TMI Blog2012 (6) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire construction was completed. - Therefore, finding of the Tribunal is erroneous and substantial questions of law answered in favour of the revenue. capital gain is to be taxed in the year 1997-98 and not in the year 2003-04 as contended by the assessee. - ITA No. 3209, 3165 of 2005 - - - Dated:- 20-6-2011 - V.G. Sabhahit, Ravi Malimath, JJ. C. Shyamala, Adv., and K.R. Prasad, Adv. for the Appellant K.R. Prasad, Ashok Kulkarni, Advs., and Veena Jadhav, Adv. for the Respondent JUDGEMENT ITA No. 3209/2005 is filed by the revenue which has been admitted on 26.9.2006 for consideration of the following substantial questions of law: (1) Whether the Tribunal was correct in holding that the assessee was not li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing rise to the above said questions of law are as follows: The assessee-medical practitioner by profession filed his return of income on 18.9.1997 which was processed under Section 143(1) of the Income Tax Act, 1961 (hereinafter called the 'Act'). According to him, total income was computed at Rs.33,57,990/-. A notice was issued to the assessee under Section 143(2) of the Act and in response to the same, assessee's representative appeared before the assessee. It was contended that assessee was an owner of an immovable property at No.15, I Main Road, Gandhinagar, Bangalore. On 26.1.1996, the assessee entered into a joint venture agreement with M/s Venus Udyog Limited for developing the property. The agreement provides that a sum of Rs.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The Income Tax Appellate Tribunal, by order dated 23.6.2005 dismissed the appeal filed by the revenue and allowed the cross objection partly by holding that assessee is not liable to capital gain for the assessment year 1997-98 and the contention of the assessee that the capital gain was assessable for the year 2003 was accepted. Being aggrieved by the same, these two appeals are filed for consideration of the aforesaid substantial questions of law. 4. We have heard the learned counsel appearing for the appellants and learned counsel appearing for the respondent. 5. The learned counsel appearing for the appellants - revenue submitted that on the date of original agreement dated 26.1.1996 the clause in the agreement show that poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he schedule property was handed over on 30.5.1996, the said finding on the question of fact that the possession was handed over on 30.5.1996 is based upon the material on record and cannot be said to be perverse or illegal. The question to be decided is the year in which Rs.45 lakhs received by the assessee under the agreement dated 26.1.2006 as modified by the subsequent agreements to be taxed. It is not disputed that the assessee had received capital gain in the year 1897-98 and having regard to the finding of fact that the possession of the property has been handed over on 30.5.1996, we hold that appropriate assessment year in which the capital gain is to be taxed is 1997-98. There is no merit in the contention of learned counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 2(47)(v). Section 2(47)(v) was introduced in the Act from the assessment year 1988-89 because prior thereto, in most cases, it was argued on behalf of the assessee that no transfer took place till execution of the conveyance. Consequently, the assessee used to enter into agreements for developing properties with the builders and under the agreement with the builders, they used to confer privileges of ownership without executing conveyance and to plug that loophole, section 2(47)(v) came to be introduced in the Act." The Hon'ble Supreme Court has referred to the contention of the assessee and the earlier judgments of the Supreme Court cited by him and held that those judgments were prior to introduction of the concept of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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