9911796707
TMI Blog2023 (4) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed by the assessee. Remaining 3/4th share of property, admittedly other three legal heirs had released their right in property in favour of the assessee on 16.02.2006 for a consideration of Rs.3 lakhs. Since, the assessee has acquired right over the property in respect of 3/4th share of property from 2006, he cannot claim indexed cost of acquisition from the date previous owner held asset, because, 3/4th share of property, has not been acquired in any one of the modes specified u/s.49 - AO to allow the benefit of indexation for 3/4th share of property from the year 2006 - we direct the AO to re-compute capital gains arising out of transfer of property by adopting cost of acquisition as directed by us hereinabove. Deduction claimed u/s.54 - amounts spent for construction of new building - We find that the assessee has obtained Demolition Re-construction Permission from Corporation of Chennai on 15.05.2012 and also obtained Building Plan Permission on 19.05.2012. If you go by the date of permission given by the Corporation of Chennai, then, it is within three years from the date of sale of original asset, which expires on 30.07.2012. But, fact remains that on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the re-computation of long term capital gains on various facets was wrong, erroneous, unjustified, incorrect and not sustainable in law. 3. The CIT (Appeals) erred in sustaining the adoption of the cost of acquisition being the Fair Market Value as on 1.4.1981 in the re-computation of long term capital gains as well as went wrong in sustaining the indexation in relation to the cost of acquisition adopted by the Assessing Officer without assigning proper reasons and justification. 4. The CIT (Appeals) failed to appreciate that the adoption of cost of acquisition and indexation adopted by the Assessing Officer in the re-computation of long term capital gains was wrong, erroneous, unjustified, incorrect and not sustainable in law and ought to have appreciated that the provisions of section 49(1) of the Act was completely overlooked while the judicial trend on the said issue was also brushed aside, thereby vitiating the related findings. 5.The CIT(Appeals) erred in sustaining the restriction of the claim u/s 54 of the Act in the re-computation of long term capital gains without assigning proper reasons and justification. 6. The CIT(Appeals) failed to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition as on 01.04.1981 in terms of provisions of Sec.49 of the Act. The assessee had claimed exemption u/s.54 of the Act, for purchase of residential house plot and construction of residential house thereon for a consideration of Rs.89,51,190/-. 4. During the course of assessment proceedings, the AO noticed that the assessee had computed indexed cost of acquisition by adopting Fair Market Value of the property as on 01.04.1981 contrary to the provisions of Sec.49 of the Act. Therefore, re-computed cost of acquisition and allowed benefit of indexation from 01.04.1981 in respect of 1/4th share of property received by the assessee by inheritance. However, for remaining 3/4th share of property, which assessee got right by way of Release Deed dated 16.02.2006, he has allowed indexation benefit from the FY 2006-07 and re-computed indexed cost of acquisition. The AO had also allowed deductions towards re-investment in purchase of another residential house property site to the extent of Rs.18,06,000/- which includes total consideration paid for purchase of property plus Stamp Duty and other incidental expenses. However, disallowed amount claimed to have been incurred for construction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight over the property by way of gift or will or inheritance. In this case, no doubt, the assessee has acquired his 1/4th share of property by inheritance, but remaining 3/4th share of property, has been acquired form other legal heirs by way of Release Deed by payment of consideration. Therefore, the assessee cannot claim benefit of indexation from the date previous owner held asset. As regards, deduction claimed u/s.54 of the Act, the Ld.DR submitted that except a simple estimation from Valuer and EB Bill, the assessee could not furnish any evidence to prove completion of house property within stipulated date. Further, if you go by EB Bills before demolition and after new construction, there is no substantial change in electricity consumption. Therefore, on the basis of EB Bill, it cannot be held that the assessee has constructed new house to allow the benefit. 7. We have heard both the parties, perused the materials available on record and gone through orders of the authorities below. The facts with regard to impugned dispute are that the assessee has sold a land and building at Kanchipuram on 22.09.2011 for a consideration of Rs.1.20 Crs. The impugned property had been origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to amounts spent for construction of new building for Rs.71 lakhs. The assessee claims that he had spent remaining amount of Rs.71 lakhs for construction of house property, for which, the assessee has produced necessary evidences, including the Building Permission issued by Corporation of Chennai, Planning Permission issued by Corporation of Chennai, Estimate for construction of residential building and relevant EB card for new building. The assessee had also obtained Valuation Report from approved Valuer along with photos of the new building and claimed that he has spent remaining amount for construction of house property within three years from the date of sale of original asset. We find that the assessee has obtained Demolition Re-construction Permission from Corporation of Chennai on 15.05.2012 and also obtained Building Plan Permission on 19.05.2012. If you go by the date of permission given by the Corporation of Chennai, then, it is within three years from the date of sale of original asset, which expires on 30.07.2012. But, fact remains that on the basis of Building Permission Plan obtained on 19.05.2012, it cannot be assumed that the assessee has completed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
