TMI Blog2019 (6) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheques being dishonoured. All these facts would necessarily have to be examined by the AO before the impugned proceeds can be brought to tax. During the course of hearing, AR also could not apprise the Bench on the outcome of the civil suit which had been filed by the assessee for declaring the sale as non-est. Accordingly, it will be in the fitness of things if the AO re-examines the issue after duly considering whatever evidence the assessee may deem appropriate to file before the AO in support of his claim and thereafter pass the assessment order as per law. AO will afford proper opportunity to the assessee to present his case and the assessee will also fully cooperate in the assessment proceedings in this regard whenever he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no long term capital gain had been declared by the assessee in the return of income. As per the information available with the Assessing Officer, the cost of property sold was ₹ 27,66,500/- and after indexation, the cost of acquisition for the assessee worked out to ₹ 50,05,286/-. Thus, based on these figures, the Assessing Officer proposed an addition of ₹ 80,00,714/- on account of long term capital gain. In response, the assessee submitted before the Assessing Officer that the long term capital gain, as computed by the Assessing Officer, was not taxable in the hands of the assessee as the sale of the property was not effected for the reason that the part sale consideration received through cheque amounting to ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following grounds:- 1. That on the facts and circumstances of the case, as available in the assessment order and on the file of the Assessing Officer, the Learned Commissioner of Income Tax (Appeals), erred in not considering the same, before confirming the addition of ₹ 80,00,174/- on account of Capital Gain on Sale of Plot. 2. That the Learned Commissioner of Income Tax (Appeals) being aware of the fact that the cheques for ₹ 57,00,000/- issued by the buyer having been dishonoured, he ought to have held that the sale deeds executed, were to be treated as cancelled / non-est as per the terms of the sale deeds, and that no Capital Gain accrued to the appellant. 3. That on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the assessee has filed suits in the District Court of Ghaziabad for treating the sale as null and void and for cancellation of the sale deed in view of specific clause in the sale deed which provided that in case the cheques were not honoured, the sale deed shall be deemed to have been cancelled. Our attention was drawn to the relevant pages in the Paper Book containing the copy of the sale deed. It was further submitted that the Ld. First Appellate Authority had failed to note that the terms of the sale deed clearly provided that in case a cheque is not honoured, the sale deed was to be treated as cancelled. It was further submitted that capital gains can be taxed only if there is actual transfer and that since payment of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also note that the sale deed mentions that the seller i.e. the assessee has received the sale consideration prior to the execution of the sale deed. However, it is further noted that the sale deed also mentions that the sale deed will be deemed to have been cancelled in the event of the cheques being dishonoured. All these facts would necessarily have to be examined by the Assessing Officer before the impugned proceeds can be brought to tax. During the course of hearing, the Ld. AR also could not apprise the Bench on the outcome of the civil suit which had been filed by the assessee for declaring the sale as non-est. Accordingly, it will be in the fitness of things if the Assessing Officer re-examines the issue after duly considering what ..... X X X X Extracts X X X X X X X X Extracts X X X X
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