TMI Blog2015 (6) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... the mention of a lesser area in the Registered valuer’s report and Court decree is concerned, we find the Registered sale deed to be a more authentic document evidencing the details of the property transferred with the relevant khasra nos. etc. We, therefore, prefer to go with the Registered sale deed in preference to the other documents in so far as the question of determining the assessee’s share in land is concerned. If we so proceed by taking the higher area of the land transferred, the assessee’s claim for deduction for increase in the indexed cost of acquisition by a further sum of ₹ 38.76 lac merits acceptance. We countenance the impugned order on this issue - Decided against revenue. - ITA No.5402/Del/2010 - - - Dated:- 16-2-2015 - Shri R.S. Syal and Smt.Diva Singh jj For the Appellant : Shri Anil Kumar Goel, CA For the Respondent : Shri Vikram Sahay, Sr. DR ORDER Per R.S. Syal, AM: This appeal by the Revenue is directed against the order passed by the CIT(A) on 10.09.2010 in relation to the assessment year 2007-08. 2. The first ground is against the deletion of addition of Rs. ₹ 12.5 lac (sic- 18 lac) made by the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. The first thing which we need to ascertain is the amount paid by the assessee to Shri P.K. Dhingra, which would qualify for consideration and decision at our end. It is an admitted position that when on the earlier occasion this property became the subject matter of sale to Sh. Dhingra, the assessee received a sum of ₹ 12.50 lac in two instalments. It is further apparent that the assessee had to pay a sum of ₹ 25.00 lac to Sh. Dhingra pursuant to a Court decree. It is manifest from para 4 of the impugned order that the ld. CIT(A) has upheld the AO s finding on the assessee actually receiving a sum of ₹ 12.5 lac from Shri P.K. Dhingra on an earlier occasion and the resultant net payment standing only at ₹ 12.50 lac. There is no cross appeal from the side of the assessee assailing this finding of the ld. CIT(A). We will, therefore, proceed to consider the deductibility or otherwise of the net amount actually paid by the assessee to Shri P.K. Dhingra at ₹ 12.50 lac. 5. Section 48 of the Act provides the Mode of computation of income chargeable under the head Capital gains. This section provides for computing such income by deducting from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii), but only u/s 48(i). It is found that the Hon ble Bombay High Court in CIT vs. Miss Piroja C. Patel (2000) 242 ITR 582 (Bom) has held that the compensation paid by assessee to the hutment dwellers for vacating land before its sale is Cost of improvement deductible u/s 48(ii). Be that as it may, in any case, the deduction is certainly available u/s 48 in respect of payment made for removing any encumbrances on the property to be transferred. 8. Adverting to the facts of the instant case, we find that the dispute between the assessee and Shri P.K. Dhingra in connection with the transfer of this very property, which was earlier agreed to be transferred but the deal could not fructify, finally got settled by means of a Court decree under which the assessee was required to pay a sum of ₹ 25.00 lac. But for this payment, the assessee could not have transferred the property to the vendee in the year in question which fetched the instant capital gain. Such net expenditure of ₹ 12.50 lac, in our considered opinion, rightly deserves to be deducted u/s 48(i) as has been held by the ld. CIT(A). 9. If we strictly go by the provisions, then the sum of ₹ 12.50 lac re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tune of ₹ 38.76 lac, against which the Revenue has come up in appeal before us. 11. We have heard the rival submissions and perused the relevant material on record. There is no quarrel on the fact that the assessee s Registered valuer s report and the Court decree mention the lesser area. At this juncture, it is pertinent to note that the assessee was 1/5th owner of the total agricultural land admeasuring 223 Bighas and 16 Biswas. The claim of the assessee for increase in the share in agricultural land to the higher area stemmed from the fact that the difference between the two was on account of his share in common area meant for use by all the five co-owners. This can be seen from the Registered sale deed executed by the assessee as vendor in favour of M/s Aarone Infrastructure Pvt. Ltd., a copy of which is available on pages 11 onwards of the paper book. Page 12 categorically mentions that the Vendor, namely, the assessee, is the absolute owner of 1/5th share bearing different khasra nos. Page 13 reiterates that the assessee s 1/5th share of agricultural land measuring 223 Bighas and 16 Biswas is approximately 44 Bighas, 15 Biswas and 5 Biswans, that is, the highe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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