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TMI Blog2017 (4) TMI 1562X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised before the lower Authorities and this is a new plea taken by the ld.A.R before us. The lower authorities have no occasion to consider this plea. Being so, in the interest of justice, we remit the issue back to the file of Ld.CIT(A) for denovo consideration and decide after giving opportunity of hearing to the assessee. Before the Ld.CIT(A), the assessee is at liberty to present necessary documents in support of claim made by the assessee. At this stage, we refrain from adjudicating any other grounds raised before us. - I.T.A. No. 43/Mds./2017 And I.T.A. No. 44/Mds./2017 - - - Dated:- 19-4-2017 - Shri Chandra Poojari, Accountant Member And Shri G. Pavan Kumar, Judicial Member For the Appellant : Mr. G. Baskar, Advocate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived from the property without power of alienation b) The assessee and his brother (Deep David) can enjoy all benefits derived from the property along with power of alienation after the lifetime of their father. c) The assessee and his brother however sold the property with the consent of their father on 12.09.2012 for ₹ 4.57 crores and sale consideration was offered in their hands as follows:- Roopam David 49.98 lakhs Roshan David 2.03 crores Deep David 2.03 crores While computing the capital gains, the assessee took the benefit of cost of asset to the previous owner and indexed cost of asset to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on Explanation (iii) to proviso of Sec.48 of the Act denying the assessees claim for cost of indexation to the previous owner, i.e. as on 01.04.1981. The AO relying on Explanation (iii) to proviso of Sec.48 of the Act allowed index cost of acquisition to that of F.Y 2005-06, i.e. the date o Settlement deed dt. 10.10.2005 and calculated LTCG at ₹ 2,18,17,142/-. The assessee has made a investment into purchase of residential properties in the name of himself along with father Shri Roopan Rajnookant David and brother Sh Roshan David for total of ₹ 2,09,98,430/-. The AO considered 50% ₹ 2,18,17,142/- of such investment amounting to ₹ 1,04,99,215/- as deduction and assessee has also made investment u/s 54EC of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner will be lost and for Shri Deep David and Shri Roshan David the cost of acquisition will be NIL. Moreover, as the provision of sec. 49(1) r.w.s. 2(42A) the period of only Shri Deep David and Shri Roshan David will be a short term period as the transfer of asset does not get the benefit of period of holding to that of previous owner in view of sec. 49(1) as the asset is not inherited to Shri Deep David and Shri Roshan David. Considering this factual aspect, father of Shri Deep David and Shri Roshan David had no right to alienate the property. Therefore, though he is shown as confirming party in the sale deed, do not get share in the property. Accordingly, the sale consideration of the property becomes taxable only in the hands of Shri D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s.54EC of the Act will not be available to the assessee. In view of the above, AO is directed to withdraw the deduction granted to the assessee u/s.54EC of the Act. Against this, the assessee is in appeal before us. 4. At the time of hearing, assessee made a plea that provisions of the section 46 of Transfer of Property Act, 1882 is applicable in this case. As such, the Ld.CIT(A) is not justified in enhancing the assessment by withdrawing the cost of indexation to the previous owner and exemption u/s.54 of the Act. Ld.A.R submitted that computation of capital gains as short term capital gains and also withdrawal of the exemption u/s.54EC is not justified. 5. On the other hand, ld.D.R submitted that the assessee took a new plea wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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