9911796707
TMI Blog2015 (4) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be deemed to be the cost for which the previous owner of the property had acquired it. In this case, the Assessee, Sri Harish Babulal had acquired this property by inheritance on death of his father Sri Babulal Popatlal who expired on 19th December, 1961. We, therefore, hereby hold that if the dates are correct than the index cost of acquisition is required to be adopted as on 1.4.1981, i.e., 100 instead of 463 as alleged by the AO. Since, the family tree was not disclosed in the assessment order therefore, at this stage of second appeal it is not clear that whether the dates as mentioned were verified by the AO or not. The only reference which we have noticed is in paragraphs 3, 4 & 5 of the sale deed. Therefore, the AO is required to investigate this issue in the light of the dates mentioned in the said registered sale deed, especially, the date of death of the father of the Assessee. If it is found to be prior to 1.4.1981 then naturally the year of inheritance shall be held as 1.4.1981 for the purpose of fixation of cost indexation. With these remarks this issue raised is restored back for denovo adjudication. - Decided in favour of assessee for statistical purpose Cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he gets the sale consideration of ₹ 4,00,000/- only, and therefore, the calculation of the taxable capital gain of ₹ 11,71,597/- which is far much more than the actual sale consideration of ₹ 4,00,000/- is patently bad in law. 2. At the outset, learned A.R., Mr. J.P. Shah has informed that considering the additional ground now raised and ground no.3 being dependent upon the additional ground. The grounds no.1 and 2 are not pressed. 3. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) dated 21.12.2011 were that the Assessee in individual capacity has filed a return of income at ₹ 1,82,280/-, however the assessment was completed on the assessed income of ₹ 12,84,474/- after making an addition of ₹ 11,71,597/- as Long Term Capital Gain in the hands of the Assessee. 3.1 The observation of the AO was that the Assessee had sold a plot situated at Maninagar admeasuring 411.15 sq. along with construction for a consideration of ₹ 80 lac. The next observation of the AO was that on verification of the sale deed, it was found that the Assessee had acquired 1/6th share of Babulal Group and another 1/6t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual and therefore long term capital gain arising out of the sale of the above property is to be taxed in the hands of Individual. As per family tree furnished by the assessee, the assessee is having only 1/6th share received from Babulal Group in the said property. The assessee acquired rights in the said property on the death of Shri Rohitkumar Babulal on 19/02/2004 and therefore the cost of acquisition is to be considered for F.Y.2003-04 of 463 u/s.49 r.w.s. 48(iii) of the Act. 3.3 In respect of determination of the year of cost inflation index, the AO has discussed as under: Cost inflation index for the year in which the asset is transferred /(Divided By) ~ Cost Inflation Index for the first year in which the asset was held by the assessee or [ for the year beginning on the 1st day of April, 1981, whichever is later. 3.4 In the instant case, 1/6th undivided share in the property in question was first held by the assessee on 19/02/2004 on the death of Rohitkumar Babulal. As such the index cost of inquisition is to be taken at to 463 which is being notified by the Central Govt. for every year under clause-(v) of the Explanation to Section 48 of the Act as against 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the case and the submissions made by the appellant and the arguments taken by the A.O. The written submissions made by the appellant indicate that the appellant has contested the both the cost of acquisition adopted by the A O as well as the taxation of the capital gain in his individual capacity. As far as the controversy regarding cost of acquisition is concerned, from the perusal of grounds of appeal raised at para-2.1 above, it would be seen that the appellant has not challenged the action of the A O through any ground of appeal and hence no adjudication is required to be made to the controversy. As far as the action of the A O of taxing the amount of money as capital gains in the hands of the appellant is concerned, the same has been found to be a legally correct action. The Id A O has rightly pointed out that the P.A. No. used for the registration of the documents is that of appellant as an individual and not as HUF and hence legally the seller of the property is the individual and not the HUF. I have gone through the English version of the registered sale deed provided by the appellant which nowhere indicate that the impugned property was sold by the HUF. Then again as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but it was acquired way back after the death of his father hence the cost of acquisition index as on 1.4.1981 was to be applied by the AO. For this legal proposition, he has placed before us today a computation of capital gain as under: Fair market value of the entire property on 01.04.1981 according to the Valuation Report of registered valuer M.C. Dalai on page 53 of the paper book. Rs.44,93,000/- Value of assessee's 1/6th share of the assesse therein on 01.04.1981. ₹ 7,48,833/- Indexed cost thereof is 7,48,833 x 582/100 Rs.43,58,208/- Capital loss is (Rs.43,58,208 Less ₹ 13,33,333/- Rs.30,24,875/- 5.2 Mr. Shah has placed reliance on a decision of Hon ble Gujarat High Court pronounced in the case of CIT Vs. Gautam Manubhai Amin, 38 taxmann.com 42 (Guj.) wherein it was decided as under: 6. Heard Shri K.M. Parikh, learned advocate appearing on behalf of the Revenue and considering the material on record and the impugned order passed by the learned ITAT as well as the order passed by the CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 when he has obtained the rights over the property; Ld. DR has pleaded. 7. We have heard both the sides at some length. We have perused the orders of the authorities below in the light of a short compilation filed before us. On perusal of the sale deed stated to be registered on 27th of March, 2009 we have noted that the executors of the sale deed were the family members of the Assessee. Meaning thereby the Assessee was not the only seller of the property but the property in question was sold jointly by all the members of the family. The property in question was sold for a consideration of ₹ 80 lac. 8. It is worth to mention at this stage that although we have found that the property in question was inherited by the Assessee but we are not going to disturb the status under which the assessment was completed. The assessment order was passed by the AO in the status of individual which is not going to be disturbed especially when ground no.1 and 2 are not pressed by learned A.R. before us. With this legal finding now we proceed hereinbelow. 9. The next issue is as per ground no.3 raised before us that whether the Revenue Authorities were correct in adopting the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the dates are correct than the index cost of acquisition is required to be adopted as on 1.4.1981, i.e., 100 instead of 463 as alleged by the AO. Since, the family tree was not disclosed in the assessment order therefore, at this stage of second appeal it is not clear that whether the dates as mentioned were verified by the AO or not. The only reference which we have noticed is in paragraphs 3, 4 5 of the sale deed. Therefore, the AO is required to investigate this issue in the light of the dates mentioned in the said registered sale deed, especially, the date of death of the father of the Assessee. If it is found to be prior to 1.4.1981 then naturally the year of inheritance shall be held as 1.4.1981 for the purpose of fixation of cost indexation. With these remarks this issue raised as per ground no.3 of ground of appeals is restored back for denovo adjudication. This ground may be treated as allowed but for statistical purpose only. 9.1 An another issue has been raised through additional ground which pertains to the cost of acquisition. The cost on one hand, as AO had adopted at the figure of ₹ 1,28,666/-; but on the other hand the Assessee had adopted ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
