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2019 (6) TMI 97 - ITAT DELHILong term capital gain - assessee has filed suit for declaring the impugned sale as null and void - transfer has taken place or not - HELD THAT:- Although the sale deed states that the sale consideration has been paid to the assessee, it is the assessee’s contention that the cheques have been dishonoured and that the cash component of the sale consideration has also not been received. Sale deed mentions that the seller i.e. the assessee has received the sale consideration prior to the execution of the sale deed. It is further noted that the sale deed also mentions that the sale deed will be deemed to have been cancelled in the event of the cheques being dishonoured. All these facts would necessarily have to be examined by the AO before the impugned proceeds can be brought to tax. During the course of hearing, AR also could not apprise the Bench on the outcome of the civil suit which had been filed by the assessee for declaring the sale as non-est. Accordingly, it will be in the fitness of things if the AO re-examines the issue after duly considering whatever evidence the assessee may deem appropriate to file before the AO in support of his claim and thereafter pass the assessment order as per law. AO will afford proper opportunity to the assessee to present his case and the assessee will also fully cooperate in the assessment proceedings in this regard whenever he is called upon to do so failing which the AO shall be at liberty to proceed ex parte qua the assessee in accordance with law. Accordingly, in light of our above observations, we restore the entire appeal to the file of the Assessing Officer. The appeal stands allowed for statistical purposes.
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