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TMI Blog2001 (7) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... ited by the above mentioned ladies from their father, who died on 17-2-1991 in Nairobi. Their father had built the house long back i.e. much earlier to 1-4-1981 and had bequeathed the same to her daughters i.e. the assessee and her sister. 3. The assessee in her return of income for the assessment year 1993-94 duly disclosed the sale of the house, but claimed that no capital gain accrued on above sale as the cost of property by applying cost inflation index in terms of section 48(1)(a) of Income-tax Act was more than the sale consideration. Accordingly, no capital gain was shown in return. 4. The Assessing Officer did not agree with the above proposition. In his view, the indexed cost of acquisition was to be worked out with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property on 14-8-1992, the date on which the Estate Officer transferred the house in question in her name. While operating the assessment in the hands of the assessee, she took into account Explanation-III to proviso 2 of section 48 of Income-tax Act. The assessee has come up in appeal before the Appellate Tribunal. 8. I have heard both the parties at length. There is no dispute about the sale consideration or estimated value of the property as on 1-4-1981. The only dispute which requires to be determined is as to how the capital gain is to be worked out in terms of sections 48 and 49 of the Income-tax Act. The relevant provisions are to the following effect:- Section 48 'The income chargeable under the head "Capital gains" sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revious owner of the property acquired it, as increased by the cost of any improvement of the assets incurred or borne by the previous owner or the assessee, as the case may be In this (sub-section) the expression "previous owner of the property" in relation to any capital asset owned by an assessee means the last previous owner of the capital asset who acquired it by a mode of acquisition other than that referred to in clause (i) or clause (iii) or clause (iv) of this (sub-section) (underlined here and on page 5 by me to emphasise) 9. In the impugned order, the Revenue Authorities did take note of provisions of section 49(1) of the Income-tax Act but failed to correctly apply the statutory provision or indexed cost of acquisition. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probate of the Will of the assessee's father has already been granted by the High Court of Kenea at Nairobi in succession case No. HC 314 of 1991 vide order dated 27-5-1991. The above decision is a judgment in remp and has to be respected universally without any doubt. There is ample evidence on record to show that the father of the assessee had acquired the property much before 1981. In the report of the Valuation Officer, dated 11-2-1994, the year of construction of property was shown to be 1969-1972. The Assessing Officer, in the impugned order, has made the following observations:- "The facts of the case in brief are that Mrs. Pushpa So far along with her sister received through Will a kothi at Chandigarh. Both have 1/2 share in it. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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