TaxTMI 
TaxTMI 
2016 (4) TMI 465
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....hat the mistake is crept into the order which requires rectification by this Tribunal. 2. The ld.Sr.DR reiterated the submissions as were made in the miscellaneous application. The ld.Sr.DR submitted that the Tribunal while deciding the issue has followed the judgement of the Hon'ble High Court of Mumbai in the case of Chaturbhuj Dwarkadas Kapadia vs. CIT reported at 260 ITR 491(Bom.) The ld.Sr.DR submitted that the facts of the case are distinguishable 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 A....
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.... substantially performed the contract. It was argued on behalf of the department that since substantial payments were made during the financial year ending 31st March, 1996 and since majority of permissions were obtained during that year, the liability to pay capital gains tax accrued during assessment year 1996-97. In this case, the agreement is a Development Agreement and in our view, the test to be applied to decide the year of chargeability is the year 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 contr....
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....loper obtains the requisite approvals of various authorities. In fact, the limited power of attorney may not be actually given, but once under clause 8 of the agreement a limited power of attorney is intended to be given to the developer to deal with the property, then we are of the view that the date of the contract viz., 18th August, 1994 would be the relevant date of decide the date of transfer under section 2(47)( v) and, in which event, the question 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....
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....nt on the face of the record, in the order of the Tribunal. The Tribunal has relied upon assessee obtaining 7 permissions. We find that item (vi) and item (vii) are mere repetitions of item (iii) and item (i) respectively. Similarly, the Tribunal has referred to permissions obtained during financial years other than the concerned financial year ending 31st March, 1996 to come to the conclusion that the transfer had taken place during that year. Lastly, 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 assess....
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.... 8. Taking into account the totality of circumstances, on facts, we allow the appeal of the assessee. " 4.1. In the present case, it has been recorded by this Tribunal in the order which is sought to be rectified that there are clear terms in the development agreement which is reproduced at page-8 of the Tribunal's order dated 04/04/2014. A bare reading of the same makes it clear that the complete control over the properties was given to the developer. 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 h....