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2016 (3) TMI 638 - AT - Income TaxComputation of long term capital gain - sale of immoveable land bearing Khasra No.1583 Ka, Rakba 1.986 Hectare and the other Khasra No.1584 Kha, Rakba 0.101 Hectare, totaling 2.087 Hectare situated at village Aurangabad Khalsa, Tehsil and Zila Lucknow - Held that:- The onus is upon the assessee to establish through documents that the impugned land was purchased by the assessee and his wife. The, onus is also upon the assessee to establish that the other land bearing Khasra No.1584 ख for land measuring 0.101 hectare is still owned by them or it was also disputed by some other party as the order of the Tehsildar talks about the land bearing Khasra No.1584 क for the land measuring 1.986 Hectare. It is also for the assessee to establish as to whether he has refunded the entire amount to M/s Sanskar Foundation to whom he sold the land. If not, is there any claim raised by them for refund of the sale consideration on the ground that the assessee did not own the land, pending before any of the judicial forum. If no claim in this regard is raised by M/s Sanskar Foundation and the assessee has not refunded the sale consideration to M/s Sanskar Foundation, having realized that he is not the owner of the land, the assessee would be responsible to pay tax on the income realized on this alleged transfer. According to us, if provisions of section 50C of the Act cannot be invoked on account of illegal transfer of land for want of legal ownership of the land, the difference in investment and sale consideration would be treated as income from other sources of the assessee. As per the sale deed, the assessee has received sale consideration on 3.2.2006 and till dateaccording to the ld. counsel for the assessee, no claim is raised by M/s Sanskar Foundation, therefore, the difference in investment and sale consideration would be the income from other sources, as the so called buyer, M/s Sanskar Foundation cannot recover the said amount, as it has already barred by limitation. All these aspects were neither examined by the Assessing Officer nor by the ld. CIT(A). Therefore, we are of the view that these aspects should be examined by the Assessing Officer after affording proper opportunity of being heard to the assessee. Accordingly, we set aside the order of the ld. CIT(A) and restore the matter to the Assessing Officer to re-adjudicate the issue in terms indicated above. Appeal of the assessee as well as the Revenue are allowed for statistical purposes.
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