9911796707
TMI Blog2015 (6) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be adopted and accordingly the fair market value has to be adopted as on 01.04.1981. Since the department has not adopted any fair market value as on 01.04.1981, the fare market value as determined by the registered valuer as on 01.04.1981 appears to be correct. However, the AO shall examine the said value as determined by the registered valuer. Regarding the sale value for the purpose of determination of long term capital gain, the same also needs to be verified because the learned counsel before us has submitted that the stamp valuation authority has determined the stamp value of the flat at ₹ 4,43,500/-. Thus, the issue of determination of fair market value as on 01.04.1981 and the sale consideration in the A.Y. 2006-07 is set aside to the file to the AO who shall examine the contention of the assessee, then determine the long term capital gain. Claim of benefit u/s 54F has not been taken either before the AO or before the Ld. CIT(A). Therefore, being a legal claim, the additional ground raised by the assessee is admitted and the matter is restored back to the file of the AO, who shall examine the same and allow the claim of deduction/benefit in accordance with la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster, each having 1/4th share in it. The assessee along with other co-owners of the property, entered into a development agreement with M/s. Build Well Constructions, vide agreement dated 08.03.2000. Under the said agreement the owners allowed the developer to develop the said plot for construction of flats. In view of the said surrender of right, a sum of ₹ 80,000/- (Rs. 20,000/- each) was to be paid on the date of execution of the agreement. In addition to above, the developer was also required to provide the co-owners, four flats admeasuring 700 sq. ft. each, free of cost and four garages of 100 sq. ft each. Thus, assessee was entitled for ₹ 20,000/- cash and one flat of 700 sq. ft and one garage of 100 sq. ft. Pursuant to the said agreement, the assessee was allotted the flat during the financial year 2005-06 vide deed dated 03.12.2005 on which stamp duty amounting to ₹ 7930/- was paid, vide receipt dated 02.12.2005. The assessee did not offer the long term capital gain in the current A.Y. 2006-07. The assessing officer in the course of the assessment proceedings held that assessee was allotted flat during the relevant previous year, vide deed dated 03.12.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the said property to the developer, who was entitled to develop the said property freely and the power of attorney was also executed in the favour of the developers to develop the said property. Thus, the transfer itself has taken place in the A.Y. 2000-01 and therefore, same cannot taxed in the A.Y. 2006-07. Reliance was placed on the provisions of section 2 (47)(v) and section 53A of the Transfer of Property Act, 1883. Regarding cost of acquisition that it cannot be taken at Nil , because the property was acquired by the previous owner before 01.04.1981 and therefore, the cost of the previous owner or fair market value of the asset as on 01.04.1981 has to be taken. The assessee submitted Approved Valuer s Report, who had valued the property as on 01.04.1981 at ₹ 8,55,950/- However, the Ld. CIT(A), confirmed the action of the AO and held that cost of acquisition of the property has rightly been taken at Nil . 4. Before us, learned counsel for the assessee submitted that long term capital gain cannot be taxed in the A.Y. 2006-07 because the assessee had handed over to the possession to the developer in pursuance of development agreement which was executed on 08.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On the other hand, learned DR strongly relied upon the order of the Ld. CIT(A) and submitted that capital gain has rightly been taxed in the A.Y. 2006-07, because the assessee in pursuance of an agreement had received the plot in year 2005, which is evident by the fact that deed for allotment of the flat was made on 03.12.2005 and stamp duty was also paid in this year. Therefore, the capital gain has arising in this year only. Regarding cost of acquisition, he relied upon the order of the Ld. CIT(A). Lastly regarding claim of section 54F, he submitted that the matter should be restored back to the file of the AO to examine the said issue afresh. 7. We have heard the rival submissions and perused the relevant material placed on record. It is an undisputed fact that the assessee had acquired a share in the property at Amboli, Andheri (W) along with other 3 co-owners from her father. The property was owned by the father who had expired on 19.08.1975 and thereafter, the said property was devolved to assessee s mother, who died on 07.03.1989. After her death the property was devolved upon the assessee and her brothers and sister each having 1/4th share. All the 4 co-owners ente ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
