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TMI Blog2015 (8) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal of the assessee which was allowed, came to be confirmed. 2. The assessee is a firm and was in occupation of the premises No.135/1, Residency Road as a tenant for long numbers of years, having taken on lease from Sri.Mohd. Musa Sait Wakf. On account of the said land lord intending to develop the said property, assessee was approached for vacating the same and after negotiation, land lord offered portion of the built area to tenant in lieu of tenant surrendering his tenancy rights and as agreed upon. Pursuant to the said negotiation, a memorandum of understanding (MOU) was entered between the parties on 17.9.1999 whereunder it was agreed that the first party (landlord) would execute deed of lease with regard to 18% of undivided share i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and the assessee are not part of actual cost of construction. Hence, the capital gains as shown and calculated by the assessee came to be accepted and addition of Rs. 53,26,567/- made by the Assessing Officer came to be deleted. 4. Revenue carried the matter in appeal before the Tribunal which did not find favour and accordingly it was held that Long Term Capital Gains arrived at by the assessee is fair which does not require interference and the addition made on this amount which was deleted by the CIT (Appeals) came to be confirmed vide order dated 31.3.2009, which is under challenge in this appeal. 5. We have heard the learned Advocates i.e. Sri.K.V.Aravind, learned counsel appearing for the Revenue and Sri.A.Shankar, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as done by the assessee which was based on a clause in the agreement relating to valuation which indicated the cost of construction at Rs. 800 per sq.ft. and contends same is erroneous. He further submits that on these grounds the substantial questions of law formulated be considered in favour of the Revenue and against the assessee. 7. Per contra, learned counsel for the assessee would support the orders passed by the Appellate Commissioner as well as the Tribunal and contends that in the return of income filed by the assessee, the valuation as indicated in the agreement dated 23.8.2001 clearly indicated the basis for calculation of capital gains and the cost of construction having been indicated at Rs. 800/- per sq ft., proportionat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es is liable to be deleted without taking into consideration the additional expenditure incurred by the assessee for extra amenities? 9. We have heard learned counsel for the parties and perused the records. RE.SUBSTANTIAL QUESTION OF LAW NO.1:- 10. Insofar as this question of law is concerned, we are of the considered view the said issue is no more res integra in view of the fact that in ITA NO.775/2009 we have answered the same in favour of the assessee and as such it does not detain us long to hold that answering said question of law would only be a repetition. In the said appeal, which was also between the same parties, the question has been answered in favour of the assessee and accordingly it is answered. RE. SUBSTANTIAL QUESTION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cost valuation on the basis of cost of construction indicated by the builder in its books of accounts and same has been taken into consideration as the total project cost. In fact, Appellate Commissioner has noticed that the ledger account of the developer as on 31.3.2005 was also indicating that Rs. 1,42,84,405/- was the expenses booked on account of advertisement charges incurred and which had been paid by developer towards cost of construction and developer had also taken into consideration the amounts paid to the assessee for vacating the premises and the amount paid to the land lord towards cost of construction or project. On the said basis it has been held that these amounts would not form part of cost of construction. The non-refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely 50,000 sq.ft. super built-up area i.e., 50% constructed super built up area at the rate of Rs. 800/- per sq.ft of the cost of the construction. Rs.4,00,00,000/- (b) Consideration Rs.1,40,00,000/- Total Rs. 5,40,00,000/- 13. A perusal of the above clause would indicate for the purposes of valuation of the lease of undivided 50% share in the land in favour of the third party (developer) has been arrived at Rupees Four Crore by calculating 50,000 sq.ft. as the super built up area i.e. 50% of the constructed super built area by adopting the rate of construction at Rs. 800/- per sq.ft. and accordingly, the total sum payable has been arrived at Rupees Four Crore and the consideration of Rs. 1,40,00,000/- paid to the land lord ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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