9911796707
TMI Blog2014 (7) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... t, but no deduction is allowable in this regard as per section 48 for the purpose of computation of capital gain. In fact, carrying cost is taken care of by way of allowing indexation benefit while computing long term capital gain – there was no reason to interfere with the orders of authorities – Decided against assessee. - ITA No.4359/Ahd/2007, ITA No.78/Ahd/2010, ITA No.2842/Ahd/2010 - - - Dated:- 21-3-2012 - Shri Bhavnesh Saini And A. K. Garodia,JJ. For the Petitioner : Shri M. G. Patel For the Respondent : Shri B. L. Yadav ORDER Per A. K. Garodia, Accountant Member: These three appeals are filed by the assessee against appellate orders of the Commissioner of Income Tax (Appeals)-XI, Ahmedabad dated 16.10.2007, CIT(A)-XI, dated 7.12.2009 and the CIT(A)-XVI, dated 01.09.2010 respectively. Since common issues are involved in these appeals, these appeals were heard together and are being disposed of with this consolidated order for the sake of convenience. First we take up ITA.No.4359/Ahd/2007. 2. The only effective ground raised in this appeal reads as under: 1. The ld.CIT(A) has erred in law and on fact of the case by confirming the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty on the part of the assessee to pay any cancellation charges, in case the lands are not transferred to in the name of the prospective purchaser. He disallowed the claim of the assessee. The second issue is regarding payment of ₹ 3,00,000/- to the land owners. It was submitted before the AO that this payment was made on account of some legal issues about ownership right claimed by the legal heirs and thus the payment was made in order to get clear title of the land. The AO has observed that this was a mere submission of the assessee and not corroborated by any evidence to prove that some legal issues had really arose. On this basis, he disallowed claim of the assessee regarding the payment of ₹ 3,00,000/- also. He computed capital gain of the assessee at ₹ 8,81,866/- as against the capital loss claimed by the assessee at ₹ 95,163/-. Being aggrieved, the assessee carried the mater before the learned CIT(A) but without success. The assessee is in further appeal before us. 4. It is submitted by the learned AR of the assessee that the banakhat agreement is available at page nos.48 to 54 of the paper book and the banakhat cancellation agreement is available a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heavy financial loss and therefore, both the parties agree that the assessee will return the amount taken from the buyer and the buyer will cancel the banakhat agreement on receipt of adhoc compensation of ₹ 20 lakhs. This clause also goes to show that the compensation was given by the assessee to the buyer in view of heavy financial loss to be incurred by the buyer on cancellation of banakhat agreement, but the cancellation of banakhat agreement was at the behest of the buyer only and not at the behest of the seller, and in these facts, we feel that the AO has rightly held that these payments of banakhat cancellation charges cannot be construed as payment made to retain the lands and in any case, it cannot be attributable to the cost of transfer of land, which has been added in the computation of capital gain in total acquisition cost. Regarding the judgment cited by the learned counsel for the assessee in the case of Shakuntala Kantilal (supra), we find that this judgment is not applicable to the present case because the facts are different. In this case, the seller did not execute agreement and buyer filed a suit against the seller in Bombay High Court for specific perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of ₹ 3,00,000/- is paid to these persons. Hence, in the facts and circumstances of the case, we find no good reason to interfere with the order of the learned CIT(A) on this issue also. 7. In the result, ITA No.4359/Ahd/2007 is dismissed. ITA No.78/Ahd/2010 8. The grounds raised in this appeal read as under: 1. The ld.CIT(A) has erred in law as well as on facts of the case by confirming the disallowance made by AO of interest payment of ₹ 43,22,153/- paid to partners and depositors as cost of acquisition of land. 2. The ld.CIT(A) has erred in law as well as on facts of the case by confirming the disallowance made by AO of Banakhat Cancellation Charges of ₹ 12,87,352/- as cost of acquisition of land. 9. It was agreed by both the sides that this issue raised in Ground No.2 above is identical to the issue in A.Y.2004-2005 and the same may be decided on the similar line. In that year, we have decided the issue against the assessee and hence, in this year also the Ground No.2 of the assessee appeal is rejected. 10. Regarding Ground no.1, it is noted by the AO that the assessee has added the interest paid to the partners and depositors for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reason to interfere with the orders of authorities below on this issue, and accordingly this ground no.1 is rejected. 13. Now we take up the appeal in ITA No.2842/Ahd/2010. The grounds raised in this read as under: 1. The ld.CIT(A) has erred in law as well as on facts of the case by confirming the disallowance of ₹ 30,08,333/- being interest payment- paid to partners and depositors claim against the long term capital gain on sale of lands. 2. The ld.CIT(A) has erred in law as well as on facts of the case by confirming the disallowance of ₹ 75,00,000/- of Banakhat Cancellation Charges while computing the long term capital gain on sale of lands. 14. It was agreed by both the sides that both the grounds raised by the assessee in this year are identical to the grounds raised by the assessee in A.Y.2001-2002 and the same may be decided on the similar line. In that year, both the issues are decided by us against the assessee, and accordingly, in this year also, both the grounds are rejected. 15. In the combined result, all three appeals of the assessee are dismissed. Order pronounced in Open Court on the date mentioned hereinabove. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
