9911796707
TMI Blog2014 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 2006-07, claiming following substantial questions of law:- "i) Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal has fallen in error in applying the ratio of the judgment of the Hon'ble Court in the case of CIT v. Raja Malwinder Singh, (2011) 334 ITR 48 to the facts and circumstances of the present case? ii) Whether in facts and circumstances of the case, the Income Tax Appellate Tribunal has fallen in error in applying the provisions of section 55(3) of the Income Tax Act to compute the capital gain even though there was no cost of acquisition of the acquired land and thus no profits and gains could be computed on acquisition of the same? 2. A few facts relevant for the decision of the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion received on account of acquisition of land of the assessee was not exigible to tax as neither the assessee nor the previous owner had incurred any cost to acquire the asset. Vide order dated 15.5.2013, Annexure A.3, the Tribunal accepted the appeal by placing reliance on the Full bench decision of this Court in Raja Malwinder Singh's case (supra). Hence the present appeal by the assessee. 3. We have heard learned counsel for the appellant-assessee and perused the record. 4. Learned counsel for the assessee-appellant submitted that the cost of acquisition in the present case had to be taken as the cost to the previous owner under Section 49 of the Act. The explanation to Section 49 specifically provides that previous owner is one w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s incapable of ascertainment. Section 55(2) provides for taking the cost either equal to the market value as on 1.1.1954 or at the option of the assessee equal to the cost of acquisition of the previous owner. Section 55(3) provides that where cost of acquisition of the previous owner cannot be ascertained, it has to be taken to be equal to the market value on the date the asset was acquired by the previous owner. Explanation to section 49 provides that previous owner is the person not covered by the clauses mentioned in section 49(2) i.e. who acquires property otherwise than by way of gift, will or by succession. 6. In the present case, the assessee acquired the property by succession from previous owner. According to the stand of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue cannot be ascertained, it has to be equal to market value on a specified date at the option of the assessee. It is not the case of the assessee that land had no market value at all on the date of its acquisition. Contention that value was incapable of being ascertained, as already observed, the value in such case has to be taken as being equal to market value on a specified date." 6. Further, while concluding, it was held :- "Even where the cost of acquisition of capital asset cannot be ascertained but the asset has a market value, capital gain will be attracted by taking the cost of acquisition to be fair market value as on January 1, 1954, or on date statutorily specified or at the option by the assessee, the market value on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
