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2018 (4) TMI 1529 - AT - Income TaxReopening of assessment - LTCG addition - whether the transfer is completed - Held that:- the assessee’s have never objected to the reopening of the assessment either before the AO or before the CIT (A). The assessee’s have also not raised any grounds of appeal in writing much less the additional grounds of appeal against the reopening of the assessment. Rule 27 of the ITAT Rules, only permits the respondents to support the orders appealed against any of the decision against him and Rule 29 also provides that the parties to the appeal shall not entitled to file additional evidence either oral or documents before the Tribunal unless it is required by the Tribunal or if the Income Tax authorities have decided the case, without giving sufficient opportunity to the assessee, to adduce evidence either on points specified by them or not specified by them Tribunal may allow such documents to be produced or witnesses to be examined or affidavit to be filed. The assessee’s are the petitioners/appellants before us and not the respondents. Further, they cannot raise a ground orally at the time of final hearing, as it would be against the principles of natural justice as the Revenue would not be in a position to defend itself again without proper records. In view of the same, we are not inclined to accept the argument of the assessee against the reopening of the assessment u/s 148 of the Act. As regards the LTCG being brought to tax by the AO, we find that the vendee himself has given a declaration, by a registered deed, that the sale deeds have been executed only in order to enable him to safeguard the properties and to settle all the legal disputes and that they shall be cancelled thereafter. In fact the assessee’s have also filed the suits for cancellation of the sale deed which are pending before the Hon'ble Civil Courts. The transfer is not complete and the capital gain therein will not arise. However, the outcome of the civil suits will determine the question of transfer and if the Civil Courts hold the transfer to be final, then in that year, the assessee’s will be liable to pay the tax on the capital gain. In view of the same, we are inclined to allow the assessee’s appeals with the above observations.
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