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TMI Blog2014 (1) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... First we shall take up the appeal of the assessee for A.Y.- 2007-08 being ITA No. 8847/Mum/2011. 3. The relevant facts of the case giving rise of this appeal are that a search and seizure action u/s 132 of the Income tax Act, 1962 (the Act) was conducted in the case of the assessee as well as other persons belonging to the same family/group. Pursuant to the said action, notice u/s.153-C was issued by the AO in response to which the return of income for A.Y.-2007-08 was filed by assessee. In the said return, long term capital gain arising from sale of shares held by the assessee in a company namely M/s. Kamala Mansion Pvt. Ltd. was shown by the assessee. The entire share capital of the said company was held by the assessee as well as other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separately a sum of Rs.55,28,500/- which was introduced in the company M/s. Kamala Mansion Pvt. Ltd. and utilized to repay the loans advanced by the erstwhile directors/shareholders. According to the AO, the said amount thus represented additional consideration for the transfer of property effected in the garb of the share transfer agreement and accordingly total consideration of Rs.4,67,45,000/- was taken by him for the purpose of working out the Long Term Capital Gain arising from the transfer of the property which was allegedly effected in the garb of share transfer agreement. Accordingly, the Long Term Capital Gain as worked out by him by taking the said amount as sale consideration was brought to tax by the AO in the hands of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o substitute indexed cost of the value of the immovable property while computing capital gains on sale of immovable property." 5. We have heard the arguments of both sides and also perused the relevant material on record. As submitted by the Ld. Counsel for assessee, similar additions made on account of long term capital gain by enhancing the value of sale consideration in the cases of other assessees belonging to the same family/group viz. Shri Irfan Abdul Kader Fazlani , Shri Iqbal Abdul Kader Fazlani and Shri Imran Yunus Fazlani , who had also sold the shares held by them in M/s. Kamala Mansion Pvt. Ltd., were disputed in the appeals filed before the Tribunal taking identical grounds and the Tribunal vide its order dated 2nd January 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration" (FVC) and it is a deemed definition. Accordingly, when the assessee transfers a capital asset being land or building or both, for a consideration lesser than the value adopted, assessed by any authority of a State Government, the value so adopted or assessed shall be deemed to the 'full value consideration' for the purpose of computing capital gains u/s 48 of the Act. The expression "assessable" has inserted into the statute for perspective application w.e.f 1.10.2009 whereas the assessment year under consideration is 2007-08 and 2008-09. The capital assets that are covered under the provisions are land or building or both. Expression "transfer" shall have to be a direct transfer as defined u/s 2(47) of the Act which does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the present assessee as well as all the material facts relevant thereto are similar to the cases of Shri Irfan Abdul Kader Fazlani , Shri Iqbal Abdul Kader Fazlani and Shri Imran Yunus Fazlani decided by the Tribunal, we respectfully follow the order of the Tribunal dated 2nd January 2013(Supra) and delete the addition made by the AO and confirmed by the Ld. CIT(A) on account of Long Term Capital Gain by enhancing the value of sale consideration. Ground No. 1 & 2 of the appeal of the assessee for the A.Y. 2007-08 are accordingly allowed. 7. As regards ground No. 3 of the appeal of the assessee for A.Y. 2007-08, it is observed that the issue involved therein relating to assessee's alternative claim has become infructuous as a resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd assessed by learned Assessing Officer on the ground that depreciation is being claimed on the building as per Profit & Loss account and Balance sheet of BLUE DIAMOND REALATORS P LTD which also is an error the appellant has not claimed any depreciation in the return of Income. 4. Without prejudice on the facts and circumstances of the case and in law the Learned CIT(A) erred in not considering the ground of the appellant to substitute indexed cost of the value of the immovable property while computing capital gains on sale of immovable property. 9. As is evident from ground No. 1 and 2 raised in the appeal of the assessee for A.Y. 2008-09, the issues involved therein are similar to the issues involved in ground No. 1 and 2 of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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