Emporis Properties Pvt. Ltd., Kolkata V. PCIT-2, Kolkata

ITA 299/KOL/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4274 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 25-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Revision of order; Difference of opinion; Change of opinion; Reassessment proceedings; Capital Gains
• Section: 147; 148; 263; 43CA; 143(3); 50C; 2(14); 48

Judgement Text

आयकर अपीलȣय अͬधकरण, कोलकाता पीठ ‘ए’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “A”BENCH KOLKATA Įी संजय गग[, ÛयाǓयक सदèय एवं डॉÈटर मनीष बोरड, लेखा सदèय के सम¢ Before Shri Sanjay Garg, Judicial Member and Dr. Manish Borad, Accountant Member I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd.........................................................................Appellant 5 th Floor, 16A, Brabourne Road, Dalhousie, Kolkata-1. [PAN: AADCE0793Q] vs. PCIT, Kolkata-2...................................................................................Respondent Appearances by: Shri S.K. Tulsiyan, Advocate and Mita Rizvi, appeared on behalf of the appellant. Shri Biswanath Das, CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing :September 08, 2022 Date of pronouncing the order :September 22, 2022 आदेश / ORDER संजय गग[, ÛयाǓयकसदèयɮवारा/ Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the revision order dated 26.03.2022 of the Principal Commissioner of Income Tax (hereinafter referred to as the ‘PCIT’) passed u/s 263 of the Income Tax Act (hereinafter referred to as the ‘Act’). The assessee in this appeal has taken the following grounds of appeal: “1. That, on the facts and in the circumstances of the case, the Ld. Pr. C.I.T., Kolkata erred in law in assuming jurisdiction u/s. 263 of the Act in order to impose his own views on the Ld. A.O. when in the instant case both assessment u/s.143(3) of the Act and reassessment u/s.143(3)/147 of the Act were completed after examining the relevant development agreement and the detailed submission filed along with other relevant details in course of the reassessment proceeding and the Ld. A.O. had taken a plausible and judicious view, which did not suffer from lack of independent and adequate enquiry. 2. That, the Ld. Pr. C.I.T erred in holding the assessment order u/s.143(3)/147 of the Act erroneous and prejudicial to the interest of the revenue in spite of the fact that the impugned reassessment was not a case of no enquiry and after thorough examination of the related documents, the Ld. A.O. took a judicious view in the matter that as per the Development Agreement entered into on 17/09/2013 there is only part performance of I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 2 such agreement by the owner i.e. assessee by giving possession of the property for the limited purpose of development which would not amount to a "transfer" so as to attract the provisions of section 43CA of the Income Tax Act, 1961. 3. That, on the facts and in the circumstances of the case, the Ld. Pr. C.I.T. erred in law in assuming jurisdiction u/s.263 of the Act and setting aside the reassessment order u/s.143(3)/147 of the Act for fresh assessment, totally ignoring the fact that even if the impugned property which is to be developed as per the Development Agreement is treated as "stock-in-trade" of the assessee and not "capital asset', no "transfer" of the impugned property arose on the assessee at the time of entering into the Development Agreement on 17/09/2013 since only possession was given under the agreement and that too, for the limited purpose of development for which the assessee is not liable to pay any tax and hence, in no event the order passed by the Ld. AO can be alleged to be prejudicial to the interest of the revenue. 4. That, the Ld. Pr. CIT further erred in treating the assessment order erroneous and prejudicial to the interest of the revenue in spite of the fact that it is a revenue neutral case and it is after examining the aspect that even if the impugned property is treated as “stock-in-trade”, no “transfer” arose at the time of entering into the agreement since the possession of the land handed over to the Developer, as per the agreement, was only for the limited purpose of development and that the Ld. A.O had accepted this position and as such, the impugned order has not caused any prejudice to the revenue. 5. That, the appellant craves leave to amend, alter, modify, substitute, add to, abridge and/or rescind any or all of the above grounds.” 2. A perusal of the above grounds of appeal would reveal that the assessee has contested the invocation of jurisdiction by the ld. PCIT u/s 263 of the Act in the facts and circumstances of the case of the assessee. 