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TMI Blog2014 (3) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... t confer any right to assessee to transfer the property in favour of third parties - The right is acquired only after payment of entire amounts as per MOU - It would happen only with the fulfilment of terms and conditions under MOU which apparently occurred in 2004. Whatever right accrued to assessee under MOU accrued only with the complete payment of amounts as per the terms and conditions of MOU on 11/02/2004 - Till this right accrued to the assessee, he could not have ventured to transfer any limited right accrued to him under MOU, to third parties - In the absence of any regular document of conveyance in his favour or unless M/s.Damodar Sons & Co joined him in signing the documents of sale deed, he could not have transferred any righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. This appeal is directed against the orders of the Appellate Tribunal. The relevant year of consideration is assessment year 2005-2006. The appellant/assessee admittedly is a partnership firm. While filing the return of income for the above assessment year, he declared his income as Rs. 36,75,130/-. When return came up for scrutiny, assessment was proceeded under Section 143(3) of the Income Tax Act. It is also not in dispute that the return of the assessee indicated claim of long term capital loss of Rs. 45,51,944/-. The material placed before the Assessing Officer was that the assessee entered into a memorandum of understanding (for short Rs.MOU') with M/s.Damodar Sons Co and also their partners for acquisition of property on 22/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d short term capital gain at Rs. 7,41,400/-. Aggrieved by the same, the assessee went in appeal before CIT (Appeals). However, CIT (Appeals) confirmed the findings of the Assessing Officer. 5. Thereafter, the appellant/assessee approached the Appellate Tribunal. The Appellate Tribunal also treated the amount as short term capital gain from the transfer of property in question and came to the conclusion that it does not amount to long term capital gain. In other words, the Tribunal proceeded on the presumption that there is no dispute from either side so far as treating the transfer in question within the meaning of Section 2(47) of the Act. The Tribunal, further opined that as there was no dispute with regard to the occurrence of transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 3 crores to be paid to the owner of the property, no amount as such came to be paid. The said amount came to be paid only in the month of February 2004. It is not in dispute that in the month of February 2004, the funds that ought to be paid under MOU came to be transferred to the bank and obtained no dues certificate from the Central Bank of India. It is also not in dispute that on 25/02/2005 regular sale deed came to be executed by M/s.Damodar Sons Co along with the assessee in favour of third parties for a sum of Rs.4,25,00,000/-. The cost of acquisition of right acquired by the appellant/assessee that is right to get conveyance of property was computed at Rs.4,17,58,600/- as on 22/06/2001 which is also not disputed by the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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