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2015 (7) TMI 173 - AT - Income TaxOwnership of property - value of cost of acquisition - unauthorizedly encroached school land for which he has no title/right - whether the assessee could not prove ownership of the property, therefore, have no legal right or title upon the asset, consequently, the income could not be taxed as long term capital gain - Held that:- Mere facts that certain entries were made in the balance sheet would not substantiate or justify the same to be adopted as the cost of acquisition unless such claim is substantiated as and when called upon the assessment proceedings. The assessee has failed to produce the same in the present proceedings despite repeated opportunities on various occasions. As the assessee has shown the sale of the immovable property during the year under consideration, the onus is on the assessee to prove that he is the owner of the property that has been sold. The proof can be substantiated only through the purchase agreement. As such, the value of cost of acquisition is being considered as ZERO or NIL. Totality of facts clearly indicates that the assessee is neither the legal owner of the property nor was having any document showing any right/title in his favour and uncontrovertedly the land was meant for a primary school and the assessee illegally encroached upon such land. Before us, the only argument of the assessee is that ownership of the property is not a pre-condition for the claim of capital gains. We are not agreeing with this proposition because how a gain can be claimed on a illegally occupied property which was a meant for a school and the assessee is not having any title/right over the land. Section 2(14) defines capital asset. The assessee right from assessment stage and till before this Tribunal has not produced any document regarding transfer/purchase of the impugned property in his favour as is evident from para 4.1 of the assessment order also. The assessee did not produce any document in support of the cost of acquisition or investment made for the property/capital asset. The Fatnani family is consisting of three brothers and encroached upon the adjacent plot meant for a primary school. Even in para-2 at page -3 of the impugned order, it has been admitted by the assessee itself that he occupied the school land unauthorizedly and illegally carried out construction. The totality of facts clearly indicates that the ld. Commissioner of Income Tax (Appeals) without appreciating the facts reached to a particular conclusion, therefore, such order cannot be upheld. - -Decided against assessee.
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