3. The brief facts of the case are that the assessee filed its return of income for the assessment year under consideration on 09.03.2015, the case was selected for limited scrutiny and thereafter the assessment order u/s 143(3) of the Act was passed by the Assessing Officer vide order dated 16.10.2017. Thereafter, the assessment in the case of the assessee was reopened by the Assessing Officer u/s 148 of the Act observing that the income of the assessee for the assessment year under consideration has escaped assessment. The Assessing Officer, in this respect, observed that the assessee being an owner of the land had entered into a Joint Development Agreement (JDA) with M/s P.S. Group Realty Ltd. being a developer. As per the said agreement after the construction of the housing complex on the said land, 55% portion of the same will pertain to the assessee/owner and 45% to the developer. The Assessing Officer was of the view that I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 3 this execution of joint development agreement amounts to transfer of the capital asset and therefore, the assessee was liable to pay capital gains tax which is escaped assessment. The Assessing Officer recorded the following reasons in this respect: “M/s. Emporis Properties Pvt. Ltd. (Pratik Choraria), being an owner made a Development Agreement with M/s P.S. Group Reality Ltd. being a developer As per agreement between the owners and developer, the owner grants permission to the developer of the purpose of carrying out construction of the housing complex at the premises. The housing complex shall belong to the owner and the developer in the proportion of 55% to the owner and 45% to the developer. With the signing of the development agreement after obtaining a part consideration and handing over of possession to the developer, all the owners are liable to pay capital gain. Since the development agreement as well as general power of attorney was made on 17.09.2013 i.e. during the F.Y. 2013-14, M/s. Emporis Properties Pvt. Ltd. (Pratik Choraria) is liable to pay capital gains for AY 2014-15 on the stamp value of Rs.27 65,56,213/- as assessed by the registered authority in the following manner: SI.No. Name of the owner Share of interest Share of deemed sale value u/s 50C Actual deemed Sale value for LTCG M/s Emporis Properties Pvt. Ltd. (Pratik Choraria) 100% of undivided share of interest Rs.27,65,56,213/- Rs.12,44,50,295/- (45% of Rs.27,65,56,213/- ) Hence, the amount of long term capital gain chargeable to tax in the hand of the owner is Rs.12,44,50,295/-, which has escaped assessment. Under the circumstances, the above income is required to be re-assessed as per provisions of section 147 of the I.T. Act, 1961.” 4. In response to the aforesaid reasons recorded, the assessee made the following submissions: “We have received your letter dated 23.04.2019 intimating us the reason recorded by you for initiating re-assessment proceedings against us u/s. 147 of the Income-tax Act for the assessment year 2014-15. In the said reason, you have stated that Capital Gains chargeable to tax on our handing over possession of immovable property (land) to P.S. Group Realty Ltd. pursuant to a development agreement entered into with that company has escaped assessment in our hands during the assessment year 2014-15. This observation made by you in the recorded reason is not correct, as explained below: 1) That income under the head "capital gains" arises on transfer of a capital asset. I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 4 2) That the said land was not a capital asset i.e. not held by us as fixed asset or investment. Consequently, there was no transfer of any capital asset on our handing over possession of land to P.S. Group Realty Ltd. pursuant to the said development agreement. 3) That the said land was our stock in trade and stock-in-trade is not treated as capital asset under the provisions contained in section 2(14) of the Income-tax Act. We urge you to kindly refer our audited financial statements for the financial year 2012-13 for your necessary verification of this fact. The profit & Loss Statement for the year ended 31.03.2013 clearly indicates that the said land was our stock- in- trade. 4) That profit from stock-in-trade is chargeable to tax under the head "Profits & Gains of Business' and the same will arise in future, i.e., in the year of actual sale to the prospective buyers. 5) That our income-tax assessment for the assessment year 2014-15 has been made by you under scrutiny vide Order u/s 143(3) dated 16-10-2017. During the course of such scrutiny assessment, the above mentioned facts and the relevant provisions of the Income-tax Act were duly explained by us and have already been considered and examined by you. Accordingly, the reopening of such assessment by you is on account of a subsequent change of opinion, which is not permissible under the provisions contained in section 147 of the Income-tax Act. 6) That for re-opening of any assessment completed under scrutiny, there must be some fresh information in the possession of the assessing officer leading him to conclude that income has escaped assessment. The reason recorded by you for re-opening our assessment u/s.147 does not indicate any such fresh information. As there is no case of any chargeable long term capital gains escaping assessment in our hands during the assessment year 2014-15, as has been wrongly stated in the reason recoded by you for initiating re-assessment proceedings, we request you to kindly drop these proceedings. 