TMI Blog2013 (1) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3.8.2002. By virtue of which, the assessee received ₹ 14,95,650/- as compensation for transfer of development right. The assessee claimed that the said transfer of development right does not amount to transfer of capital asset and therefore not liable to capital gain tax. However, the submission of the assessee did not find favour from the AO who went on to tax capital gains on the entire sum at ₹ 14,95,650/-. 4. The matter was agitated before the Ld. CIT(A) but without any success. The Ld. CIT(A) relied upon certain judicial pronouncements discussed in his order and finally concluded as I am of the considered view that the sum of ₹ 14,95,650/- has been rightly taxed by the AO as long term capital gain in the ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed Building or the PB . The PB is marked by Pink colour shad in the plan at Annexure A . 9. A perusal of the aforesaid clause clearly shows that the assessee has Transferd Development Right in the light of the said transfer. Let us consider the decision of the Tribunal relied upon by the assessee. The Tribunal in the case of Deepak S. Shah Vs ITO in ITA No. 1483/M/01 wherein the Tribunal has held as under: The Tribunal noted that neither the Society nor the members owned or possessed any TDR. The TDRs were owned and possessed by the Developer and in terms of the regulations framed by the Municipal Corporation; it was permissible for the building to utilize the said TDR in or with respect to the prescribed area, including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights in the flat; in fact they had added the risk of adding load to the building. Accordingly, it held that the cost of flat cannot be any measure for the purpose of finding out the cost of the alleged capital asset and the alleged transfer of such asset. Accordingly to the Tribunal, the decisions relied on by the CIT (A) as well as the Revenue in its submission; both were distinguishable on the facts. It further observed that the assessee was neither holding any capital asset, nor was there any transfer of capital asset. Accordingly it held that S.45 of the Act was not attracted and the assessee was not liable to capital gain tax u/s.45 of the Act. 10. The Tribunal in the case of Maheshwar Prakash -2 CHS Ltd. Vs ITO in I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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