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2008 (2) TMI 662 - AT - Income TaxRevision u/s 263 - Capital gain computation - date of acquisition of the right over the property by the assessee - benefit of indexation on the cost - registration of the conveyance deed is ab initio void - erroneous and prejudicial to interest of revenue - HELD THAT:- As per section 2(14) the rights in flat, acquired by the assessee on execution of purchase agreement, come within the purview of the term ‘capital asset’. From the perusal of language used in Explanation (iii) to section 48 of the Act, which provides for manner of computation of indexed cost of acquisition, it is apparently clear that it refers only to cost of acquisition and not actual payments made by the assessee, hence, there is no merit in the alternate contention of the revenue that the benefit of indexation should be given on the basis of dates of actual payments made by the assessee. We also find that the issue of indexation, in such circumstances, is directly covered in favour of the assessee by the decision of the Tribunal in the case of Charanbir Singh Jolly [2005 (8) TMI 576 - ITAT MUMBAI], hence, respectfully following the same, we hold that the assessment order is correct in law. Thus, on merits, the issue is covered in favour of assessee, however, regarding jurisdiction for invoking the provisions of section 263, we would like to add that the assessee filed necessary details before the Assessing Officer and the Assessing Officer has passed assessment order after taking into consideration the same, hence, merely for the reason that no specific findings have been given in the assessment order, the same cannot be said have been passed without application of mind. In this view of the matter, we cancel the order under section 263 passed by the ld. CIT. In the result, appeal filed by the assessee stands allowed.
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