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2015 (3) TMI 529 - AT - Income TaxComputation of capital gain - Determination of fair market value as on 01-04-1981 - Held that:- In view of the order of the Tribunal in the case of Shri Kurian Joseph [2015 (3) TMI 484 - ITAT COCHIN] the assessing officer has no other way except to accept the value as on 01-04-1981 by taking 10% of the sale consideration. Therefore, it would remain only as an academic issue and would not serve any purpose to both the parties. By taking into consideration of the interest of the parties, this Tribunal is of the considered opinion that since the assessee has claimed only ₹ 1 lakh per cent which is far below 10% of the sale price, the same needs to be accepted. Accordingly, the orders of the lower authorities are set aside and the assessing officer is directed to accept the market price as on 01- 04-1981 at ₹ 1 lakh per cent. - Decided in favour of assessee. Disallowance of commission paid to brokers for selling the land - Held that:- There is a practice of payment of commission for sale of land. The commission is ranging from 1% to 3% depending upon the area, terms agreed upon between the vendor and the broker. This Tribunal is of the considered opinion that by taking into consideration of the practice of payment of commission ranging from 1% to 3% on the sale price and the details furnished by the assessee with names and addresses before the assessing officer, copy of which is available at page 24, the assessing officer is not justified in restricting the claim at 2% without making any further enquiry.The very fact that the payment was made to six brokers shows that their whereabouts also could not be traced out in the efflux of time. By taking into consideration all the circumstances, this Tribunal is of the considered opinion that disallowance of ₹ 2,16,250 may not have justified. Accordingly, the orders of the lower authorities are set aside and the disallowance of ₹ 2,16,250 is deleted. - Decided in favour of assessee. Claim of the assessee u/s 54F in respect of investment made - capital gain arose on sale of land was used for construction of residential house as submitted by assessee - CIT(A) allowed the entire claim of ₹ 1,27,50,000 - Held that:- In this case, the assessee claims that a sum of ₹ 50 lakhs was spent before the due date for filing of the return of income and what was spent after filing the return of income is only ₹ 60 lakhs. This fact was not considered by both the authorities below. The assessee has also expressed difficulty for depositing the amount in the capital gain account when the construction was going on. Therefore, this Tribunal is of the considered opinion that the matter needs to be reconsidered in the light of the decision of this Tribunal in Smt. Rosamma Korah (2014 (3) TMI 765 - ITAT COCHIN) and the judgment of the Kerala High Court in Dr Xavier J Pulikkal (2014 (4) TMI 211 - KERALA HIGH COURT). Accordingly, the orders of the lower authorities are set aside on this issue and the issue of claim of the assessee u/s 54F is remitted back to the file of the assessing officer. It is open to the assessee to place all the material facts which are relevant before the assessing officer. - Decided in favour of revenue for statistical purpose.
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