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TMI Blog2018 (6) TMI 1514X X X X Extracts X X X X X X X X Extracts X X X X ..... e indexation by substituting cost of capital assets to the previous owners who acquired the property before 1st April, 1981 by the market value as on 1st April, 1981 which is specifically referred to in Section 55 (2)(b) (ii) of the Act, would have no application to determine the cost of acquisition of tenancy rights which was a subject matter of sale. Cost of acquisition of tenancy, cannot be substituted by the fair market value as on 1st April, 1981, restored the issue to the Assessing Officer for the limited purposes to determine the cost of acquisition. This, in terms of Section 55(3) i.e. cost of acquisition to the previous owners or the market value on the date on which the capital asset become the property of the previous owner f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on April 01, 1981 as its cost of acquisition? (b) In the alternative and without prejudice to the above, whether the Tribunal ought to have held that in the absence of ascertainable cost of acquisition of the tenancy rights in the said property, as section 55(2) had no application, no capital gains could be charged to tax in respect of transfer of the same? 3 During the subject Assessment Year, the Appellants had sold their tenancy rights in respect of the property at 210, Walkeshwar Road, Bombay for ₹ 3.17 Crores. The Appellants while offering their share of income on sale of their tenancy rights under the head 'capital gains', sought indexation of the cost of acquisition i.e. the fair market value of the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be appropriate to reproduce the relevant provisions which have a bearing on this appeal. Mode of computation: 48: The income chargeable under the head 'Capital gains' shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely: ( i) expenditure incurred wholly and exclusively in connection with such transfer, (ii) the cost of acquisition of the asset and the cost of any improvement thereto. . . . . Cost with reference to certain modes of acquisition. 49(1) where the capital asset became the property of the assessee (i) . . . . . (ii) . . . . . (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81]], means the cost of the capital asset to the previous owner or the fair market value of the asset on the [1st day of April [1981]], at the option of the assessee; (iii) to (v) . . . . (3) Where the cost for which the previous owner acquired the property cannot be ascertained, the cost of acquisition to the previous owner means the fair market value on the date on which the capital asset became the property of the previous owner. 7 Re Question (a): (i) In terms of Section 48 of the Act, the income taxable under the head 'capital gains' is to be computed after deducting from the full value of consideration received on sale of capital asset, the cost of acquisition and improvement of the asset. Section 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 55 (2)(b) (ii) of the Act, would have no application to determine the cost of acquisition of tenancy rights which was a subject matter of sale. (iv) This view of the Tribunal, is a self evident position on plain reading of the provisions. Therefore, this question would not give rise to any substantial question of law. Thus, not entertained. 8 Re Question (b): (i) It is an accepted position before us that no submissions has been urged by the AppellantAssessee before the Tribunal on the issue raised in this question. In the absence of issue being urged before the Tribunal, as has been held by our Court in CIT v/s. Tata Chemicals 256 ITR 395, it is not open to urge this issue for the first time before this Court. (ii) I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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