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2016 (2) TMI 32 - AT - Income TaxAddition of long term capital gain - CIT(A) deleted the addition held that no transfer involved within the meaning of section 2(47) r.w.s. 53(a) of the transfer of the property Act, as the assessee was in the possession of the property and the possession was to be given to the developer only upon the last payment and till then the assessee had a right to revoke the agreement, therefore, it was held that no capital gain arose to the assessee - Held that:- it can be concluded that the property was not transferred within the meaning of section 2(47)(v) of the Act r.w.s 53A of the transfer of Property Act. Even, the condition of the development agreement could not reach to finality due to non-payment of specified amounts (clause-9 of the agreement) by the transferee, due to which, agreement was unilaterally canceled, therefore, we find merit in the claim of the assessee. Our view is fortified by the decision in the case of General Glass Company Pvt. Ltd. vs DCIT (2006 (12) TMI 170 - ITAT BOMBAY-J) and Asian Distributors Ltd. (2000 (1) TMI 990 - ITAT MUMBAI) wherein, it was held that where the payment of balance consideration within stipulated time is essence of the agreement of sale and such payments are not made within time by the transferee, such contract/agreement does not confer any righty on the transferee as envisaged u/s 53A of the transfer of the Property Act along with the provisions of section 2(47)(v) of the Act. Since the possession of the property was to be given to the developer only upon fulfillment of the conditions of the agreement i.e. last payment, therefore, there is no transfer in terms of section 2(47)(v) of the Act, thus, we affirm the stand of the ld. Commissioner of Income Tax (Appeals). - Decided in favour of assessee
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