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2015 (9) TMI 267 - AT - Income TaxReopening of assessment - Held that:- In the present case, on the basis of the clause no. 2 of the Supplementary Agreement dated 29.04.2002, cogent material was available before the A.O. to form prima facie belief about escapement of income in the present year. It is not relevant that in spite of this material, it was held by Hon’ble Allahabad High Court in assessee’s own case for assessment year 2006-07 [2014 (12) TMI 686 - ALLAHABAD HIGH COURT ] on the basis of circumstantial evidence that possession was in fact handed over by the assessee in F.Y. 2001 – 02 relevant to A.Y. 2002 – 03. Be that as it may but in view of this cogent material available on record and also in view of this fact that even the judgment of Hon’ble High Court about handing over of the possession in F.Y. 2001 – 02 is on the basis of presumption after considering various circumstantial evidences, it cannot be said that there was no valid basis for reopening. In view of above discussion, we do not find any infirmity in the order of CIT (A) on this issue. Accordingly, these grounds of the assessee are rejected. Capital gain accrue or arise or not in the present AY or not - Transfer u/s 2(47) - Held that:- In the present case, the assessee has not offered the capital gain in any year i.e. A.Y. 2000 – 01 being the year of initial agreement or in A.Y. 2002 – 03 being the year in which possession was given as per the assessee and transfer has taken place as per the judgment of Hon’ble High Court [2014 (12) TMI 686 - ALLAHABAD HIGH COURT ] or in A.Y. 2003 – 04 i.e. the present year when supplementary agreement was executed or in A.Y. 2006 – 07 when completion agreement was executed. This is also very important that even as per the judgment of Hon’ble High Court, this does not come out that there is any clear cut evidence about handing over of possession in F.Y. 2001 – 02 relevant to A.Y. 2002 – 03 but the claim of the assessee was accepted by Hon’ble High Court on the basis of surrounding circumstances. In view of these facts, we feel it proper to give consequential direction to the A.O. to tax this capital Gain in A.Y. 2002 – 03 being the year in which the transfer has taken place as per the judgment of High Court. Accordingly Assessing Officer is directed to compute the capital gain in assessment year 2002-03 in accordance with law and tax the same. - Decided in favour of assessee.
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