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2014 (3) TMI 575 - HC - Income TaxAssessment of capital gains - Whether in the light of section 2(47)(v) read with section 45, the Tribunal is right in holding that the capital gains assessment made for the assessment year is not sustainable in law – Held that:- The Tribunal did not correctly appreciated the question on hand - When transfer is defined under the Income Tax Act and it includes a transaction involving possession to be handed over in part performance of a contract in the nature referred to in Section 53A of Transfer of Property Act, it amounts to transfer. The terms and conditions of the agreement clearly indicates that the intention of the parties is to sell the property as such to the buyer, or their nominees and a power of attorney is given to enable the buyer to sell the undivided share of land in favour of purchasers of apartments to be constructed by the buyer of the land - the assessee themselves executes the sale deed after several years on the request of the builder - the actual transfer takes place between the assessee and the builder and it is thereafter the builder transfers possession to the purchaser of the apartments - Capital gains is to be computed at the time when the transfer takes place which has to be during the assessment year when a substantial portion of the amount was received by the assessee, that is when Rs.3.81 crores was received by the assessee during the assessment year 2004-05 – thus, the order of the Tribunal set aside - Decided in favour of Revenue. Entitlement for exemption u/s 11(1A) of the Act – Held that:- The Assessing Officer granted exemption u/s 11(1A) of the Act for the investment made under Section 11(1A)(a)(ii) - It is contented that in subsequent years also, depending upon the amount received, appropriate investments have been made by the assessee - the order passed by the Assessing Officer has to be confirmed - The AO is directed to pass appropriate orders after considering whether the assessee is entitled for any further benefit with reference to the claim of the assessee under Section 11A of the Act.
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