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TMI Blog2011 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... al asset, ignoring the f act that the share of the assessee in the total FSI available to the CHS is the capital asset held by the assessee. 3. The ld. CIT(A) erred in holding that the capital asset has not been sold exchanged or relinquished, ignoring the f act the assessee's share in the total FSI avail able to the CHS has been sold to the developer i.e. New India Construction Co. and the Hemandas J. Pariyani consideration of Rs. 5,87,565/- is towards the sale of this capital asset. 4. For these and other reasons that may be urged at the time of hearing, it is requested that the order of the CIT( A) be quashed and that the AO restored." 2. Briefly the facts of the case are that the assessee is a registered member o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which had been extracted by the CIT(A) in his order at page 2. After considering the submissions of the assessee, the CIT(A) directed the AO not to charge capital gains tax on the compensation Hemandas J. Pariyani received by the assessee even on protective basis by holding as under:- "On caref ully considering the f acts of the case as well as going through the orders of Hon'ble ITAT particularly in the case of Deepak S. Shah Vs. ITO, Ward 20(2) which is f ound to be a latest decision dated 16/06/2008, wherein on the identical set of f acts and circumstances and af ter thoroughly examining the issue and conditions laid down as per section 45 of the IT Act as well as the def inition of capital asset as per section 2(14) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2005] 2 SOT 422 (Mum.) . 6. We have heard the learned representatives of the parties and perused the record. We find that the issue in dispute is covered by the decision of ITAT in the case of Jethalal Vs. DCIT (supra) wherein the ITAT held that "transf erable development rights granted by the Development Control Regulations f or Greater Mumbai, 1991, qualif ying Hemandas J. Pariyani for equivalent f loor space index having no cost of acquisition, sale thereof does not give rise to taxable capital gains". Since the facts of the case under consideration is identical to that of the decision of the ITAT in the said case, we respectfully follow the same and in the light of that we uphold the order of the CIT(A) in directing the AO not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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