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2016 (4) TMI 465 - AT - Income TaxRectification of mistake - capital gain computation - whether there was no sale of property by way of the Developoment agreement? - Held that:- A bare reading of the order which is sought to be rectified it clear that the complete control over the properties was given to the developer. Consideration of the transfer of the rights is fixed and the terms of payment is also fixed. No material is placed before this Tribunal, that the parties did not act upon the development agreement. The only grounds taken by the Revenue for seeking recalling the order is that the assessee had converted the property in question as stock-in-trade and such stock-in- trade was during the block period. We are unable to agree with the contention of the Sr.DR that there was no sale of property by way of the Developoment agreement. The Sr.DR has placed section 45(2) of the Act to buttress the contention that the assessee ought to have offered for taxation of gain arising out of transfer of the property during block period. In our considered view, the transfer of property was complete by way of the development agreement. The Revenue has not disputed the fact that the assessee had given possession of the property to the developer even if it is assumed that it is in nature of stock-in-trade, there is a change of hands as the assessee had given possession of the property to the developer in consideration as described under the development agreement. It is also not disputed that a sum of ₹ 1,00,000/- was paid to the assessee by the developer and rest of the sale consideration was to be paid into installments. Keeping these facts, we are of the considered view that modifying or recalling the Tribunal’s order dated 04/04/2014 would tantamount to reviewing of the order. Therefore, the miscellaneous application filed by the Revenue is devoid of any merit.
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