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2009 (11) TMI 554 - AT - Income TaxCapital Gain - Assessee sold certain lands and it was claimed that since only an agreement to sell was entered in the year before us and the sale deeds were executed in piecemeal, therefore, capital gain tax arose from asst. yrs. 2002-03 to 2005-06 - The AO was of the view that the entire capital gain was taxable in asst. yr. 2002-03 - Above all, as per paras 6 and 8 of the sale agreement, the entire proceeds of Rs. 14 crores has to be paid to the assessee during the financial year relevant for the asst. yr. 2002-03 - Held that: transfer took place within the accounting period relevant to the assessment year under consideration as contemplated under s. 2(47)(v). Therefore, capital gain is attracted in this year only and the AO has rightly taxed the same in this year and the learned CIT(A) is neither factually nor legally correct to hold that the entire capital gain is not taxable within the year under consideration. - in view of Hon'ble Supreme Court in the case of ITO vs. Murlidhar Bhagwan Das (1964 -TMI - 49393)(SC) and on the same analogy, direction cannot be issued for subsequent years Deduction u/s 80HHC – Exclusion of Excise Duty of Rs. 47013935 from total turnover for the purposes of computation of deduction - Supreme Court in the case of CIT vs. Lakshmi Machine Works (2007 -TMI - 6557 SC) – Accordingly this issue was decided in the favour of assessee Since there was no difference of opinion on the point of taxability on capital gain in the year under consideration, the appeal of the Revenue on this point is accepted and the learned CIT(A)'s order in this regard is reversed and that of the AO order is restored – Appeal is partly allowed
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