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2018 (11) TMI 199 - ITAT KOLKATAComputation of long term capital gain - Sale of ancestral property - Exclusion of the amount paid to the unauthorized occupants directly by the purchase of the property - valuation taking into account the stamp duty value U/s 50-C as deemed full value of consideration - said property was sold by virtue of a tripartite agreement entered into by the assessee, three co-owners of the property and the persons who had pre-occupied the property, known as, ‘unauthorised occupants’ illegally with the developer - allegation of AO is that nothing found in the deed of sale that payment of ₹ 41 lacs to the unauthorized occupants, were agreed upon by the assessee. Held that:- We note that the sale deed was entered into among three parties, the first party being the assessee and other family members, the second party being the purchaser and the third party being the unauthorized occupants. The entire sale consideration was received by the assessee and other family members and the unauthorized occupants, and as such the allegation has no leg to stand and hence we do not agree with the assessing officer. The second allegation of the AO is that the vendor has no role in determining the quantum of payment to the unauthorized occupants (confirming parties). We note that since it was a tripartite agreement entered into among the assessee, purchaser and the unauthorized occupants(confirming parties), the quantum of the compensation was agreed upon jointly. The compensation was agreed upon by the parties and the same was directly paid by the purchaser to the unauthorized occupants (confirming parties). The assessing officer has failed to bring any cogent evidence on record to show that amount of ₹ 41,00,000/- has not been paid by purchaser to these unauthorized occupants. We do not find any force in the stand taken by the assessing officer as well as CIT(A), therefore, we delete the addition made by the assessing officer to the tune of ₹ 21,35,057/-. No infirmity in the computation of long term capital gain made by the assessee hence we accept the long term capital gain computed by the assessee to the tune of ₹ 1,82,577/-, and we direct the assessing officer to consider ₹ 1,82,577/- as long term capital gain declared by the assessee. - Decided in favour of assessee.
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