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TMI Blog2013 (9) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... o be sold through the builder. The builder was to get 65% of the built up area along with undivided 65% interest on the land – Contended that since assessee had handed over the possession of the plot to the builder in pursuance of an agreement for transfer i.e. in part performance of a contract referred to in Section 53A of the Transfer of Property Act, the transfer took place during the previous year itself in view of the provisions of Section 2(47) of the Act – Held that:- capital gain can be charged only on receipt of the sale consideration and not otherwise. How can a person pay the capital gain if he has not received any amount - In the instant case, the assessee has honestly disclosed the capital gain for the assessment year 1998-99 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer took place after March 1997, only, on the basis of a certificate dated 29.08.2000 issued by the builder to this effect, in total disregard to the provisions of Registration Act, 1908. 3. Whether on the fact and circumstances of the case Income Tax Appellate Tribunal was right in law in holding that the impugned property had been converted into stock in trade and thus CBDT Circular No. 791 was applicable, without rebutting the merits of the finding of facts recorded by the Assessing Officer in this respect". The brief facts of the case are that assessee is a widow and 81 years old lady. The assessee is the owner of the premises know as "Dady Villa", situated at R.F. Bahadurji Marg (Meera Bai Marg), Lucknow. On 29.12.1994, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude rental income at Rs.37,776/- and long term capital gains at Rs.24,61,147/- and made the addition for the long term capital gain. However, the same was deleted not only by first appellate authority but also by the Tribunal. Being aggrieved, the Department has filed the present appeal. With this background, Sri D.D. Chopra, learned counsel for the Department has justified the order passed by the Assessing Officer. At the strength of written note, he submits that the Circular No. 791 relied upon by the Tribunal is not at all applicable to the facts of the case because the circular was essentially meant for tax exemption on the sale of capital assets converted into stock in trade only in reference to its qualifications for deduction unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been passed ex-parte under Section 144. If the return was filed, assessment order could have been framed only under Section 143(3) of the Act. Thus, the Assessing Officer has framed the assessment order under the contradictory sections, which cannot be held as a valid assessment order. So, the CIT(A) has cancelled the assessment order. The Tribunal has deleted the addition on merit. From the record, it appears that the assessee has paid capital gain since the assessment year 1998-99 to 2000-01, as mentioned in the impugned order. We have examined the agreement, where Clause 3 14 states that :- "3. That by the development of this piece of land and built-up area of about 1670.3147 Sq.Meters. The 'SECOND PARTY' will give 35% of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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