5. During the assessment proceedings, the assessee furnished the requisite details and submissions, after considering the same, the Assessing Officer accepted the returned income of the assessee as nil. 6. Thereafter, the ld. PCIT invoked his jurisdiction u/s 263 of the Act and observed that during the reassessment proceedings u/s 147 of the Act, the assessee had claimed before the Assessing Officer that the land, in question, was stock-in-trade and not being a capital asset, therefore, consideration/deemed consideration/market value on transfer of the said land was not assessable under the head ‘long-term capital gains’ and that the I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 5 provision of section 50C was not applicable in its case. The ld. PCIT observed that though the Assessing Officer has accepted the aforesaid contention of the assessee, however he had failed to apply the provision of section 43CA of the Act which deals with special provision for full value of consideration for transfer of assets other than capital assets. That, since the Assessing Officer had failed to examine the income of the assessee in the light of the provisions of section 43CA of the Act, such omission on the part of the Assessing Officer to examine the transaction in terms of section 43CA of the Act, prima facie, has caused the assessment order passed u/s 147/143(3) of the Act to be erroneous in so far as it was prejudicial to the interest of Revenue. He accordingly set aside the assessment order and restored the matter to the Assessing Officer for the limited purpose of verification of the applicability of the provisions of section 43CA of the Act to the transaction under JDA. 7. Being aggrieved by the above exercise of revision jurisdiction by the ld. PCIT, the assessee has come in appeal before us. 8. We have heard the rival contentions and gone through the records. Before proceeding further, it will be relevant to reproduce here the relevant provision of section 50C of the Act and section 43CA of the Act:  “Special provision for full value of consideration in certain cases. 50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer : Provided...........”  Special provision for full value of consideration for transfer of assets other than capital assets in certain cases. "43CA. (1) Where the consideration received or accruing as a result of the transfer by an assessee of an asset (other than a capital asset), being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 6 transfer, the value so adopted or assessed or assessable shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration received or accruing as a result of such transfer. Provided...........” 9. The term ‘transfer’ in relation to a capital asset has been defined as per the provisions of section 2(47) of the Act as under: (47) [“transfer", in relation to a capital asset, includes,- (i) the sale, exchange or relinquishment of the asset; or (ii) the extinguishment of any rights therein; or (iii) the compulsory acquisition thereof under any law; or (iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment;] [or] [(iva) the maturity or redemption of a zero coupon bond; or] (v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance ofa contract of the nature referred to in section 53A of the Transfer of Property Act, 1882; (4 of 1882); or (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co- operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, any immovable property. [Explanation 1]- For the purposes of sub- clauses (v) and (vi),"immovable property" shall have the same meaning as in clause (d) of section 269UA;] [Explanation 2- For the removal of doubts, it is hereby clarified that “transfer” includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterised as being effect or dependent upon or flowing from the transfer of a share or shares of a company registered or incorporated outside India;] I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 7 10. It is pertinent to mention here that there is no definition provided under the Income Tax Act in relation to a ‘transfer of an asset being stock-in-trade’. 11. Now, in the light of aforesaid provisions of the Act, we will examine the contents and relevant clauses of Joint Development Agreement entered into by the assessee and the developer: REPRESENTATIONS AND OBLIGATIONS OF THE OWNER ............................ 2. It is agreed and recorded that the said vested land admeasuring 2 Bighas, 11 cottahs, 12 chittacks and 36 sq.ft. and morefully described in the second schedule hereunder written shall always be the property of the owner and any benefit deriving out of the same shall belong exclusively to the owner and the developer shall have no right title interest therein. Provided however this shall not prelude the owner to enter into an arrangement with the developer for developing the said vested land on the terms and conditions as may be mutually agreed upon provided the owner is permitted by the Government of West Bengal to develop the said vested land. APPOINTMENT 1. The owner herein hereby appoints the Developer as the builder and/or developer for carrying out the development at the “said premises" as per the sanctioned plan or plan subject to the terms and conditions recorded therein. ...................................... ........................ SPACE ALLOCATION 1. In consideration of the development of the Housing Complex at the said premises by the Developer at its own costs and expenses which includes Owner's Allocation and in consideration of the said premises provided by the owner as envisaged herein it is agreed by and between the Owner and the Developer that the entire constructed area of the said Housing Complex shall be divided and apportioned in the manner as stated hereunder:- (i) 55% of the constructed areas of the said Housing Complex together with all the common areas, amenities and facilities therein and together with undivided proportionate share of the land of the said premises appertaining thereto shall belong to the owner hereinafter called the" Owner's Allocation". (ii) 45% of the constructed areas of the said Housing Complex together with all the common areas, amenities and facilities therein and together with undivided I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 8 proportionate share of the land of the said premises appertaining thereto shall belong to the Developer hereinafter called the" Developer 's Allocation.” SECURITY DEPOSIT & ADVANCE 1. It is agreed and recorded that the Developer shall deposit with the owner a total sum of Rs.10,00,00,000/- (Rupees ten crores) only as an interest free security deposit which shall be paid in the following manner: i) A sum of Rs.5,00,00,000/- (Rupees five crores) only shall be paid by 30 th September 2013. ii) A further sum of Rs.5,00,00,000/- (Rupees five crores) only shall be paid by 31 st January 2014. iii) At the time of execution of this presents no payment is being made. 2. It is agreed and recorded that the said interest free security deposit of the said total sum of Rs.10,00,00,000/- (Rupees ten crores) only shall be refunded by the owner to the developer within fortnight from the date of the receipt of the notice of completion of the construction of the said housing complex. TERMINATION It is also agreed and recorded that in case of failure on the part of the Developer to complete the said Housing Complex and/or handover Owner allocation with all common amenities and facilities within the stipulated time of 4 (four) years together with grace period of 1 (one) year as provided heneinabove, this agreement shall stand determined and cancelled and the developer shall cease to have any right title interest under this agreement in respect of the said Premises and the Developer shall be entitled to complete the construction of incompleted portions of the said Housing Complex provided however the Owner shall refund the entire outstanding amount of interest free Security deposit and the costs of construction of the said Housing Complex and value of the costs of construction shall be certified by the structural engineer and architects. 12. A perusal of the above reproduced relevant terms and conditions of the JDA would reveal that the owner (assessee) had continued to be the owner of the property throughout the development of the property and had at no stretch of time transferred his right similar to ownership to the developer. The possession of the property was given to the developer for the purpose of development of the property and in case the developer fails to develop the property within the stipulated period of four years together with grace period of one year as provided under the Agreement, the agreement would stand determined and cancelled and the developer shall cease to have any right title or interest under the Agreement in respect the said premises. The I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 9 developer, in that event, shall be entitled to the refund of the entire interest free security deposits and cost of construction from the owner. A reading of the entire JDA in whole, would show that there is no transfer/sale of the asset (land) under the JDA. Rather, under the Agreement the developer would develop the land making it saleable and in lieu of the construction of the same, the developer will take a part of the stock-in-trade. Even the payment made by the developer to the owner is a refundable security only, which the owner is liable to refund on completion of the project. At the time of execution of the JDA, there is no transfer/sale of stock-in-trade of the assessee. Since there is no sale of stock, the assessee has not returned any profit/gains from the business in his return of income. Even, the ld. PCIT has not given any finding that the assessee has earned any profits from the transfer/sale of stock-in-trade in this case. Even, the Hon’ble Supreme Court in the case of “Commissioner of Income-tax vs. Balbir Singh Maini” reported in [2017] 86 taxmann.com 94 (SC), while interpreting the provisions of section 2(47) of the Act in respect of transfer of a capital asset, has held as under: “22. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression "enabling the enjoyment of" takes colour from the earlier expression "transferring", so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof 1 The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact. 23. A reading of the JDA in the present case would show that the owner continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to ownership to the developer. At the highest, possession alone is given under the agreement, and that too for a specific purpose -the purpose being to develop the property, as envisaged by all the parties. We are, therefore, of the view that this clause will also not rope in the present transaction. 24. The matter can also be viewed from a slightly different angle. Shri Vohra is right when he has referred to Sections 45 and 48 of the Income Tax Act and has then argued that some real income must "arise" on the assumption that there is transfer of a capital asset. This income must have been received or have "accrued" under Section 48 as a result of the transfer of the capital asset.” The definition of ‘transfer in relation to a capital asset’ is wider as compared to the term ‘transfer in relation to a stock-in-trade’. However, even though we apply the above definition of transfer in relation to a capital asset to stock-in-trade also yet, as I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 10 held by the Hon’ble Supreme Court in the case of “Balbir Singh Maini”(supra) , the aforesaid JDA entered into by the assessee with the developer as per the terms of JDA does not amount to be a transfer, therefore , the provisions of section 43CA will not have any applicability to the case of the assessee. 