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2020 (1) TMI 299 - HC - Income TaxReopening of assessment u/s 147 - Determining the capital gains tax - Determination of the value of immovable property - handing over possession of the property - market value of the property or actual sale consideration whichever is higher was required to be adopted - HELD THAT:- Information which necessitated the AO to reopen the assessment had been found namely the communication received from the office of Inspector General of Stamps and Registration, Bangalore addressed to Commissioner of Income Tax, Bangalore which was forwarded to the jurisdictional Assessing Officer by communication dated 09.02.2012 as well as to the Directorate of Income Tax (Intelligence) vide letter dated 01.02.2012. This material which was available before the Assessing Officer had persuaded him to form an opinion that income chargeable to tax had escaped from assessment. This finding would not give rise for us to formulate substantial question of law as sought for in the appeal memorandum. Clause 6 of the said agreement would clearly indicate that possession of the property which has been delivered is symbolic possession and not physical possession. By applying Section 53A of Transfer of Property Act and Section 2(47) (v) it has been rightly held that physical possession of the property was not transferred to the purchaser under the agreement of sale. In other words, it has been held by Tribunal that in the absence of any finding about handing over of possession in any earlier year, it cannot be said that property was transferred in any earlier year and for ascertaining same, matter has been remanded back to CIT (Appeals) with regard to issue of possession and said finding recorded by the Tribunal cannot be found fault with. That apart, issue relating to valuation, Tribunal has noticed that AO had not referred the matter to the valuation officer as required under Section 50C(2). Said valuation would be the basis for determining the amount of capital gains tax which would be taxable for the relevant year. The finding recorded by the Tribunal is purely question of facts not giving rise to substantial question of law being formulated. As such, we do not find any other ground to entertain this appeal. Accordingly, it stands dismissed. We do not express any opinion with regard to valuation and contention of both parties in this regard is kept open to be urged before the Commissioner of Income Tax (Appeals) insofar as Section 50C of the Act is concerned. By applying Section 53A of Transfer of Property Act and Section 2(47) (v) of I.T. Act, it has been rightly held that physical possession of the property was not transferred to the purchaser under the agreement of sale. It has been held by Tribunal that in the absence of any finding about handing over of possession in any earlier year, it cannot be said that property was transferred in any earlier year and for ascertaining same, matter has been remanded back to CIT (Appeals) with regard to issue of possession and said finding recorded by the Tribunal cannot be found fault with. That apart, issue relating to valuation, Tribunal has noticed that Assessing Officer had not referred the matter to the valuation officer as required under Section 50C(2). Said valuation would be the basis for determining the amount of capital gains tax which would be taxable for the relevant year. The finding recorded by the Tribunal is purely question of facts not giving rise to substantial question of law being formulated. As such, we do not find any other ground to entertain this appeal. Accordingly, it stands dismissed. We do not express any opinion with regard to valuation and contention of both parties in this regard is kept open to be urged before the Commissioner of Income Tax (Appeals) insofar as Section 50C of the Act is concerned.
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