TMI Blog2015 (5) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 taken by 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1835/Mum/12, ITA Nos. 1935 1836/M/12 ITA Nos. 1941 1837/M/12 are cross appeals by the Revenue and the assessee against the very same order of the Ld. CIT(A) dt. 25.1.2012 pertaining to assessment year 2008-09. These three appeals and cross appeals are in respect 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 the cost of acquisition of the impugned property? iii) What is the sale consideration? iv) How many co-owners are there for the impugned property? 4. Briefly stated the facts of the case are that one Shri Ramchandra Mahadu Tandel who was the head of Tandel family had right on landed property at village Nerul prior to 1972. By Notification No. LAW/C/3369 dt. 3.12.1970 under section 4 of the L.A. Act 1894 and Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 expired on 22.11.1997 and the impugned property was inherited by his legal heirs. In pursuance to the scheme launched by CIDCO Ltd., application for allotment of land from all the co-owners whose lands were acquired by the Government were invited. Accordingly, the assessee and his family members made an application for allotment of land under the scheme on 12.10.1998 by paying a sum of ₹ 1,72,568/- to CIDCO Ltd. In response to the application made by the assessee and the family members dt. 12.10.1998, 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 and as the assessee has transferred the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken as cost of acquisition for these two plots. 6.2. In so far 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 assessee has given the value at ₹ 5,72,94,000/- and therefore the same has to be accepted as the value of sale consideration. 6.3. In so far as the number of co-owners is concerned, the Ld. CIT(A) observed that only 4 persons have signed the deal which means that the other members have been ousted altogether. The capital gain has arisen in the hands of only four co-owners, assessee s share being 25% has to be taxed accordingly. 7. Aggrieved by these findings of the Ld. CIT(A) both Revenue and assessee are in appeal. 8. Having heard the rival submissions, we have carefully perused the orders of the authorities b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) and therefore we do not find any error or infirmity in this finding of the Ld. CIT(A). Ground No. 1 (a) of assessee s appeal is accordingly dismissed. iii) Sale consideration - 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 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 1/9th . The Ld. CIT(A) has dismissed this claim of the assessee holding that only four members have signed the deal therefore assessee s share comes to 25%. Before us, the Ld. Counsel for the assessee stated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
