TMI Blog2011 (11) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ld. CIT(A) on the issue as there is no contrary material on record. As regards valuation of flat as on 1.4.1981 the admitted facts of the case are that the value declared by the assessee is supported by valuation report of a Registered Valuer. The AO has taken different valuation without obtaining valuation report from the DVO. The AO has taken the value as on 1.4.1981 on other basis. We are of the view that assessee’s valuation as on 1.4.1981 is supported by valuation by a technical person i.e. report of a registered valuer and contrary to that no such material or departmental valuation report is available on record. Merely on the basis of other general enquiries the valuation declared by the registered valuer cannot be substitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings the AO noticed that the assessee has computed capital gain on sale of flat at Mumbai as under :- The computation of long term capital loss was made as under:- Sale price of Premkutir flat 17,750,000 Less: (a) Paid to Mrs. Uma Kamalkishore Seth for vacating the portion occupied by her 5916000 (b) Prem Kutir Old dues 315214 6231214 Less: (a) Transfer fees of society 50% borne by us 443750 (b) Legal fees (Old new) 200000 (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,72,800 Long term capital gain Rs.1,16,35,950/- Assessee s share at 1/7th part Rs.23,05,136/- The ld. CIT(A) confirmed the recomputation made by the AO and dismissed the assessee s appeal. 5. The ld. AR submitted that there was some dispute relating to various properties in the family including the properties sold and for which the assessee has declared capital gain. The dispute was resolved through mutual consent which was approved by Hon ble Bombay High Court. As per mutual consent the assessee has to pay ₹ 59,16,000/- for vacating the flat and other properties. The AO has wrongly allowed only 1/3rd o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to appreciate the fact that the appellant had sufficient interest free funds available to advance the loan, and the interest bearing funds were utilized for the purpose of business only. Ld. CIT(A) ought to have deleted the disallowance made by AO. 8. The ld. AR submitted that ld. CIT(A) while confirming the order of AO has followed the decision of Hon ble Punjab Haryana High Court in the case of CIT vs. Abhishek Industries Ltd. 286 ITR1 which has been overruled by Hon ble Supreme Court in the case of Munjal Sales Corporation vs. CIT (2008) 298 ITR 298 (SC). Accordingly the claim may be allowed. 9. The ld. DR on the other hand relied on the order of ld. CIT (A). 10. We have heard the ld. representatives of the parties and per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002, which stand in the name of Mr. Shyam Seth but are in the possession of the defendants. 4.6 Transfer the tenanted premises being room nos.39 in Bharat Bhavan 462-472, Kaibadevi Road, Princess Street, Mumbai 400 002, which stand in the name of the late Mr. Kamalkishore Seth and are in the possession of Mr. Shyam Seth without demanding any further consideration for such transfer. 4.7 Transfer the 6 shares of the Chikhal Market Company Ltd. bearing Share Certificate Nos.1676 to 1680 and 2243 issued by the Company in the name of Shamsunder Seth along with the use, occupation and possession of the Shop No.89 situated at Swadeshi Market, 89, Krishna Gulli, Kalbadevi Road, Mumbai 400 002. The ld. CIT (A) observed that payment of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rejected. The AO is directed to recalculate the capital gain as per above discussion. 11. As regards the additional ground, we have heard the ld. representatives of the parties and additional ground is admitted. We find substance in the submission of ld. AR that the judgment of Hon. Punjab Haryana High Court in the case of Abhishek Industries vs. CIT (supra) has been reversed by the Hon. Supreme Court in the case of Munjal Sales Corporation vs. CIT 298 ITR 298 (SC). Therefore, the ld. CIT (A) s order is set aside. However, the facts of the case are required to be considered in accordance with law. We, therefore, find it appropriate that this matter should be restored back to the file of AO for deciding the issue afresh as recomp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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