13. Now a particular question that arises at this stage for examination is as to whether the stamp duty authorities has taken the aforesaid JDA as ‘transfer/conveyance deed’ for the purpose of levying of stamp duty on the market value of the property. Paper-book page 14 is the copy of certificate of registration of the aforesaid JDA, which for the sake of ready reference is reproduced as under: “Government of West Bengal Office Of the D.S.R. III SOUTH 24-PARGANAS District:-South 24-Parganas ___________________________________________________________________ Endorsement For Deed Number: I-08324 of 2013 (Serial No. 08758 of 2013) (Duplicate Deed of the Original Deed No I-08323 of 2013 ___________________________________________________________________ On Certificate of Market Value(WB PUVI rules of 2001) Certified that the market value of this property which is the subject matter of the deed has been assessed at Rs.- /- Certified that the required stamp duty of this document is Rs.75020/- and the Stamp duty paid as Impresive Rs.500/- On 17/09/2013 Presentation (Under Section 52 & Rule 22A(3) 46(4).W.B. Registration Rules, 1962) Presented for registration at 15.30 hrs on 17/09/2013, at the Private residence by Surendra Kumar Dugar Claimant. Admission of Execution (under Section 58, W.B. Registration Rules, 1962) Execution is admitted on 17/09/2013 by 1. Mr. Pratik Choraria Director, Emporis Properties Put Ltd., Flat No:5th Floor, 16 A, Braboume Road, Kolkata, Thana: Hare Street, District-Kolkata, WEST BENGAL, Indie, Pin -700001. By Profession: Business 2 Surendra Kumar Dugar Director, P. S. Group Realty Ltd, 83, Topsia Road (S), Kolkata, Thana:-Topsia, Distric-South 24-Parganas, WEST BENGAL, India, Pin -700046 I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 11 By Profession Others Identified ByDhirajSethia, son of Noratan Mal Sethia, 83, Topsia Road (S), Kolkata, Thana Topsia. District:-South 24-Parganas, WEST BENGAL, India, Pin-700046, By Caste: Hindu, By Profession Service (Rajendra Prasad Upadhyay) DISTRICT SUB-REGISTRAR-III OF SOUTH 24-PARGANAS On 18/09/2013 Certificate of Admissibility (Rule 43, W.B. Registration Rules, 1962) Admissible under rule 21 of West Bengal Registration Rule, 1962 duly stamped under schedule 1A, Article number: 4, 5(f) of Indian Stamp Act 1899. Payment of fees: Amount by cash Rs.21.00/-, on 18/09/2013 (Rajendra Prasad Upadhyay) DISTRICT SUB-REGISTRAR-III OF SOUTH 24-PARGANAS 14. A perusal of the above certificate/registration would show that the clause relating to market value of the property has been left blank/not applicable. Further, the JDA has been registered under Rule 21 of the West Bengal Registration Rule, 1962 and duly stamped under Schedule 1A, Article No.4, 5(f) of the Indian Stamp Act 1899. Now, the relevant part of the Article No.4, 5(f) of Schedule 1A of Indian Stamp Act relating to the stamp duty on instruments in West Bengal,speaks as under: Description of Instruments Proper Stamp-duty 4.AFFIDAVIT, including an affirmation or declaration in the case of persons by law allowed to affirm or declare instead of swearing. Exemptions Affidavit or declaration in writing when made – (a) as a condition of enlistment under the Army Act, 1950 (46 of 1950); (b) for the immediate purpose of being filed or used in any court or before the officer of any Court; or (c) for the sole purpose of enabling any person to receive any pension or charitable allowance. Rupees ten. I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 12 5. (f) if relating to an agreement giving authority to a promoter or developer, by whatever name called, for construction on, or sale of, or transfer (in any manner whatsoever) of, any immovable property – (i) where the market value of the property does not exceed rupees thirty lakh; (ii) where the market value of the property exceeds rupees thirty lakh but does not exceed rupees sixty lakh; (iii) where the market value of the property exceeds rupees sixty lakh but does not exceed rupees one crore; (iv) where the market value of the property exceeds rupees one crore but does not exceed rupees one and half crore; (v) where the market value of the property exceeds rupees one and half crore but does not exceed rupees three crore; (vi) where the market value of the property exceeds rupees three crore; Explanation.- The expression “Agreement or Memorandum of an Agreement”, if relating to a sale shall include an agreement to sell or any memorandum or acknowledgment in relation to transfer or deliver of possession of immovable property with an intent to transfer right, interest in, or title to, such property at any future date. Exemptions: Agreement or Memorandum of Agreement — (a)for or relating to the sale of goods or merchandise exclusively, not being a note or memorandum chargeable under No. 43; (b)made in the form of tenders to the Government of India for, or relating to, any loan. Rupees five thousand. Rupees seven thousand. Rupees ten thousand. Rupees twenty thousand. Rupees forty thousand. Rupees seventy-five thousand. 