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2006 (6) TMI 138 - AT - Income TaxDeletion of addition made by the AO on account of capital gain arising out of the transfer of property - relevant year of chargeability - deletion holding that the capital asset in question was not transferred in the year in which it has been taxed because the possession was not handed over to the purchasers during the previous year relevant to asst. yr. 1994-95 - HELD THAT:- In a situation in which less than 10 per cent of the cash consideration is paid by the developer to the assessee and in which no part of consideration in kind is paid by the assessee, it cannot be said that the developer had 'complete control' over the property. When the control or right to control is not passed, there cannot be any question of transfer of property. In terms of cl. 9 of the development agreement, the possession was to be delivered only after the complete payment was made. Admittedly, this condition was not complied with till the end of the relevant previous year. In these circumstances, when only a small portion of sale consideration was received as earnest/deposit money and when the developer could not have, therefore, exercised his rights under the contract which were to crystallize on making the payments after the receipt of no objection certificate from the authorities, it cannot be said that there is anything to indicate, leave aside establish, "passing of or transferring of complete control over the property in favour of the developer" which is sine qua non for taking the date of contract as relevant for the purpose of deciding the year of chargeability of capital gains. Therefore, on the facts of the present case, the date of development agreement would not really be relevant to decide the year of chargeability. The conclusions arrived at by the CIT(A) is confirmed and no interference is required in the matter - appeal dismissed.
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