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TMI Blog2008 (1) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered to M/s. Kumaon Construction Ltd. at the relevant time. It is not clear as to how many plots stood conveyed and how many plots remained. In the absence of basic facts which are primary facts, we are of the view that the Tribunal could not have allowed the appeal in favour of the assessee. What is the indexed cost of each plot is not mentioned. Unfortunately, none of the aspects have been considered even by the High Court in its impugned judgment. Hence, we remit the matters to the Tribunal for fresh consideration in accordance with law. We make it clear that the assessee shall file all relevant documents including conveyance(s) in favour of the nominees of M/s. Kumaon Construction Ltd., the relevant plan indicating sub-division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement for sale. In his reply, assessee submitted that he has not given possession of the entire area of 7,000 sq. ms. of vacant land; that he continues to be in possession of the land not transferred and, therefore, section 2(47)( v) was not applicable. The Assessing Officer did not agree with the contention of the assessee and accordingly worked out capital gains liability on the entire consideration of ₹ 25 lakhs principally on the ground that major portion of total land has already been sold and, thus, a part of contract was performed and, accordingly, the case stood covered by section 53A of the Transfer of Property Act. This view was confirmed by the CIT(A). 6. The assessee then preferred second appeal before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recitals mentioned in the sale deeds. 9. Briefly, it may be stated that in order that the case would fall under the extended meaning of the word transfer , possession is essential element to be considered. That is the crux of the matter. 10. In the present case, no finding qua possession has been recorded by the Tribunal. It may also be noted that there is nothing on record to indicate the name of the applicant who had applied for sub-division. No revenue or municipal records have been produced which could have indicated as to whether the area admeasuring 7,000 sq. ms. or a part thereof stood conveyed and delivered to M/s. Kumaon Construction Ltd. at the relevant time. It is not clear as to how many plots stood conveyed and how man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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