of this case the ground of appeal number 1 raised by the assessee in Cross Objection is dismissed. 21. In the cross objection, the assessee has raised Ground No.2 and 3 regarding applicability of section 45(2) of the Act. The assessee had claimed before the Ld.CIT(A) that assessee had converted the land as ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 29 stock in trade hence 45(2) is applicable. However, before us the assessee has not produced any evidence that the land was converted into stock in trade. We specifically asked the Ld.AR to show us the Balance Sheet and Profit & Loss account to show the entry of conversion of land into stock in trade. However, the Ld.AR has not submitted any Balance Sheet. The Ld.AR has not submitted any Profit and Loss Account. When a land is converted in Stock in trade, the said land will appear as Closing Stock in the profit and Loss account of the Assessee. Also the Said land will appear as Closing Stock in the Balance Sheet. The Ld.AR failed to demonstrate that the impugned land appears as closing stock in Profit and Loss Account, Balance Sheet. The Ld.DR submitted that no Balance sheet seems to have been filed by the assessee before the AO. In the facts and circumstances of the case the claim of the assessee of conversion of land in stock in trade is mere oral submission without any supporting documents. Therefore, the claim made by the assessee is rejected. Accordingly Ground No.2 and 3 is dismissed. 22. The Ground No.3 raised by the assessee in Cross objection has also raised that there was no transfer as envisaged in section 2(47) of the Act. This issue we have discussed elaborately while discussing the appeal of the revenue. We have already held that there is Transfer as envisaged in section 2(47) of the Act. We have also discussed that ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 30 there is no conversion of land into stock in trade by the assessee. Hence, the Ground No.3 raised by the assessee in cross objection is rejected. 23. Accordingly, the Cross Objection of the Assessee is rejected. ITA No.1579/PUN/2018 for A.Y. 2009-10 : 24. This appeal No.1579/PUN/2018 having common issues, raised identical grounds of appeal and the facts of this appeal under consideration are almost identical to the facts in ITA No.67/PUN/2018. The issue is LTCG. The Assessing Officer hold that Assessee had transferred the land to Navratana Developers by entering into Joint Venture Agreement Dated 28/4/2008 and Irrevocable General Power of Attorney dated 28/4/2008. Therefore, our findings and decision in ITA No.67/PUN/2018 for A.Y.2009-10 will apply mutatis-mutandis to this appeal in ITA No.1579/PUN/2018. Accordingly, grounds of appeal raised by the Revenue are Partly Allowed. 25. In the result, appeal of the Revenue is Partly Allowed. Cross Objection No.40/PUN/2022 : 26. Ground raised in the Cross Objection appeal as under: “1. The Ld.CIT(A) erred in not adjudicating the issue of whether the Respondent had any right/title/interest in the said land, when ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 31 the entire capital gain was offered for tax by the Respondent’s mother in A.Y. 2014-15.” 27. The ld.AR for the assessee i.e. Rahul Bankar, submitted a paper book. The ld.AR submitted that assessee’s mother has offered the capital gain for taxation and therefore assessee shall not be taxed as it will be double taxation. The ld.AR invited our attention to copy of “will” of late Waman Basi Bankar(page no. 39 to 44 of the paper book). The ld.AR claimed that as per the will the property mentioned at Clause 4 goes to assessee and Sangeeta, Asmita and Ashwini. 28. We have perused the paper book, heard ld.AR and ld.DR. The main contention of the assessee is that the assessee i.e.Rahul Bankar is not having any title interest in the land, hence, no capital gain can be taxed in the hands of Rahul Bankar. We have carefully studied the power of attorney and joint venture agreement dated 28.04.2008. In the joint venture agreement, at S.No.2 the name mentioned is Rahul Waman Bankar as owner of the land. We have already mentioned in the case of Anil Vithal Bankar that the Joint Venture Agreement is between M/s.Navratna Properties, a partnership firm through its partner and 16 other persons who has been referred as party no.2 as owners of the land. This Joint Venture Agreement is duly registered. Mr.Rahul Bankar has signed the said Joint Venture ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 32 Agreement. Similarly, Mr.Rahul Bankar’s name appears in the irrevocable general power of attorney given by these 16 persons, land owners to Navratna Properties. Mr.Rahul Bankar has also signed Irrevocable General Power of Attorney. Therefore, Mr.Rahul Banker has admitted in these documents that he is one of the owners of the land, mentioned in the documents. Therefore, there is no merit in the plea of Mr.Rahul Bankar that he has got no interest title in the land. Mr.Rahul Bankar claimed that his mother Smt.Vimal Bankar had offered the long term capital gain arising out of said transaction in A.Y.2015-16. In the paper book at page no.45 to 48 assessee has submitted first page of the return of income and computation of income. We have perused the same, Smt.Vimal Waman Bankar has offered capital gain of Rs.2,50,30,919/- in A.Y. 2015-16, however, the computation of income does not give any details of the transaction and property on which the long term capital gain has been offered. Therefore, the claim of assessee i.e. mother has shown long term capital gain in A.Y. 2015-16from the impugned transactions, arising out of Joint Venture Agreement duly registered on 28.04.2008, for the land at Survey No.50, Hissa No.10 + 11/ land Survey No.50, Hissa No.10 + 118/2/1 Hadapsar, Pune is devoid of merit and hereby rejected. Even otherwise the correct Assessee has to ITA No’s.67& 1579/PUN/2018and C.O.No.07/PUN/2020 & C.O.No.40/PUN/2022 Anil VithalBankar& Rahul Waman Bankar[R] 33 pay the tax. Therefore, Ground No.1 of the Cross Objection appeal is rejected. 29. In the result, Cross Objection is dismissed. 30. To sum up, Revenue Appeals in ITA No.67/PUN/2018 & ITA No.1579/PUN/2018 are Partly Allowed and Cross Objections of the assessee(s) in C.O. No.07/PUN/2020 and C.O.No.40/PUN/2022 are dismissed in above terms. A copy of this common order be placed in respective case files. Order pronounced in the open Court on 2 nd February, 2023. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 2 nd Feb, 2023/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “बी” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.