TMI Blog2009 (7) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... e adverse possession of a tenant which was subsequently got vacated - Since the assessee is deemed to be holding the property with effect from 27-12-1990 as owner, claim of indexation from that date is correct – Appeal allowed - 4313 (Mum.) of 2008 - - - Dated:- 15-7-2009 - R.K. Gupta, B. Ramakotaiah, JJ. Ajay C. Gosalia for the Appellant. A.K. Singh for the Respondent. Order Per B. Ramakotaiah, Accountant Member. This appeal by the assessee is against the order of the CIT(A) XIII, Mumbai dated 31-3-2008 for Assessment year 2004-05. 2. Assessee has raised the following two grounds : 1. The learned Income-tax Officer has erred in taking the date of acquisition as 6-1-1992 as against 27-12-1990 declared by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The payment to tenant was made as per Consent Terms arrived between the parties in respect of Writ Petition No. 3622 of 1999 filed in the High Court of Bombay. The Assessing Officer observed that since the assessee got possession only on 6-1-1992, it could be said that she held the property from that date in view of section 48. He accordingly calculated the indexed cost for taking 6-1-1992 into consideration. The indexed cost arrived at was Rs. 1,05,52,579 as against assessee s figure of Rs. 1,12,23,085. The Assessing Officer accordingly computed long-term capital gain. Assessee filed copies of purchase agreement dated 27-12-1990, supplementary purchase agreement dated 27-12-1990 and certificate under section 269UL(3) dated 13-2-1990 before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 on which the Department has granted certificate under section 269UL(3) on 13-2-1991. It was the submission that vide agreement dated 27-12-1990 the assessee has made initial payment and pending the certificate made security for the balance of Rs. 25,00,000 vide supplementary agreement dated 27-12-1990 and later on the amount was fully paid when the certificate was issued. It is also a matter of record that in respect of consent terms arrived between the parties in respect of Writ Petition No. 3622 of 1999 filed in the Hon ble Bombay High Court the payment to the tenant was also made and accordingly the assessee claimed indexation. Referring to the other agreements of purchase of Bhadran House and agreement of sale of Bhadran house, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered by the Hon ble Punjab Haryana High Court in the case of Ved Prakash Sons(HUF) (supra) which the learned CIT(A) also considered but held against the assessee. The facts and judgment of the Hon ble Punjab Haryana High Court is as under : A perusal of section 2(42A) of the Income-tax Act, 1961, as it stood at the relevant time makes it clear that a capital asset would be deemed to be a short-term capital asset in case such a capital asset is held by the assessee for not more than 24 months immediately preceding the date of its transfer, emphasis is upon the words held by an assessee . The word owner has designedly not been used by the Legislature. The word hold , according to the dictionary, means to possess, be the owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from that date following the principles established by the Hon ble Punjab Haryana High Court in the above referred case. Further the assessee is also entitled to consider the amount paid to the tenant as cost of improvement and accordingly she claimed the indexation for the amount paid, as per Explanation (iv) following the principles established by the Hon ble Bombay High Court in the case of Ms. Piroja C. Patel (supra). 9. The learned CIT(A) considered the decision of the Hon ble Bombay High Court in the case of R.R. Sood (supra). In our considered view the above-said decision does not apply. In the present case the property is purchased by way of agreement dated 27-12-1990 and the assessee has obtained the certificate under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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