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2015 (7) TMI 520 - AT - Income TaxCapital gain - transfer of immovable property without any written contract - whether there is a transfer of capital asset during the year in terms of section 2(47)(v) as alleged by AO? - CIT(A) deleted he addition - Held that:- Thus, it is patent and obvious, handing over possession of property by assessee to the income tax department is by virtue of an unilateral act of the state govt. over which assessee has neither any say nor any control but at the same time it has to comply to the same. In the aforesaid facts and circumstances, it cannot be said that the basic condition of section 53A of T.P. Act in the present case has been fulfilled. Moreover, consideration payable towards transfer has also not been quantified till date. Though, it is provided in GOMS that a separate order would be passed determining the cost of the property and adjusting the same towards loan payable by assessee to the state govt., but, as yet no such order has been passed by the state govt. In the aforesaid facts and circumstances, in absence of written contract, quantification of consideration to be paid, it cannot be said that there is a transfer in terms of section 2(47)(v) of the Act. It is clear from the GOMS issued by govt. that the cost of land will be determined by the state govt. through a separate order. However, as yet no order has been passed by the govt. determining the cost of land. It is also evident from the statement of audited accounts of assessee, though, assessee has credited the market value of the property to P&L A/c, but, it has been shown as receivable and has not been adjusted against loan repayable to the state govt. In the aforesaid facts and circumstances, in our view, in absence of determination of cost of land by state govt., no capital gain can be computed in the impugned AY. Ld. CIT(A), in our view, is therefore justified in deleting the addition made by AO on account of long term capital gain. - Decided in favour of assessee. Deduction claimed on payment of VRS - direction of ld. CIT(A) amounts to setting aside the issue to AO - Held that:- we are of the view that ld. CIT(A) instead of directing AO to verify assessee’s claim and decide the issue, should himself have decided the issue as direction of ld. CIT(A) amounts to setting aside the assessment order, which he is not authorized to do under the statute. If at all ld. CIT(A) wanted to verify any factual aspect, he could have called for a remand report from AO and accordingly decided the issue himself. In the aforesaid view of the matter, we are inclined to set aside the order of ld. CIT(A) on the issue and remit the matter back to his file for deciding the issue afresh on merit after due opportunity of being heard to assessee. If necessary ld. CIT(A) may call for a remand report from AO before deciding the issue. - Decided in favour of assessee for statistical purposes.
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