TMI Blog2016 (4) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... n-trade and such stock-in- trade was during the block period. We are unable to agree with the contention of the Sr.DR that there was no sale of property by way of the Developoment agreement. The Sr.DR has placed section 45(2) of the Act to buttress the contention that the assessee ought to have offered for taxation of gain arising out of transfer of the property during block period. In our considered view, the transfer of property was complete by way of the development agreement. The Revenue has not disputed the fact that the assessee had given possession of the property to the developer even if it is assumed that it is in nature of stock-in-trade, there is a change of hands as the assessee had given possession of the property to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the facts of the present case in as much there was no issue of conversion of capital asset, i.e. land and building into stock-in-trade, whereas in the instant case, it is not so. He submitted that the conversion of sock-in-trade is governed by the provisions of section 45(2) of the Act and has been dealt with in detail in the assessment order. 3. On the contrary, ld.Sr.counsel for the assessee submitted that the Revenue is trying to insist on reviewing the order passed by this Tribunal as there is no mistake apparent from records. All facts have been duly considered in the order sought to be rectified. If the prayer of the Revenue is accepted, it would tantamount to review the Tribunal s order which is not permissible under the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in which the transaction was entered into. We have taken this view for the reason that Development Agreement does not transfer the interest in the property to the developer in general law and, therefore, section 2(47)( v) has been enacted and in such cases, even entering into such a contract could amount to transfer from the date of the agreement itself. We have taken this view for a precise reason. Firstly, we find in numerous matters where the Assessing Officer and the department generally proceed on the basis of substantial compliance of the contract. For example, in this very case, the department has contended that because of substantial compliance of the (contract during the financial year ending 31st March, 1996, the transfer is dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of substantial performance of the contract thereafter does not arise. This point has not been considered by any of the authorities below. No judgment has been shown to us on this point. Therefore, although there is a concurrent finding of fact in this case, we have enunciated the principles of applicability of section 2(47)( v). We do not find merit in the argument of the assessee that the Court should go only by the date of actual possession and that in this particular case, the Court should go by the date on which irrevocable licence was given. If the contract, read as a whole, indicates passing of or transferring of complete control over the property in favour of the developer, then the date of the contract would be relevant to decide th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal has referred to permission dated 25th June, 1995 for redevelopment of the property vide item (iii). However, in the compilation given by the ' assessee there is no such permission. The assessee has disputed the existence of this document. Office is directed to take the assessee's compilation on record and mark X . It is for this reason that vide Order dated 29th January, 2003, we called upon the Commissioner of Income-tax (Judicial) to forward to us the R P. However, learned counsel for the department has informed us the R P is not available. There are other apparent errors in the Order of the Tribunal. At Page 144 of the Paper Book, the Tribunal has stated as under : From the dates it is evident that from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veloper. Consideration of the transfer of the rights is fixed and the terms of payment is also fixed. No material is placed before this Tribunal, that the parties did not act upon the development agreement. The only grounds taken by the Revenue for seeking recalling the order is that the assessee had converted the property in question as stock-in-trade and such stockin- trade was during the block period. We are unable to agree with the contention of the Sr.DR in the light of the Hon ble Judgement of Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia vs. CIT (supra) that there was no sale of property by way of the Developoment agreement. The Sr.DR has placed section 45(2) of the Act to buttress the contention that the assessee oug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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