9911796707
TMI Blog2023 (7) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ct') for Assessment Year 2016-17, whereby and where under the income on the sale of property has been held to be short term capital gain and the claim of deduction under Section 54F of the Act has been denied. 2. We have heard the rival submissions made by the respective parties and we have also perused the relevant materials available on record. 3. The appellant filed its return of income under Section 139 of the Act on 19.07.2016 declaring total income at Rs. 18,54,950/- which was processed under Section 143(1) of the Act on 14.09.2016 with a refund of Rs. 160/-. The case was selected for limited scrutiny under CASS on the ground as to whether deduction from capital gains has been claimed correctly or not. Statutory notices were duly se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whereof mentioned is constructed property of 66.92 sq.mtr. of Tenement No.304 in Block No. M/41 of Saraswatinagar Housing Colony lying and situated at Survey No.44 Paiki of Final Plot Nos. 44 to 46 Paiki in the Town Planning Scheme No.31, in the District of Ahmedabad, Sub-District, Ahmedabad -3 (Memnagar Division, Vastrapur). However, the purchaser, namely, the daughter of the assessee failed to record her name in the City Survey Record of Ahmedabad, in the absence of clear title of the total area of land measuring about 302.86 sq.mtr. as was not mentioned in the original deed of conveyance entered into by the appellant and the Gujarat State Housing Board on 05.08.1986 neither conveyed to her. 5. On the other hand, the said Gujarat State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n at Page Nos. 62 to 92 of the paper book and translated in English version at Page Nos. 183 to 189 of the paper book filed before us. 7. Ultimately, on 09.10.2015, the land with constructed portion thereon sold to the third party by way of deed of conveyance appearing at Page Nos. 93 to 133 of the Paper Book No.1, the translated copy whereof is appearing at Page Nos. 190 to 209 of the paper Book No.2 filed before us, at a consideration of Rs. 2,31,00,000/-; the deed of conveyance executed by and between the appellant and Shri Rajubhai Merubhai Sohla on 09.10.2015 mentions the total area of land admeasuring about 302.86 sq.mtr. in respect of property of Tenement No.304 in Block No. M/41/304 in the Scheme namely "Saraswatinagar Housing Soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he argument advanced by the Ld. DR. He, thus, vehemently supported the orders passed by the authorities below. 10. The argument advanced by the Ld. Senior Counsel Mr. S. N. Soparkar is on two counts. According to him, the Schedule of property mentioned in the earlier deed of conveyance dated 05.08.1986 executed between the appellant and the Gujarat State Housing Board stood rectified from the constructed area of 66.92 sq.mtr. to total area of 302.86 sq.mtr. including 235.94 sq.mtr. open land adjacent to the house by and under the rectification deed dated 13.07.2015 executed by and between the appellant and Gujarat State Housing Board. Thus, the right, title and interest mentioned in the rectification deed dated 31.07.2015 relates back to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cannot arise because of the holding period is much less than 36 months. However, the admitted position remains like this that the assessee was in position of the entire plot of land since 01.01.1979 but the Schedule of property mentions therein only in respect of 66.92 sq.mtr. and not 302.86 sq.mtr. and therefore, the title transferred to the daughter is of course in respect to this portion of area of land of measuring about 66.92 sq.mtr. and not the total area 302.86 sq.mtr. Legally, the assessee has been conferred with the right of possession of the entire plot of land measuring about 302.86 sq.mtr. only by way of the deed of rectification dated 31.07.2015 but the same relates back to the original date of allotment dated 01.01.1976 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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