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2007 (12) TMI 323 - AT - Income TaxComputation Capital gain - transfer property under development agreement - selection of assessment year - HELD THAT:- The developer agreed to construct and deliver to the assessee 34 per cent of the super built up area in the apartment building to be constructed on the schedule property for the absolute use and benefit of the assessee free from all encumbrances. Further, the recital No. 5.2 clearly states that in consideration of the developer agreeing to deliver the assessee the constructed area as per para 5.1, the assessee had agreed to transfer/convey to the developer an undivided 66 per cent share in the schedule property. Therefore, from the aforesaid recital, it is apparent that the assessee had transferred 66 per cent undivided share of the schedule property mentioned together with his share for the purpose of constructing a super built multi-storeyed building. This transaction had taken place in the year 1995-96. In the present case, admittedly, the transfer has taken place only in the assessment year 1995-96 and not in the assessment year 1998-99. Our view is also fortified by the decision relied on by the learned counsel for the assessee and also decision of this Tribunal in the case of D.L. Nandagopala Reddy (Indl.) v. ITO [2003 (10) TMI 251 - ITAT BANGALORE-C]. Therefore, applying the same, we hold that if at all there is any capital gains arise, it is only in the year of transfer i.e., 1995-96 and not in the assessment year 1998-99. It is ordered accordingly. In the result, the appeal filed by the assessee is partly allowed to the extent stated above.
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