- (1.) Leave granted.
(2.) In these civil appeals we are concerned with the scope of Section 2(47)(v) read with Section 53A of the Transfer of Property Act.
(3.) Assessee entered into an agreement to sell 7,000 sq. mtrs. vacant land to M/s Kumaon Constructions Ltd., Nainital, for Rs. 25 lacs. The agreement was registered with Sub-Registrar, Nainital, and Rs. 2 lacs were received as advance. In the period relevant to assessment year 1989-90 assessee claims to have transferred 24 plots to the nominees of M/s Kumaon Construction Ltd. for total consideration of Rs. 15,20,900 inclusive of Rs. 2 lacs as advance. The assessing officer called upon the assessee to show cause why capital gains should not be assessed with reference to total consideration of Rs. 25 lacs fixed in the agreement for sale. In his reply assessee submitted that he has not given possession of the entire area of 7,000 sq. mtrs. of vacant land; that he continues to be in possession of the land not transferred and therefore Section 2(47)(v) was not applicable. The assessing officer did not agree with the contention of the assessee and accordingly worked out capital gains liability on the entire consideration of Rs. 25 lacs principally on the ground that major portion of total land has already been sold and thus a part of contract was performed and accordingly, the case stood covered by Section 53A of the Transfer of Property Act. This view was confirmed by the Commissioner (Appeals).;