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2023 (7) TMI 495 - AT - Income TaxCapital gain on property gifted - Execution of sale deed instead of gift deed wrongly - assessee as Power of Attorney holder transferred part of plot to his daughter-in-law - AO on the basis of this sale deed has taken the full value of consideration u/s 50C - Assessee contention that the sale deed was wrongly executed instead of executing the gift deed - HELD THAT:- We note that in support of the contention that the sale deed was wrongly executed instead of executing the gift deed and that the consideration mentioned in the sale deed was never received by the assessee from his daughter-in-law, assessee filed an affidavit where he declared that sale deed has been wrongly executed, he was having no knowledge of transferring legal title at the time of execution, he executed sale deed instead of gift deed as per the advice of his advocate and that he has not received any sale consideration from daughter-in-law. Assessee vide his letter to the AO specifically explained that if he has any doubt, daughter-in-law can be produced to confirm the fact. However, the AO did not require the assessee to produce Smt. Asha Tambi. Thus the affidavit filed by the assessee is not controverted. Hon’ble Supreme Court in case of Mehta Parikh & Co. [1956 (5) TMI 4 - SUPREME COURT] has held that the rejection of affidavit filed by the assessee is not justified unless the deponent has either been discredited in cross examination or has failed to produce other supporting evidence when called upon to do so. On the direction of Bench the legal heir of assessee also filed affidavit of Daughter in law where also she affirmed that his father-in-law executed the sale deed instead of gift deed and that she has not paid the amount of Rs. 3 lacs as mentioned in the sale deed. We are of the view that no capital gain can be computed in respect of the sale deed executed in favour of Daughter in law Smt. Asha Tambi as it is only a gift to close relative and not a sale and, therefore, Ground No. 1 is allowed.
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