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2017 (10) TMI 230 - ITAT MUMBAICapital gain - whether no “transfer” of a capital asset so as to trigger the provisions of Capital Gains tax? - contention of the assessee is that transfer of the flat jointly owned by him with his wife in Vandana Co-operative Housing Society, Andheri, Mumbai has not taken place in the instant year - Held that:- The plea sought to be raised by the assessee goes to the root of the jurisdiction of the Assessing Officer to assess the Capital Gains in the instant assessment year. Notably, the import of the expression “transfer” for the purposes of Sec. 45(1) of the Act is required to be adjudicated at the threshold itself, before proceeding to tax the income from Capital Gains. Since this plea was hitherto not before the lower authorities and, it being pertinent to arrive at the correct tax-liability of the assessee, we deem it fit and proper to admit such plea and restore the matter back to the file of the Assessing Officer who shall consider the plea of the assessee afresh, as per law. Needless to mention, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard and only thereafter pass an order on the entire aspect relating to income under the head Capital Gains in accordance with law.
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