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2016 (2) TMI 1326 - AT - Income TaxRectification of mistake u/s 154 - amount received against TDR/FSI as a capital receipt which is not chargeable to capital tax - HELD THAT:- Shri Bharat R. Patel who had claimed the sale of development right as a LTCG which was denied to him by the AO and treated the same as income from other sources, however, the same was allowed by CIT(A) in its order dated 30.03.2010. The assessee claimed the amount received against TDR/FSI as a capital receipt which is not chargeable to capital tax. However, the AO treated the same as income from other sources by concluding that it is not a transfer falling within the provision of section 45 of I.T. Act. Though the assessee and his brother received the amount from builder but since beginning both the brother set up their different claim in respect of amount received under TDR agreement for the purpose of assessment. The case of assessee was considered by CIT(A) on which conceivably two opinion are available. Since Ld. CIT(A) has taken one of the possible views, his order cannot said to suffer from mistake apparent from record. CIT(A) while exercising the power u/s. 154 of the Act are ignored the principle and basic scope of rectification of order as discussed in paras 5 to 8 supra. Hence, the order dated 20.07.2010 passed by CIT(A) is not sustainable under the scrutiny of law and the same is set-aside.
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