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2022 (3) TMI 1009 - AT - Income TaxDetermination of Short Term Capital Gain - Transfer of capital asset u/s 2(47) - year of assessment - AO sought to invoke Section 53A of the Transfer of Property Act, 1882 - case of the Revenue is this that the Vaibhav Industires have given the possession of land and/or property 22.09.2011 against the total sale price pertaining to F.Y. 2011-12 - HELD THAT:- It is a fact that assessee is an ultimate purchaser received the total consideration during the F.Y. 2012-13 i.e. for A.Y. 2013- 14 upon completion of all formalities in terms of the order passed by the Hon’ble High Court finally and the property got transferred. Therefore, it was practically transferred in the F.Y. 2012-13 and not F.Y. 2011-12 i.e. the assessment year under consideration. In that view of the matter the invocation of Section 53A of the Transfer of Property Act, 1882 is wrong. Thus, no profit or gain which arose from transfer of a capital asset which could be brought to tax under Section 45 r.w.s. 48 of the Act As decided in Balbir Singh Maini [2017 (10) TMI 323 - SUPREME COURT] where it has been held that where for want of permission in that transaction of development of land envisaged in Joint Development Agreement (JDA) failed through, there were no profit or gain which arose from transfer of capital asset which could be brought to tax under Section 45 r.w.s 48 of the Act. Thus we hold that since the property was actually transferred in A.Y. 2013-14 the computation of short-term capital gain holding the transfer took place in the A.Y. 2012-13 is not sustainable. In the present facts and circumstance of the case the deed since not registered in A.Y. 2012-13 it has no effect in law for the purpose of invocation of the provision of Section 53A of the Act. There is no profit or gain arose as there was no transfer in the year under consideration. Hence, the impugned order of addition passed by the authorities below is not sustainable in law and, thus, hereby quashed. Addition of interest income on mercantile basis - amount received during the year accounted on cash basis without allowing the expenditure as claimed by the appellant - HELD THAT:- Having heard the Ld. Counsel appearing for the parties, having regard to the facts and circumstances of the case we remit the issue to the file of the Ld. AO to consider that if the impugned income has been offered to tax in the subsequent year then the relief is also to be given to the assessee in the respective Assessment Year. The Ld. AO will consider the issue as directed hereinabove upon considering the evidence to be produced by the assessee and after affording opportunity of being herd to the assessee. Assessee’s this ground of appeal is, therefore, allowed for statistical purposes.
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