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The ITO Versus Shri Hemant R. Tandel

2015 (5) TMI 509 - ITAT MUMBAI

Computation of capital gain - Compulsory acquisition of land by Government of Maharashtra from JHF - what is the date of acquisition of the impugned property? - Held that:- It is an undisputed fact that the Maharashtra Government acquired the land belonging to the father of the assessee which was acquired by him prior to 1972. It is also an undisputed fact that subsequent to the notification issued by the Ld. CIT(A), land was allotted to the assessee and the family members as compensation in lie .....

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acquisition resulting into long term capital gains as the transfer took place on 19.7.2007 i.e. after more than 36 months from the date of acquisition. - Decided against revenue.

Cost of acquisition of the impugned property - Held that:- In the case of Shri Atul G. Puranik (supra), the Tribunal has held that the actual cost or alternatively the market value of the leasehold right should be taken as cost of acquisition. In the present case, we find that the assessee has paid cost towar .....

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the Ld. CIT(A) and therefore we do not find any error or infirmity in this finding of the Ld. CIT(A). - Decided against assessee.

Sale consideration - Held that:- The assessee’s claim of taking the consideration as per agreement entered in 1999 does not hold any water as we have held that the leasehold right has come into existence only in the year 2003. We find that the assessee himself has furnished valuor’s report which states the sale consideration at ₹ 5,72,94,000/-. We fin .....

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al therefore assessee’s share comes to 25% - Held that:- Before us, the Ld. Counsel for the assessee stated that an affidavit from the sisters of the assessee have been filed before the Ld. CIT(A) and in the affidavit it has been specifically mentioned that the sisters have also received consideration from the sale of leasehold right. We find that there is no mention of the affidavit in the findings of the Ld. CIT(A). We, therefore, restore this issue to the file of the AO. The AO is directed to .....

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applies only to a capital asset being land or building or both, it cannot be made applicable to lease rights in a land. As the Ld. CIT(A) has followed this decision of the Tribunal and no contrary decision has been brought on record before us by the Ld. DR, we do not find any reason to interfere with the findings of the Ld. CIT(A). - Decided against revenue. - I.T.A. No. 1934/Mum/2012, I.T.A. No. 1835/Mum/2012, I.T.A. No. 1935/Mum/2012, I.T.A. No. 1836/Mum/2012, I.T.A. No. 1941/Mum/2012, I.T.A. .....

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pect of three different assesses. 2. At the very outset, both parties agreed that facts of all the three assesses are identical, on such agreement, we proceeded by taking up the facts in the case of Shri Hemant R. Tandel. On a clear understanding that the facts of remaining two assesses are identical to the facts of Shri Hemant R. Tandel. 3. The contentious issue in these appeals can be summarized in the following manner. i) What is the date of acquisition of the impugned property? ii) What is t .....

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f Maharashtra had decided to acquire the Gaothan land at Navi Mumbai area for the development of the Township by CIDCO Ltd. By virtue of the aforestated notification, the following land owned by Shri Ramchandra Mahadu Tandel were acquired by CIDCO. Survey No. Area in Sq. Mtr. Award No. Location Case No. Date of Acquisition 75/3 126 452 Nerul Vilage 212/72 29.8.1986 58/1 784 291 Nerul Vilage 212/72 28.12.1982 58/3 1214 291 Nerul Vilage 212/72 28.12.1982 58/12 202 291 Nerul Vilage 212/72 28.12.198 .....

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s ancestral property was acquired by the Government vide notification on 3.5.1972. However, the resolution passed by the Government is dt. 28.10.1994 therefore, it cannot be said that the Tandel family was aware whether they will get a compensation for the acquired land or not. Therefore, it can be safely concluded that after the notification dt. 28.10.1994, Tandel family knew that they will be compensated by the land under 12.5% Gaothan Expansion Scheme. 5.1. Shri Ramchandra Mahadu Tandel expir .....

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0.1998, CIDCO Ltd. issued letter of indent for allotment of plot under the scheme vide letter dt. 22.7.2003 and the intention for allotment of Plot No. 23B and 23C was communicated to the assessee and the family members vide two lease agreements dt. 3.11.2007 which was executed between CIDCO Ltd. and four family members of the Tandel family. 5.2. According to the AO, the date of allotment of the impugned plot has to be taken as 3.5.2007 which is the date of possession receipt issued by the CIDCO .....

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Act. 5.3. The claim of the assessee is that the right to the property in question was vested with the assessee on 29.8.2003 and 8.9.2003. On 19.7.2007, the assessee has transferred its right therefore the said transaction has resulted into long term capital gains. Further, the assessee s claim is that the impugned property was allotted in pursuance to the property acquired by the Govern ment and the property so acquired was the property of the Tandel family prior to 1972 therefore, cost as on 1 .....

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Tribunal in the case of Suresh Vasudeo Gore in ITA No. 1197/M/09 and Shri Atul G. Puranik in ITA No. 3051/M/10. In so far as the year of acquisition is concerned, the Ld. CIT(A) at page-16 para-vi fully drawing support from the decision in the case of Atul G. Puranik (supra) categorically held that the assessee became one of the co-owner on the date of allotment which is August and September, 2003 for the impugned two plots. The holding period being more than three years, the Ld. CIT(A) held th .....

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r as the applicability of Sec. 50C is concerned, the Ld. CIT(A) held that since the assessee has transferred lease hold right which is not akin to immoveable property therefore Sec. 50C cannot be applied. However, at the same time, the Ld. CIT(A) held that the sale consideration as per agreement entered into 1999 cannot be accepted, at the same time marked value also cannot be applied therefore the value adopted by the assessee s valuor has to be accepted. The Ld. CIT(A) observed that the assess .....

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sessee are in appeal. 8. Having heard the rival submissions, we have carefully perused the orders of the authorities below and the decisions relied upon by both parties. i) Date of acquisition- It is an undisputed fact that the Maharashtra Government acquired the land belonging to the father of the assessee which was acquired by him prior to 1972. It is also an undisputed fact that subsequent to the notification issued by the Ld. CIT(A), land was allotted to the assessee and the family members a .....

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sition resulting into long term capital gains as the transfer took place on 19.7.2007 i.e. after more than 36 months from the date of acquisition. The Ld. Departmental Representative relied upon the decision of the Hon ble High Court of Gujarat in the case of CIT Vs Nirmal Textiles 224 ITR 378, High Court of Patna in the case of Smt. Raj Rani Devi Ramna Vs CIT 201 ITR 1032. Both these decisions are misplaced as in both these decisions, the issue related to the date of transfer whereas the issue .....

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towards these impugned 2 plots at ₹ 1,63,212/- which has also been ascertained by the authorities and confirmed by them. As actual amount paid by the assessee for getting the leasehold right in these plots is available on record, we do not find it necessary for adopting market value of the same. As mentioned above, this view is also supported by the decision in the case of Shri Atul G. Puranik (supra). Accordingly, ₹ 1,63,212/- is the cost of acquisition of the two plots rightly tak .....

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7; 5,72,94,000/-. We find that the Ld. CIT(A) has accepted assessee s valuor s report on this issue. We, therefore do not find any reason to interfere with the findings of the Ld. CIT(A). Ground No. 1(b) of assessee s appeal is dismissed. iv) Co-owners for the impugned property - The assessee claimed that there were 9 legal heirs of Shri Ramchandra Mahadu Tandel, therefore, the impugned capital gains has arisen in 9 hands and the assessee s share in the said capital gain should be taken only 1/9 .....

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