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2023 (3) TMI 317 - AT - Income TaxRevision u/s 263 - Correct head of income - compensation received by the assessee is required to be assessed - "Income from Other Sources" OR "Income from Capital Gains" as per Section 2(14) - PCIT held that the income from Capital Gain can only be arisen if there is transfer of capital asset in the case of the assessee, there is neither capital asset in assessee's hand as far as booking of the Villa is concerned nor transferred of the said asset. Therefore the provisions of Section 45 of the Act will not be applicable in assessee's case - HELD THAT:- During the assessment proceedings, the ld. AO. vide his notice u/s.142(1) called for various details which were submitted by the assessee. A.O. passed the assessment order after taking into consideration the submissions of the assessee and by verifying the documentary evidences produced before him. As seen from record as against the Revenue Audit Objection raised by the Department, the Assessing Officer himself replied to the Revenue Audit Objection by relying upon decision of the Mumbai Tribunal in Ashwin S. Bhalekar case on identical facts namely compensation received by the assessee was treated as Long Term Capital Gain. Thus the Ld. A.O. requested the Audit Party to withdraw/drop the Revenue Audit Objection As relying on cases Smt. Abha Bansal [2021 (5) TMI 1001 - ITAT DELHI] and Indu Fine Lands (P.) Ltd. [2014 (8) TMI 862 - ITAT HYDERABAD] we have no hesitation in holding that the assessment order passed by the Assessing Officer is neither erroneous nor prejudicial to the interest of Revenue. It is been held by the Co-ordinate Benches of the Tribunal that compensation received by the assessee from the proposed building by way of allotment is actually extinguishment of a right in relation to capital asset, in view of the provisions of section 2(47)(vi) of the Act. This clearly falls within the definition of transfer and hence provisions of section 45 is applicable. Therefore the Revision proceedings initiated by the Ld. CIT (IT &TP) is liable to be quashed. Thus, the grounds raised by the assessee are hereby allowed.
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