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2015 (1) TMI 1060 - AT - Income TaxComputation of Capital gain - assessee claimed the deduction (to the extent of 1/6th of his share) while computing the Capital Gain on the sale of development rights in the property at E Ward Dabholkar Corner Kolhapur in respect of the loan taken by M/s. Mehta Construction but which was not repaid by him and the assessee had to repay the loan to clear encumbrance created by the developer - Held that - In the present case the loan was borrowed by the Developer M/s. Mehta Construction Co. and we find that it was part of the terms and conditions of the Development Agreement as the developer was allowed to raise the loan against the mortgage of the property for development purpose only. In our opinion the principles laid down by the Hon ble jurisdicitional High Court in the case of Roshanbabu Mohammed Hussein Merchant (2005 (1) TMI 53 - BOMBAY High Court ) in fact help the assessee as the charged on the property was not by the assessee and other co-owners. We are inclined to allow the grounds taken by the assessee and direct the Assessing Officer to allow claim in respect of bank liability of the developer repaid by the assessee and other co-owners to extend of assessee s share u/s. 48(i)/(ii) of the Act. Appeal allowed.
Issues Involved:
1. Deduction of expenditure incurred for release of property title while calculating capital gain. 2. Allowability of additional cost as cost of acquisition for clearing the encumbrance of mortgage created by the developer. Issue-Wise Detailed Analysis: 1. Deduction of Expenditure Incurred for Release of Property Title While Calculating Capital Gain: The appellants, co-owners of a property, entered into a Development Agreement with M/s. Mehta Construction Co. The developer mortgaged the property to obtain a loan, which was not repaid, leading the bank to initiate recovery proceedings. The appellants repaid the loan to clear the encumbrance and claimed this expenditure as a deduction while computing capital gains. The Assessing Officer (AO) disallowed this claim, stating that the liability was of the developer, not the landowners. The AO relied on the Supreme Court decision in CIT Vs. Attili N Rao and the Madras High Court decision in CIT Vs. N Vajrapani Naidu, concluding that the expenditure was not a direct cost of transfer of the property. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's decision, referencing the Bombay High Court decision in CIT Vs. Roshanbabu Mohammed Hussein Merchant. The CIT(A) noted that the appellants voluntarily took over the developer's liability, which amounted to creating an encumbrance themselves. The appellants appealed to the Tribunal. The Tribunal examined the Development Agreement and mortgage deed, noting that the mortgage was created by the developer under an irrevocable Power of Attorney. The Tribunal distinguished the facts from those in Roshanbabu Mohammed Hussein Merchant, where the mortgage was created by the assessee after acquiring the property. Here, the mortgage was created by the developer, not the appellants. The Tribunal found that the repayment was necessary to remove the encumbrance and preserve the property rights, thus qualifying as an allowable deduction under Section 48(i) or 48(ii) of the Income Tax Act. 2. Allowability of Additional Cost as Cost of Acquisition for Clearing the Encumbrance of Mortgage Created by the Developer:The appellants also sought to claim an additional cost of Rs. 55,88,350 as the cost of acquisition, arguing that it was incurred to clear the mortgage created by the developer. The Tribunal admitted this additional ground, noting that it was a legal issue requiring no further factual investigation. The Tribunal reiterated its findings from the first issue, emphasizing that the mortgage was created by the developer, not the appellants. The repayment of the loan was necessary to remove the encumbrance and was thus an allowable expenditure. The Tribunal directed the AO to allow the deduction under Section 48(i) or 48(ii) of the Income Tax Act while computing the capital gains. Conclusion:The Tribunal allowed both appeals, directing the AO to allow the claimed deductions for the repayment of the developer's loan as allowable expenditure under Section 48(i) or 48(ii) of the Income Tax Act. This decision was based on the finding that the mortgage was created by the developer, and the repayment was necessary to clear the encumbrance and preserve the property rights. Pronouncement:Both appeals were allowed, and the judgment was pronounced in the open Court on 31-12-2014.
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