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2017 (1) TMI 1093 - AT - Income TaxCapital gains - Nature of receipt - assessee was not the owner of the property but had the control over property - legal owners - allowing the cost indexation towards the value of acquisition cost - as per DR assessee is not a owner of the piece of land which he sold to M/s NCCl - assessee has stated that he has safeguarded the property from unlawful encroachment and he is in the absolute control over the property since 1986 and that he is aware of legal disputes on the property and he has spent lot of money on representing legal disputes on the property Held that:- The assessee is not the owner of the property since the assessee has not purchased the property by proper deed, but, undisputedly has paid consideration of ₹ 15 lakhs to Shri Ali Asghar Ceizure and was having absolute control over the disputed property in his possession all these years, it shows that the assessee had absolute control over the property by which he is also a part of owner and also assessee had played the role of a owner in the agreement of sale between the disputed parties and M/s NCCL. Even though assessee’s name in the sale agreements is not shown as an owner, but, it is shown as one of the consenting parties. Moreover, assessee has received a portion of the sale consideration from this transaction i.e. ₹ 85.05 lakhs out of ₹ 166.8 lakhs (about 51%) of the total consideration. It shows that assessee is one among the parties, who sold the property to M/s NCCL. In case, the assessee is not the main person in the deal, there is no way the assessee would have received more than 50% of the sale consideration. In our considered view, the assessee is one of the selling parties in the deal and the assessee is eligible to treat this transaction as income from capital gains. Accordingly, the grounds raised by the revenue in this regard are dismissed. Assessee eligibility to claim ₹ 30 lakhs as cost of purchase in stead of ₹ 15.3 lakhs as allowed by the CIT(A) - Held that:- As per the agreement of sale submitted by the assessee, assessee has confirmed the payment of ₹ 15 lakhs to Shri Ali Asghar Ceizure, which was also confirmed by Shri Ali Asghar Ceizure in the same agreement, but, the assessee is supposed to pay ₹ 15 lakhs at the time of registration of sale deed. There is no proof or evidence placed on record to show that the agreement of sale is, in fact, completed. In the absence of any evidence to show that sale is complete by paying ₹ 15 lakhs to Shri Ali Asghar Ceizure, we are not in a position to grant any relief to the assessee with regard to the second installment of ₹ 15 lakhs. In our considered view, the assessee can claim ₹ 15 lakhs as cost of purchase with indexation benefit, not to the extent of ₹ 15.3 lakhs as allowed by CIT(A). Accordingly, this objection is rejected.
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