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2017 (11) TMI 708 - AT - Income TaxCapital gain on alleged transfer of two immovable property owned by the appellant - as per assessee he has received mere advance against the development agreement whereas no possession has been handed over by him since consent of the respective owners could not be obtained till date and suits in this regard and pending before appropriate courts - Held that:- Transfer of possession is one of the primary condition so as to attract the provisions of Section 53A and consequently being covered u/s 2(47)(v). The assessee has all along contended that the possession of the properties was never handed over to the developer which has been reiterated before us also. The Ld. AR has placed certain additional evidences in the form of Letter from the Developer and copies of suits filed by the developer before appropriate court. We find that the fact that whether the assessee has handed over the possession to the developer or not has nowhere been examined by any of the lower authorities. Hence, on the fact of the case, we remit the matter back to the file of Ld. AO for adjudication. If the transaction is found chargeable to tax, the computation thereof shall be computed in terms of Section 48 and other provisions, as applicable. Needless to say, adequate opportunity of being heard shall be granted to the assessee, who in turn, is directed to substantiate his stand in this regard. Resultantly, assessee’s appeal stands partly allowed for statistical purposes
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