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TMI Blog2012 (6) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... ER A.K. Garodia, Accountant Member This appeal by the revenue is directed against the order of CIT(A)-II Baroda dated 26.03.2002 for the assessment year 1997-98. 2. The grounds raised by the revenue are as under: "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs. 26,80,492/- made on account of short term capital gain. On the facts and in the circumstances of the case and in law the Ld. CIT(A) ought to have upheld the order of the A.O." 3. The brief facts of the case are that it is noted by the A.O. in the assessment order that the assessee has declared an income of Rs. 1,45,520/- towards short term capital gain on sale of land. The A.O. has noted the computation of this income submitted by the assessee in the computation of income as sale price of Rs. 1,91,744/- less purchase cost Rs. 46,224/- and net short term capital gain of Rs.1,45,520/-. He further noted that a copy of development agreement dated 30.04.1996 has been filed along with the return of income. He also noted that this agreement is drawn up between the assessee and m/s. Deep Developers for development and sale of 510 sq. mtrs. land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,45,520/- declared by the assessee in the return of income. Being aggrieved, the assessee carried the matter in appeal before Ld. CIT(A) who has held that the addition made by the A.O. on account of capital gain on sale of land is not justified and he deleted the same. Now, the revenue is in appeal before us. 4. It is submitted by the Ld. D.R. that in the present case, Section 2(47)(v) is applicable along with Section 53A of the Transfer of Property Act. He also submitted that possession was given on 30.04.1996 and almost full payment was also received in the present year itself and hence, these sections are applicable and therefore, the income was rightly taxed by the A.O. in the present year. He supported the assessment order. 5. As against this, Ld. A.R. supported the order of Ld. CIT(A). He also submitted that the written submissions dated 23.02.2009 were submitted earlier before the tribunal and the same should be considered. He also drawn our attention to page 14 of the paper book II filed by the assessee and submitted that on this page, the assessee has submitted the details of year-wise capital gain disclosed by the assessee which includes Rs. 1,45,520/- in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income tax Act, 1961: "Any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of property Act, 1882 (4 of 1882); Section 53A of TPA: Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contact and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that were there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the development agreement, only Rs. 33 lacs were received up to 31.03.1997 and the same was shown by the assessee as advance received from the developer and the balance amount of Rs. 1,44,800/- was received by the assessee on 01.12.1997 from the developer. It was also submitted that the developer M/s. Deep Developer was given permission to enter into the land owned for the development of the property as license granted u/s 52 of the Easement Act and the possession was not given to the developer as a purchaser of the land as the land was never sold to them. We do not find any merit in this contention because we have seen that as per the development agreement, the price of the land was fixed and almost entire payment was received and possession was given in the present year and hence, it cannot be said that the land was given to the developer for development only and not on account of sale of land. Regarding this submission that capital gain as declared in the subsequent year, we would like to observe that correct income has to be taxed in correct hands in correct year and this fact cannot be relevant for deciding this issue of the present year that in the subsequent year, income wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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