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TMI Blog2016 (9) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case ? 2. Facts necessary for disposal of the appeal are stated in brief. For the year under consideration, the assessee declared total income of Rs. 1,51,250 apart from agricultural income of Rs. 3500. Consequent to the search and seizure operations under section 132 of the Act in the case of Shri Suresh Kumar Shah (HUF), a notice under section 153A was issued in the case of the assessee (individual) for the A.Ys. 2002-2003 to 2007-2008. During the course of assessment proceedings, it was noticed that the assessee along with his family members sold one acre of land for a consideration of Rs. 1,21,00,000 on 12.04.2006 which falls within the previous year relevant to the assessment year under consideration. Assessee claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal also observed that the possession and control of the property is already vested with the transferee and the impugned development agreement has not been cancelled and it is still in operation. 4. Having regard to the specific observation of the Tribunal, the learned CIT(A) concluded that the case was set aside for the limited purpose and even if the developer was unable to perform his contract it cannot be said that the provisions of section 2(47) are not attracted. As per the Hon'ble Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia the issue to be decided is whether the liability of the assessee for capital gains accrued to an assessee during the assessment year when it was liable to pay capital gains tax and the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent have never enjoyed any physical possession of the property right from the beginning of the development agreement and by virtue of cancellation/annulment of the development agreement there cannot be said to be any transfer of the land within the meaning of section 2(47) of the I.T. Act. It was further submitted that the Arbitral Tribunal has passed its consent Award on 12.03.2014 which was not available before the Tribunal in the first round of litigation and though the same was produced before the Ld. CIT(A) in the set aside proceedings, he has erred in interpreting that the consent Award cannot alter the factual matrix of the case. It deserves to be noticed that the ITAT, in it's order dated 16.12.2011, observed that there is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Tribunal, both the parties admitted that the property was never in the physical possession of the Dakshin Shelters P. Ltd., and development agreement was cancelled wherein it was admitted that the party of the first part was always in actual physical possession and enjoyment of the entire scheduled property. Since the parties to the agreement having approached the Arbitral Tribunal, which has passed a consent decree in favour of the assessee, the findings therein have to be taken into consideration. No doubt, the Appellate Authorities in the earlier rounds of litigation have interpreted the terms of the development agreement but the fact remains that the development agreement has not been acted upon, as admitted before the Arbitral Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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