TMI Blog2012 (7) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... mother also acquired the property under her husband's will. She therefore, acquired the property by a mode of acquisition referred to in section 49(1)(ii). Thus the date of the acquisition of her share in the property is not relevant. The last previous owner of her share was therefore her husband's father and at the highest her husband - If therefore a capital asset becomes the property of the assessee in the circumstances mentioned in section 49(1) and the period for which it is held as determined by section 49(1) r.w.s. 2(42A) is more than the period stipulated in section 2(42A), the case would not fall within the ambit of a short term capital asset - the respondent must be deemed to have held this 50% share in the property also from 1.4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property to his wife and the respondent in equal shares. The respondent's mother expired on 21.02.2000 leaving behind a will bequeathing her 50% share in the property to the respondent. 4. The respondent sold the property during the assessment year 2005-2006 for Rs.9.50 corers and declared a long term capital gain of Rs.38,44,247/-. The respondent considered the date of acquisition of the property for the purpose of calculating the capital gains to be prior to 1.4.1981. The AO however, held that the actual date of acquisition must be considered for calculating the capital gains. He held the date on which the respondent inherited the property to be the relevant date and accordingly recomputed the capital gains. The recomputation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diately preceding the date of its transfer: Provided that in the case of a share held in a company [or any other security listed in a recognised stock exchange in India or a unit of the Unit Trust of India established under the Unit Trust of India Act, 1963 or a unit of a Mutual Fund specified under clause (23-D) of Section 10] [or a zero coupon bond], the provisions of this clause shall have effect as if for the words thirty-six months , the words twelve months had been substituted. (Explanation 1.) - (i) In determining the period for which any capital asset is held by the assessee - (a) ...................................................................... (b) in the case of a capital asset which becomes the property of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where a capital asset becomes the property of the assessee under a will or by inheritance, the cost of acquisition thereof is deemed to be the cost for which the previous owner of the property acquired it. The previous owner of the property is not necessarily the immediate previous owner from whom it is acquired by the assessee irrespective of the manner in which such person acquired the property. The Explanation to section 49(1) defines the expression previous owner of the property to be the last previous owner thereof who acquired it by a mode of acquisition other than that referred to in clauses (i) to (iv) of sub section (1) . Thus the ambit of the words previous owner of the property does not include a person who acquired the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 50% of the property inherited by the respondent from his mother, the period for holding would start from 21.8.1988, as she became the owner of her 50% share in the property only from that date under the will made by her husband who died on 21.8.1988. 14. This requires a consideration of the second issue viz. a computation of the period for which the respondent held that 50% portion of the property he acquires from his mother. 15. The respondent's mother also acquired the property under her husband's will. She therefore, acquired the property by a mode of acquisition referred to in section 49(1)(ii). In other words, the respondent's mother did not become the owner of the asset by a mode of acquisition other than than that referre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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