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2011 (10) TMI 682 - AT - Income TaxCapital gain - "transfer" of property under the Development Agreement - Held that:- The agreement in question does not establish that a transaction of sale of property was completed in terms of provisions of Section 2(47)(v) of the I.T. Act read with Section 53A of the transfer of Property Act as neither the entire consideration was paid nor the possession of the property was handed over to the vender, and so, the capital gain worked out by the A.O and added to the income of the assessee in the A.Y. was not justified. The amount received out of the agreed consideration during the year, at best can be treated as advance received towards the agreed consideration of the transaction. It is also an established proposition of the law that the A.O is required to make just and proper assessment as per the law based on the merits of the facts of the case before it. Just assessment does not depend as to what is claimed by the assessee but on proper computation of income deduced based upon the provisions of law. An A.O. can not allow the claims of the assessee if the related facts and provisions of law do not approve it and similarly it is also the duty of the A.O to allow even those benefits about which the assessee is ignorant but otherwise legally entitled to. The issue raised in Ground No. (1)(b) is thus decided in favour of the assessee.
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