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2008 (6) TMI 381 - AT - Income TaxComputation of capital gain - Income derived from salaries, dividend etc. - CIT(A) held that the assessee and other members of the society had transferred a capital asset within the meaning of section 45 and therefore, capital gain is chargeable thereon. HELD THAT:- The admitted facts of the case under consideration are that the owner of the property i.e., land and buildings/flats is Jay Temple Co-op. Hsg. Soc. There is an agreement between the society and developer, M/s. Hetali Estate and Properties (P.) Ltd. The developer was in possession of T.D.R. and was looking out for properties where on the developer can utilize the T.D.R. The society agrees to grant permission to the developer on certain terms and conditions. The members of society including the assessee received some amount. The case of the revenue is that the society through its members had transferred the development rights and such rights are subject to capital gain u/s 45 of the Income-tax Act. We find that the assessee was neither holding any capital asset nor the same has been sold, exchange or relinquish of the assets. In other words there is no transfer of capital asset in accordance with Income-tax Act. We therefore of the considered view that section 45 is not attracted. We hold that the assessee is not liable to capital gain u/s 45 of the Income-tax Act. In the result, the appeal of the assessee is allowed.
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