Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2019 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (5) TMI 427 - AT - Income TaxCapital gain computation - transfer of capital asset u/s 2(14) or not - non promulgation of development agreement as planned - whether there is a transfer of capital asset or not under section 2(14) ? - assessee entered into development agreement for development of the land wherein assessee along with others has to give vacant possession of the property starting from 8th month of the date of execution of this deed and shall accommodate the second party’s plans for development but as developer was not fulfilled the contract as per the terms and conditions, the possession is not given to the developer - It is the case of the assessee is that the developer M/s. IPL Infraservices Pvt. Ltd. has not obtained necessary approvals and plans, sanctions from the competent authorities and not acted as per the development agreement and no development has taken place and submitted that there is no transfer of the capital asset. HELD THAT:- We find that when the Assessing Officer has asked the assessee in respect of development agreement and possession of the property it is submitted by the assessee that there is an agreement dated 01/05/2008 and as per the agreement, the developer has to obtain necessary plans, approvals and sanction from the competent authorities due to slump in the real estate, the developer has not developed the land. Therefore the possession is with the assessee and is running poultry in the same land which he running earlier also. All the relevant details are filed, in our opinion, the assessee has discharged his burden casted upon him to show that the possession is with the assessee. Under the above facts and circumstances of the case, once the assessee has discharged his burden, it is the duty of the Assessing Officer to examine the details filed by the assessee and he has to prove that possession is still with the developer and not with the assessee. In the present case, the developer has not discharged his obligation as per the agreement, therefore taxking the capital gains is not justified. From the assessment order, it is very clear that the Assessing Officer has not pointed out anything in respect of the notice issued to the developer and not called any explanation from the assessee in respect of the same. Therefore, we find that the Assessing Officer without making any enquiry, which is necessary in passing the assessment order, he arrived to a conclusion that there is a transfer of capital asset - the possession has not been handed over to the developer and, therefore, there is no transfer of capital asset as per section 2(14) - Decided in favour of assessee.
|