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TMI Blog2013 (8) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... re us with a delay of 5 days. To this effect, the assessee has filed petition for condonation of delay and executed an affidavit affirming the reasons therein for delay in filing the appeal. After hearing the parties, we condone the delay of the said five days and admit the for adjudication. 2. The three assessees, namely, Shaik Md. Abdul Waheed, Shaik Mohd. Abdul Quadheer and Shaik Md. Abdul Quayyum are brothers who entered into development of property. 3. The assessees filed return of income admitting 'NIL' income under the head 'capital gains'. The assessment was reopened and completed u/s 143(3) by making an addition towards long term capital gains. The CIT-VI invoking powers u/s 263 has passed orders wherein besides giving directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng through a development agreement. The CIT(A) ought to have seen that by the time he was deciding the issue the entire capital gain assessable in accordance with the development agreement was held by the Hon'ble ITAT, Hyderabad as assessable for the assessment year 1997-98 and, therefore, no part of the capital gain is assessable for the assessment year under consideration. 4. The CIT(A) ought to have decided the appeal on merits by considering the fact that the capital gain is not assessable for the assessment year 2002-03 when it was assessed for the assessment year 1997-98 and that the amount was actually determined for the assessment year 1997-98 which cannot be assessed again now. 5. The CIT(A) ought to have seen that the determinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving gone through the development agreement, observed that possession of the land was given to the builder in the assessment year the consideration i.e. 40% of the constructed area for surrendering 60% of the land was passed to the assessees. In addition to that, as per the development agreement, an advance also received by the assessees. He also observed that builder obtained loan of Rs. 1.15 crores by offering 60% of share of land to the prudential cooperative bank as security. According to the AO, there was transfer of land to the extent of 60% in lieu of consideration of 40% of constructed area. Further according to him, as per the development agreement dated 14/05/1996, there was a transfer on 14/05/1996 itself and the assessee is liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the correct principles of law and this judgment will prevail over the order of the Tribunal relied by the learned counsel for the assessee" 9. The learned counsel submitted that the matter has already been decided by the Tribunal that capital gain is assessable in the assessment year 1997-98 and not in the assessment year 2002-03. 10. The learned counsel also submitted that if the CIT(A) had given the assessees an opportunity to represent their cases the matter would have been resolved easily. 11. We have heard both the parties. We are of the opinion that since the issue of entire capital gain assessable in accordance with the development agreement was held by the Tribunal, Hyderabad (supra) as assessable for the assessment year 1997- 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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