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2017 (11) TMI 1060 - ITAT MUMBAITaxability of the transaction with the builder - Capital gain computation - transfer u/s 2(47) - three flats stated in the agreement have yet not been given by the builder and the likelihood of getting it is also doubtful - LR has pointed out that there does not appear to be a ‘transfer’ u/s 2(47) inasmuch as the absence of taking possession by the Transferee is quite significant, and shows that the transferee is not performing his part of the contract, and thus there is no transfer to workout capital gains; and the amount received is merely in the nature of advance - Held that:- The aforesaid plea being set-up by the assessee requires a factual appreciation of the affairs, which could appropriately be undertaken at the level of the Assessing Officer. Notably, in the orders of the authorities below, there are significant gaps in culling out the proper fact-situation. For instance, the entire terms and conditions of the Conveyance Deed dated 10.08.2008 between the assessee and her family members and M/s. Saroj Associate, the builder on the other hand have also not been culled out and to compound the matters further, even before the Tribunal the copy of the agreement has not being filed. Therefore, in my view, it would be appropriate if the matter is revisited by the Assessing Officer who shall consider all the facts which have a bearing on the tax liability of the assessee vis-a-vis the transaction with the builder with respect to the Deonar property, and decide afresh. There is another fallacy which is quite apparent and needs to be examined. Pertinently, assessee had pointed out that the three flats have not been received and, therefore, the stated value of consideration was not crystallized. At this stage, the stated consideration was required to be crystallized, and only then it could be compared with the value adopted by the Stamp Duty Valuation authority for the purposes of section 50C of the Act. However, the Assessing Officer adopted the Stamp Duty valuation of the entire property; and, the same ought to have been appropriately dealt with by the lower authorities. However, I find that it has also been given a go-by and the CIT(A)who has upheld the action of the Assessing Officer in adopting the Stamp Duty valuation as the full value of the consideration for the purposes of computing Capital Gains. For all the above reasons, deem it fit and proper to set-aside the order of the CIT(A) and direct the Assessing Officer to consider the issue
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