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2019 (2) TMI 702 - AT - Income TaxComputation of long term capital gains - transfer of a capital asset - part performance of the contract - whether land in question stands within the definition of the term ‘transfer’ as envisaged in the provisions of section 2(47)? - possession of the property was under dispute and the assessee had obtained injunction from the Civil Court to stop any further transfer of the disputed property by the purchaser - Held that:- As per sale deed, sale consideration was to be paid as per Schedule A to the said agreement, for which postdated cheques were issued, which were to be encashed as per the conditions mentioned for encashment of cheques. As per clause 8 of the sale deed, the purchasers had given postdated cheques to sellers and it was their responsibility to see that the postdated cheques get cleared for payment. In view of the said cheques being stopped for payment and the dispute arising between the parties and even the dispute being who is in possession of the said property, reflects that even part performance of the contract has not been settled. In such circumstances, we find guidance from the ratio laid down by the Apex Court in CIT Vs. Balbir Singh Maini [2017 (10) TMI 323 - SUPREME COURT OF INDIA] that where the transaction has not materialized, then no profit or gain which arises from the alleged transfer of capital asset could be brought to tax under section 45 r.w.s. 48 of the Act. The grounds of appeal raised by assessee are thus, allowed.
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