15. A perusal of the aforesaid Article No.4, 5(f) of Schedule 1A of Indian Stamp Act as applicable to the State of West Bengal would show that the affidavits and agreements are stamped at a fixed value as mentioned above, and they are not categorized as transfer or conveyance deed of any property. The stamp duty leviable on I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 13 conveyance/transfer of property has been mentioned under Article 23, which, for the sake of ready reference, is reproduced as under: Description of Instruments Proper Stamp-duty 23. CONVEYANCE [as defined by section 2(10)], not being a conveyance under No.23A and not being transfer charged or exempted under No. 62. (a) Six per centum of the market value, in case the market value of the property does not exceed rupees one crore, and seven per centum of the market value, in case the market value of the property exceeds rupees one crore, when the property is situated in the areas to which the Kolkata Improvement Act, 1911, or Howrah Improvement Act, 1956, extends. (b) Six per centum of the market value, in case the market value of the property does not exceed rupees one crore, and seven per centum of the market value, in case the market value of the property exceeds rupees one crore, when the property is situated in the areas of any Municipal Corporation or Municipality or a notified area other than those included in clause (a). (c) Five per centum of the market value, in case the market value of the property does not exceed rupees one crore, and six per centum of the market value, in case the market value of the property exceeds rupees one crore, when the property is situated in the areas other than those included in clause (a) or clause (b). Provided that in any case when an agreement relating to sale is executed and registered with the ad valorem stamp-duty required under the proviso to article 5(d) and in furtherance of such agreement – (a) if the final conveyance is made within four years from the date of agreement or within two years from the date of completion/occupancy certificate issued by appropriate authority or from the date of procurement of electric connection, whichever is earlier, in favour of the original purchaser or in favour of the member(s) of his/her family, the market value of the property as assessed at the I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 14 time of registration of such agreement shall be treated as the market value of the property for the purpose of determination of chargeability at the time of registration of the final conveyance and the stamp-duty to be paid on such conveyance shall be the difference between the duty payable and the duty already paid under the proviso to article 5(d) at the time of registration of the agreement or rupees ten, whichever the greater; (b) if the final conveyance is made, beyond the time limit as specified in clause (a), in favour of the original purchaser or in favour of the member(s) of his/her family, the market value of the property shall be reassessed at the time of registration of such conveyance and the stamp-duty to be paid on such conveyance shall be the difference between the duty payable and the duty already paid under the proviso to article 5(d) at the time of registration of the agreement or rupees ten, whichever the greater: Provided further that the above provisions shall not be applicable, if the final conveyance is made in favour of any person or persons other than the original purchaser or the member(s) of his/her family. Explanation.- For the purpose of this article, the expression “member of a family” shall have the same meaning as defined in article 33. 16. It is pertinent to mention here that each and every document which has been produced before the Registration Authority and which is subject to stamp duty cannot be regarded as a transfer deed or conveyance deed. In this case, the stamp duty has been levied in respect of Joint Development Agreement at a fixed rate and the same has not been treated by Registration Authority/Stamp Duty Authority as ‘conveyance deed’ or to say ‘transfer deed’ of the property. Merely, because the JDA has been registered with I.T.A No.299/Kol/2022 Assessment year: 2014-15 Emporis Properties Pvt. Ltd. 15 the registering authority and stamp duty has been paid at applicable rates for JDA, that does not ipso facto attract the provisions of section 43CA of the Income Tax Act especially when neither as per the terms of the JDA the same can be treated as transfer of an asset, nor the registering authority/stamp duty authority has treated the JDA as transfer/conveyance. No profits have been earned by the assessee either actual or hypothetical in this case. 17. The Assessing Officer after examination of the facts and circumstances of the case and considering the reply of the assessee has rightly passed the assessment order, and the same in our view, is neither erroneous nor prejudicial to the interest of revenue. The impugned revision order, being bad in law, is hereby quashed. The appeal of the assessee stands allowed. Kolkata, the 22 nd September, 2022. Sd/- Sd/- [डॉÈटर मनीष बोरड /Dr. Manish Borad] [संजय गग[/Sanjay Garg] लेखा सदèय /Accountant Member ÛयाǓयक सदèय/Judicial Member Dated: 22.09.2022. RS Copy of the order forwarded to: 1. Emporis Properties Pvt. Ltd 2. PCIT, Kolkata-2 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches