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2016 (9) TMI 749 - AT - Income TaxCapital gain on the transfer of plot - year of assessment - Held that:- The issue shall have to be determined on the anvil and touch stone of section 2(47)(v) of the Act r/w s. 53A of the Transfer of the Property Act, 1882. The assessee having returned capital gains (for the current year) despite having not received her share even during the current year is thus aware that the income by way of capital gains is assessable on accrual basis, stating resolution of the legal dispute during the current year as the reason for considering the same as having accrued/arisen thereat. If not during the current year, when did the same get resolved and, further, what is the basis or the evidence to consider it as so? No details with regard thereto stand furnished at any stage; the assessee ‘changing’ her stand to claim that no gain in fact arose during the current year. The complete details need to be brought forth, and its’ impact considered in light and in the context of the provisions of law, while there is nothing on record toward the same, with, rather, even most of the ‘facts’ stated by the ld. counsel being not borne out by the record. Then there is the question of whether the transferee has performed or was willing to perform his part of the contract (sec. 53A of the TP Act). If so, why is it that the payment was withheld, and for years, or given, as stated, to the assessee’s brother-in-law, and when? Answers to these and other related questions would decide whether the capital gain had indeed arisen to the assessee during the relevant previous year and, if not, when. The matter is accordingly restored to the file of the assessing authority for fresh adjudication with regard to whether any part of the capital gains on transfer of plot no. 99 arise to the assessee during the relevant year. The AO shall decide issuing definite findings of fact.
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