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TMI Blog2015 (4) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... O has rightly computed the Capital Gain. 2. In the facts and circumstances of the case, the Ld. CIT(A) has erred in not appreciating that the benefit of capital gain, especially when cost of acquisition of land and building have been mentioned separately in the purchase deed. 3. In the facts and circumstances of the case, whether the Ld. CIT(A) was justified in holding that the issue is also squarely covered by the order by the order of ITAT Hyderabad in Dr. May Shenoy vs. Asstt. CIT (2009) 124 ITR J (HYD) 692. 4. That in the facts and circumstances of the case, it is requested that the order of Ld. CIT(A) being erroneous in law and on facts is liable to be reversed / set aside and the order of the AO may be restored. 5. The appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At the time of hearing Ld. DR relied upon the order of the AO and reiterated the contentions raised by the Revenue in the grounds of appeal. 6. On the contrary, Ld. Counsel of the assessee relied upon the order of the Ld. CIT(A) and submitted that the same may be upheld. 7. We have heard both the parties and perused the relevant records available with us. We find that in this case return of income was filed on 24.9.2007 declaring income of Rs. 772060/- from salary, STCG and income from other sources. The assessee during the year under consideration received salary from M/s Emmar MGF Land Pvt. Ltd. and also sold residential property i.e. Plot No. III, E/92, Nehru Nagar-II, Ghaziabad for Rs. 24,00,000/- which was acquired by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these facts AO disallowed the claim of cost of acquisition as assessee had not declared sales consideration of Rs. 1,30,000/- against sale of 'Malwa' of demolished construction and claim of interest paid Rs. 1,42,715/- to Citi Bank against loan taken for acquisition of the said property. We find that the Ld. CIT(A) has observed that the actual cost incurred by the assessee for the acquisition of the property has to be taken for computing capital gain and part of it cannot be disallowed on the basis that construction is demolished before sale. The ld CIT(A) has considered the possibility that if part of construction had fallen down on its own i.e, Act of God; then also the result would have been the same and it would not have been possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es but would be a case of transfer under section 2(47)(i) [Assessment year 2001-02) [in favor of Revenue] Dr. May Shenoy v. ACIT [2009] 124 TTJ (Hud.) 692 The assessee had purchased a property consisting of land with a double storied building standing on it. The assessee entered into a development agreement with one A.S.R. on 9-3-1995 for construction of flats. As per the agreement, the developer was to be handed over the possession of the said land and in turn had to give 45 per cent of the constructed area to the owner i.e., the assessee, and the assessee was to demolish the existing structure. Accordingly, the assesse demolished the structure in 1999 and handed over the vacant land for development. The builder commenced construction in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47). There was no force in the argument that the handing over of the possession was not in pursuance of part performance of the contract. Possession of the land being one of the interest in property had been transferred to the developer who also would be enjoying the usufruct of the land. If the shield of section 53A was available to the developer, it obviously meant that handing over of the possession was pursuant to the transfer contemplated under the Transfer of Property Act and hence under clause (v) of section 2(47). In the present case, this was not a sale transaction as money was not the consideration but some other valuable consideration was passing to the assessee in the form of 4-1/2 flats. Therefore, the transfer in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous year relevant to assessment year 2000-01. Therefore, the Assessing Officer might consider, if law permitted and if so advised, to compute the gains in the year to which it pertained. So far as the computation of gains on sale of flats was concerned, there was no dispute that two flats were sold in the year relevant to the assessment year 2002-03. Hence, that part did not fall for consideration in the instant appeal. During the year, there was a sale of flats. Accordingly, this issue was restored back to the file of the AO with the direction to recomputed the short term capital gain on sale of flats after considering the view point of Commissioner (Appeals) and also after giving due opportunity of being heard to the assessee." 7.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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