9911796707
TMI Blog2015 (6) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... right of property in the year under appeal. 2. On The facts and circumstance of the case in law, the commissioner of Income Tax (Appeal) erred in confirming that the cost of acquisition of the subject property as nil. 3. Without prejudice the above and on The facts and circumstance of the case in law, the commissioner of Income Tax (Appeal) has erred in confirming the assessment of capital gain of property even though cost of acquisition of property has been taken as nil. 4. Without prejudice to above and n The facts and circumstance of the case in law, the commissioner of Income Tax (Appeal) has erred in confirming that Rs. 22,44,720/- is full value of consideration. 5. The appellant pray that addition of Rs. 22,44,720/- made in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost and four garages of 100 sq. ft each. Thus, assessee was entitled for Rs. 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 Rs. 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, and stamp duty was also paid on 02.12.2005 therefore, the transfer of the property was completed on 03.12.2005 and hence the long term capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Compensation-cash as per terms of development agreement 20,000 Capital Gains Rs.22,42,720 3. Before the first appellate authority, the assessee submitted that the development rights were given to the developer in the year 2000 and consideration of Rs. 80,000/- was received at that time only when the agreement was executed. On the execution of the agreement the co-owners have handed over the physical possession 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. ITA No. 361 of 2013, vide judgment and order dated 11.02.2015, the Hon'ble Court has distinguished the decision of Chaturbhuj Dwarkadas Kapadia Vs. CIT 260 ITR 491 (Bom) and held that in respect to the piece of land for which a transaction was acted upon, the capital gain would arise on the execution of the development agreement. Catena of other decisions of various Tribunals were also relied upon. 5. Regarding cost of acquisition taken at 'Nil' by the AO, he submitted that the property was devolved upon the assessee in succession from her parents. The property originally belonged to her father who had died in the year 1975. Therefore, by virtue of provisions of section 49(1), the cost of acquisition to the assessee shall be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 entered into a development agreement, vide agreement dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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