TMI Blog2016 (1) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... quisition of the asset in question to be the cost of acquisition in the hands of the previous owner. The flat in question was inherited by the assessee from his grandmother and the assessee obtained the affidavit cum declaration in August 2006 and thereafter the society carried out the transfer in the name of the assessee. In fact, the assessee did not inherit the property directly from her grandmother but from sons and daughters of grandmother. Even as per the provision of the Act, it is the cost of the previous owner which has to be reckoned, thus, in view of section 2(45A) of the Act r.w. Explanation-1 and the circumstances mentioned in section 49(1) of the Act, the cost of acquisition of the asset shall be deemed to be the cost for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby denying claim of deduction u/s 54EC of the Income Tax Act, 1961 (hereinafter the Act). 2. During hearing of this appeal, the crux of argument advanced by Shri Paresh Shoparia, ld. counsel for the assessee is identical to the ground raised by explaining that the flat in question was inherited by the assessee and there was a delay on the part of the society to transfer the shares/property to the assessee for which the assessee should not be penalized. Our attention was invited to various pages of the paper book. On the other hand, Shri, Vijay Kumar Soni, ld. DR, defended the conclusion arrived at in the impugned order by contending that it was rightly treated as short term capital gain. 2.1. We have considered the rival submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x (Appeals), the stand taken in the assessment order was affirmed by observing that the grandmother of the assessee died intestate (without will), therefore, the law of succession of property, first, devolved on the sons and the daughters of Ms Kantaben K Shah and the property was acquired by way of family arrangements, therefore, the capital gain, arose on sale of property is short term capital gain. The assessee is in further appeal before this Tribunal. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, there is no dispute to the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in so as to mean- capital gain arising from the transfer of short term capital asset (as define in section 2(42A) of the Act). As per section 2(42A) of the Act, short term capital asset, means, a capital asset held by an assessee not more than (a) 12 months (up to 31/03/1969,) (b) 24 months (between 01/04/1969 and 31/03/1974), (c) 60 months (between 01/04/1974 and 31/03/1977) and (d) 36 months (w.e.f 01/04/1978) Immediately preceding the date of its transfer So far as, the determination of holding period, exclusion and/or inclusion, is concerned according to clause (i) of Explanation 1 (up to 31/03/1995) Explanation, to section 2(42A) of the Act, in determining the period for which any capital asset is held by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company or institution, as the case may be, making such offer. If the provision of section 2(42A) is analyzed with respect to section 49 which deals with cost with reference to certain mode of acquisition, sub-section (1) says where the capital asset became the property of the assessee, (i) On any distribution of asset on the total or partial partition of the Hindu Undivided family, (ii) Under a gift or will, (iii) (a) by succession, inheritance of devolution, or (b) on any distribution of asset on the dissolution of a firm, body of individual, or other association of person, where such dissolution has taken place at any time before 1st day of April, 1987 or (c) On any distribution of asset on the liquidation of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transfer in the name of the assessee. In fact, the assessee did not inherit the property directly from her grandmother but from sons and daughters of grandmother. Even as per the provision of the Act, it is the cost of the previous owner which has to be reckoned, thus, in view of section 2(45A) of the Act r.w. Explanation-1 and the circumstances mentioned in section 49(1) of the Act, the cost of acquisition of the asset shall be deemed to be the cost for which the previous owner of the property acquired it as increased by the cost of any improvement of the asset incurred or borne by the assessee, as the case may be. The two sons/daughters who in turn gifted the property to the assessee on 08/08/2006, thus, this is the relevant date with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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