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2019 (9) TMI 458 - AT - Income TaxCapital gain on sale of land - LTCG OR STCG - Period of holding - delay in non-registration of the sale deed and possession of the property - HELD THAT:- Assessee in the instant case has fulfilled all the conditions specified in the agreement but the seller failed to do so for the reasons best known to him. Accordingly, we conclude that the delay in non-registration of the sale deed and possession of the property has occurred for the reasons beyond the control of the assessee i.e. due to default of the seller of the property. The law of impossibility of performance does not necessarily require absolute impossibility, but also encompass the concept of severe impracticability. In our humble opinion, the doctrine of impossibility of performance applies in this case. Due to uncontrollable circumstances, the performance of the obligation as specified under the agreement became impossible to perform within the time for the assessee. ' The assessee cannot be penalized for the delay in the registration of the property in the given facts and circumstances. Hence the assessee is entitled to reckon the period of holding from the date of the registration of the agreement i.e. 15th February 2006. Execution of the sale deed in pursuance to the order of the court would relate back to the original agreement to sale as discussed above. Hence the assessee is entitled for the claim of index cost of acquisition being the holding period more than 36 months. Therefore the ground of appeal of the assessee is allowed. Denial of deduction of cost of improvement - admission of additional ground - HELD THAT:- Admittedly, the issue raised by the assessee in the additional ground of appeal relates to the factual dispute which was discussed in the assessment order. But the impugned issue was agitated by the assessee before the authorities below. As such the authorities below did not entertain the claim of the assessee on the reasoning that the assessee failed to furnish the supporting documents. This fact can be verified from the order of the authorities below. Therefore we are of the view that the assessee being aggrieved is entitled to raise the additional ground in the instant case. Accordingly, we are inclined to admit the additional ground of appeal raised by the assessee. Claim of the assessee was rejected by the authorities below in view of the fact that the supporting documents were not furnished. Therefore, in the interest of justice and fair play, we are inclined to refer the matter to the file of the AO for fresh adjudication as per the provisions of law.
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