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TMI Blog2018 (12) TMI 1973X X X X Extracts X X X X X X X X Extracts X X X X ..... erty which has been transferred by the assessee in favor of the purchaser against certain consideration and therefore, the same could not be attributed towards sale of land as concluded by lower authorities. Assessee had received compensation against sale of residuary rights in the said property. This being the case, the provisions of Section 50C had no applicability to the facts of the case. Having reached aforesaid conclusion, we are of the considered opinion that the cost of acquisition of the said right in the hand of the assessee was to be taken as Nil since the property under question was acquired by the owner way back in 1966 and the same was sold by the owner in the year 1971 and it was that time when the benefit of cost of acquisition was available to the seller. We hold that the LTCG earned by the assessee during the year being net sale consideration received by the assessee upon conveyance. The benefit of cost of acquisition was not available to the assessee. The Ld. AO is directed to recompute the income of the assessee in terms of our above order. - I.T.A. No. 3864/Mum/2016 - - - Dated:- 5-12-2018 - Hon'ble Judges Pawan Singh, Member (J) and Manoj Kumar A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration of Rs. 34,958/- vide agreement dated 10/03/1971 wherein the possession of the land was also handed over the buyer. The attention was also drawn to the fact that the valuation of the land as per report dated 27/01/2009 of authorized valuer was Rs. 636 Lacs as against Rs. 640 Lacs reflected under the deed of conveyance. However, Ld. AO opined that the provisions of Section 50C were applicable to the facts of the case. Finally, adopting the deemed sale consideration as Rs. 842.11 as valued by DVO, the differential amount of LTCG was worked out as Rs. 23.30 Lacs which was added to the income of the assessee. 3. Aggrieved, the assessee agitated the same without any success before Ld. CIT(A) vide impugned order dated 29/02/2016 wherein Ld. first appellate authority adjudicated the issue by observing as under:- 4.3 Decision: I have considered the issue as brought out by the assessing officer and the contentions of the appellate. The 2 main issues that emerge out of the discussion above are: 1) whether the date of the transfer of the said property is to be taken as 1971 when an agreement was signed between Ratansi and Tata Power Co. Ltd. or is it to be 2009 when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aser in constructive possession of the property as the absolute owners thereof... . From the facts therefore that emerge from the said deed it cannot be the case of the appellant that the said property stood transferred in 1971 wherein an agreement of intent was signed between Ratansi and the Tata Power Co Ltd. There is nothing to exhibit that conditions of section 2 (47) of the IT act 1961 have been fulfilled wherein a deemed a transfer could also be held in the facts and circumstances of the present case. Therefore I uphold the decision of the AO in this regard that the date of transfer of the said property would be December 2009 being the date when the conveyance deed is actually signed and the property as mentioned above given over in constructive possession and the consideration received witnessing the said transfer. The ground of appeal in this regard therefore falls. As regards the 2nd ground which pertains to the date to be adopted for providing for indexation for the purpose of calculation of capital gain in the hands of the appellant, it is seen that from the facts of inheritance as emerge about the appellant inherits the share from her grandmother who had inherited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion for a sale consideration of Rs. 34,937/- computed at approx. area of 4991 Square Yards @ Rs. 7/- per square yard. The 10% of the consideration was payable as earnest money, 50% was payable upon handing over the formal possession whereas the balance 40% was payable upon completion of sale. As per the terms, the said sale was to be completed within a period of four months, time being the essence of the contract. Pursuant to the same, the possession of the land was handed over to the buyer on the same date which is evidenced by possession receipt as placed on record. 5.2 The Deed of Conveyance with respect to this property has been executed in favor of THCPL on 31/12/2009 which is executed by five vendors including the assessee. The recitals of the said deed contain the chronology of events through which the five vendors acquired the interest in the said property. The perusal of the same reveal that the assessee has got interest in the said property to the extent of 1/12th and the said interest has been acquired as executor of will of her mother Smt. Chandraveli, who, in turn, acquired the interest in the property from her father Shri Dhairyasinh. The perusal of the recital ..... X X X X Extracts X X X X X X X X Extracts X X X X
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