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TMI Blog2012 (6) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... ? (2) Whether the Tribunal was correct in proceeding to decide the issue regarding the chargeability of capital gains for the first time before it, without properly affording opportunity to the Assessing Officer to rebut this contention or remitting the matter back for fresh consideration? (3) Whether the Tribunal was correct in holding that there was no transfer during the current assessment year despite the assessee handing over the possession of the immoveable property to the builder who had in turn handed over the part of the consideration amount which would amount to transfer attracting capital gains tax? (4) Whether the Tribunal was correct in holding that the capital gains tax should be levied only on completi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, he was also entitled to total built up area of 5500 sq.ft to be constructed by the developers which will be made available to the assessee free of cost. On the basis of the said agreement, assessee returned a long term capital gain of Rs.29,19,570/-. The Assessing Officer by order dated 30.3.2000 imposed tax on the capital gain as per the terms of the agreement after giving proper deductions. Being aggrieved by the same the assessee preferred an appeal before the Commissioner of Income Tax (Appeals)-V, Bangalore and the first appellate authority by order dated 14.2.2001 holding that it cannot be stated that there is no transfer of the immovable property in the year ending 31.3.1997 in terms of Section 2(47) of the Act and there has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the structure which the assessee was entitled at free of cost. The learned counsel further submitted that as per the agreement, actual possession of the property was handed over on 30.5.1996 and affidavit is also filed to that effect by the assessee and despite the same, the Tribunal has held that assessment of capital gain cannot be done in the year 1997-98 and is liable to be taxed in the year 2003-04 when the entire construction was completed. Therefore, finding of the Tribunal is erroneous and substantial questions of law may be answered in favour of the revenue. 6. It may be noted at the outset that so far as question of substantial question of law No.2 in ITA No.3209/2005 is concerned, a rectification order has been passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 2003-04, the tax on capital gain has to be made in that year. It is now well settled that the date on which possession was handed over to the developer is relevant and in the present case, it is no disputed that assessee has already received a sum of Rs.45 lakhs in addition to the structures which would enable to put up construction. 8. The Hon'ble Supreme Court in Chaturbhuj Dwarkadas Kapadia vs Commissioner of Income Tax (2003 (260) ITR 491) held that the date relevant for attracting capital gain having regard to the definition under Section 4(47) of the Act is the date on which possession is handed over by the developer and has observed as follows: "Under Section 2(47)(v), any transaction involving allowing of po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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