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2013 (1) TMI 546 - HC - Income TaxRelinquished of ownership rights in Plot sold - Memorandum of Understanding (MoU) with two developers for the purchase of 500 sq mtrs. of land or a residential flat not exceeding 300 sq mtrs paying a sum of Rs. 68,00,000 when MOU entered and the balance in two installments - supplementary MoU by which plot no. A-1 measuring 500 sq mtrs was allotted to the Petitioner - reopening of assessment - Long term capital gain v/s Short term capital gain - Held that:- It is clear from the record that by way of first agreement which was entered in the year 1990, the assessee had acquired right in the property and this right he has relinquished in favour of new vendee in 1995. Thus, in considered opinion that the assessee is liable to long-term capital gain and not to short term capital gain. Under these circumstances, no infirmity in the impugned order passed by the Tribunal and since it is a finding of fact given by the Tribunal that the assessee acquired right in the property at the time of execution of first agreement in the year 1990 and had relinquished his rights in favour of new vendee in 1995, no substantial question of law arises for our consideration. This Court is in agreement with the above reasoning as in the present case, the Petitioner had acquired right to a specific plot, furthermore, the interest was in the nature of an actionable claim, which could be asserted in a legal proceeding. The tax authorities had issued a no objection certificate in respect of the transaction. In these circumstances, the reporting of the amount received as capital gains was correct. Moreover, Calcutta Discount Ltd. vs. ITO, (1960 (11) TMI 8 - SUPREME COURT) is an authority for the proposition that as long as the assessee makes a full and true disclosure of the income, the fact that it might claim that as falling under one head which is ultimately not accepted, would not make it a wrong disclosure, or suppression. The question as to the proper assessability of any amount, to income tax falls within the domain of the tax adjudicator - writ petition is entitled to succeed & the reassessment proceedings are hereby quashed - in favour of assessee.
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