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TMI Blog2007 (12) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the transfer has taken place only in the assessment year 1995-96 and not in the assessment year 1998-99. Our view is also fortified by the decision relied on by the learned counsel for the assessee and also decision of this Tribunal in the case of D.L. Nandagopala Reddy (Indl.) v. ITO [ 2003 (10) TMI 251 - ITAT BANGALORE-C] . Therefore, applying the same, we hold that if at all there is any capital gains arise, it is only in the year of transfer i.e., 1995-96 and not in the assessment year 1998-99. It is ordered accordingly. In the result, the appeal filed by the assessee is partly allowed to the extent stated above. - P. MOHANARAJAN AND K.K. GUPTA, JJ. G. Lakshminarasimhan for the Appellant. K.P. Rao for the Respondent. ORDER P. Mohanarajan, Judicial Member. - This real is by the assessee directed against the order of the learned CIT(A)-IV, Bangalore dated 25-10-2004. 2. We have heard both sides and reused the records. The assessee had raised the following effective grounds in their appeal : "That the CIT(A) erred in law and on facts in failing to annual the impugned assessment made on non-existing HUF. That the CIT(A) failed to not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as further contended that what remains to be assessed is only the status of individual and not the status of HUF. The learned counsel relied on the various decisions and also put forth and reiterated the submissions before the learned CIT(A) and the Assessing Officer. 6. On the other hand, the learned Departmental Representative narrated the facts and argued that the property in question was inherited by the assessee from his father and he also pointed out that the assessee himself had filed returns before the Assessing Officer only in the status of an HUF and therefore, the present argument of the assessee is that there was no HUF to be assessed, will not stand for scrutiny. He pointed out that for the assessment years 2000-01, 2001-02, 2003-04 and 2004-05, the assessee had filed returns in the status of an HUF under the PAN : ABRPV7534J and accordingly paid the tax due thereon. The assessee cannot now take a stand that the assessment made in the status of an HUF is incorrect. 7. We have heard the rival submissions and perused the records. It is pertinent to note that in all the aforesaid returns filed, the learned Departmental Representative pointed out that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, a joint development agreement was entered into between the assessee and the builder on 1-3-1995. The learned counsel for the assessee taking us to the joint development agreement relied on the terms in relation to permission to construction . He submitted that the assessee has to arrange for getting vacant possession of the tenanted portion from the tenants and deliver vacant possession of the entire schedule property to the developer for the purpose of development within August, 1995 and in that event, if the assessee fails to get vacant possession on or before 31-8-1995, the assessee has to pay interest thereon at 21 per cent per annum till the date of handing over possession. He further pointed out that the assessee had made the arrangement to make the possession vacant and deliver the vacant possession to the developer within the time stipulated under the joint development agreement and the assessee was paid certain advance amount towards this transaction. Therefore, he pointed out that since the transfer has taken place in the assessment year 1995-96. even if any capital gains has to be charged that will arise only in that year transfer and not in the present assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the necessary plans/drawings for construction of a multi-storeyed building and submit the same to the authorities for approval, besides the entire cost of the apartment has to be borne out by the developer on the schedule property including the area falling in the share of the assessee. According to the aforesaid agreement, in consideration, the assessee had agreed to transfer an undivided 66 per cent share of the property including the super built up area to the developer. The developer agreed to construct and deliver to the assessee 34 per cent of the super built up area in the apartment building to be constructed on the schedule property for the absolute use and benefit of the assessee free from all encumbrances. Further, the recital No. 5.2 clearly states that in consideration of the developer agreeing to deliver the assessee the constructed area as per para 5.1, the assessee had agreed to transfer/convey to the developer an undivided 66 per cent share in the schedule property. Therefore, from the aforesaid recital, it is apparent that the assessee had transferred 66 per cent undivided share of the schedule property mentioned together with his share for the purpose of construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give in return 40 per cent of the constructed area to the assessee i.e., equivalent to 15 flats, which was handed over to the assessee on 22-8-1994. The agreement was to transfer the interest and the right of the assessee in the land to the extent of 60 per cent. The transfer of the right and handing over the possession of the land to the builder is an act done by the assessee to extinguish his interest in the said land to the extent of 60 per cent. The word transfer includes extinguishment of interest of a property. The occupancy certificate was apparently given on 20-10-1993 and the salary certificate was given in the year 25-3-1994. The occupancy certificate was issued by the authorities of the Bangalore Municipal Corporation in recognition of the fact that the land is being developed to certain extent in 1993. The certificate that is issued invariably shows that the construction of the super structure was perhaps completed earlier to 1993 or at best in 1993. Therefore, it is apparently clear that the transfer of interest was effected earlier, based on which only the developer could have carried on the construction and could have obtained the occupancy certificate in 1993. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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