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2019 (12) TMI 697 - HC - Income TaxReopening of assessment - Capital gain - transfer u/s 2(47) - effective date of transfer - Year of assessment - HELD THAT:- There was no effective adjudication as to what would be the effective date of transfer while deciding the correctness of the reassessment for the year 1996-97 while making protective assessment for the year 2001-02. Therefore, we fully agree with the view taken by the CIT(A) that there was no discussion on merits on the effective date of transfer. CIT(A), after elaborately considering the terms of agreement, was right in concluding that the transfer came to be actually completed during the financial year 1999-2000 and consequently, the CIT(A) was right in holding that the entire capital gains relating to 40% of the undivided share of land were subjected to tax for the assessment year 2000-01. The Tribunal re-examined the factual position and pointed out that the assessees had never admitted the capital gains on sale of 40% of undivided portion of the land, against which, consideration was held to be 60% of the constructed area. After noting that the assessee had shown the capital gains on the basis of individual sale deeds executed in favour of the nominees of the developer, it was held that it cannot be stated that the assessment order stood merged with the appellate order because the said issue was never raised by the assessee in order to be decided by the appellate authority. Assessees cannot plead a case that there has been a change of opinion and that the rules of consistency had been violated. The CIT (A) has elaborately dealt with this aspect and we concur with the view taken by the CIT(A), which was confirmed by the Tribunal. Thus, for all the above reasons, we find that the Assessing Officer has not traveled beyond the reasons, for which, the assessment was re-opened and there is no contra view of the Assessing Officer for two assessment years i.e., 1996-97 and 2000-01 as it is reiterated that at no point of time, there was discussion on the merits of the matter as to what is the actual date of transfer. Furthermore, we have also brought out the factual position to show that the assessee were inconsistent in their stand at different point of time. Thus, for the above reasons, we are of the view that the decisions relied on learned counsel for the appealant can be of no assistance to the case of the assessee . - Decided against the assessee
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