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TMI Blog2016 (5) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... d.CIT(A) has erred in confirming the order of the AO denying the indexation from the period of holding of previous owner were the property devolved on the assessee and certain modes of acquisition as per section 49(1) of the Act. 3.1 The brief facts of the case are that the assessee is an individual, and filed e-return on 30.09.2011 with total income of Rs. 54,62,079/-. The return was process u/s.143(1) of the Act and ws selected for scrutiny and notice u/s.143(2) was issued to the assessee. The Authorised Representative of assessee appeared from time to time and furnished the details called for during assessment proceedings. The Assessing Officer found that the assessee has disclosed long term capital gains of Rs. 43,72,592/- and income f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration before due date of filing of the return u/s.139(1) on 30.09.2011 in the Capital Gains Savings Scheme. And in the year, 2012, the assessee purchased a residential property on 12.04.2012 for consideration of Rs. 180 lakhs and calculated 'Nil' capital gains. In respect of second property at Cuddalore were land and buildings used for commercial purpose for running cinema theatre was sold by three separate documents as Sl. No. Doc. No. Land Area sq.ft. /value Building Area sq.ft/ value Machinery value Total Value 1 3034/10 15990/1,23,47,775 1937.5/14,03,225 1,37,51,000 2 3033/10 17967/1,38,81,893 7104.2/85,67,107 2,00,000 2,26,49,000 3 3035/10 8028/62,00,000 -- 62,00,000 The ld.A.R of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm capital gains recalculated at 75,06,495/- and subjected to tax. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld.CIT(A). 3.3. In appellate proceedings, the Authorised Representative of assessee appeared on the date of hearing, argued the case and filed written submissions and also explained the circumstances and calculations of long term capital gains, were the assessee had invested the long term capital gains in the residential house and claimed u/s.54 & 54F of the Act. The ld.A.R reiterated the submissions made before the ld. Assessing Officer on inheritance and special mode of acquisition, but the ld. Assessing Officer has unilaterally calculated the indexation from the year 1995-96, though as per the cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od 01.04.1981. Ld.CIT(A) considered the submissions and arguments advanced by the ld.A.R and perusing the findings of AO on a technical grounds, observed that the assessee's father had not inherited the property, but he has purchased in the year 1965-66, Therefore, the above provisions are not applicable and the distinguished the decision of the Bombay High Court and concurred with the findings of the AO and upheld the same. Aggrieved by the order of the CIT(A), the assessee is in appeal before us. 4. Before us, ld.A.R reiterated the submissions made in the assessment and in first appellate proceedings on provisions of inheritance, succession and gift. Ld.A.R explained that the property was devolved upon the assessee on succession after de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al mode of transfer in gift and succession. The action of the AO that the property was acquired by assessee's father and not inherited as per the provisions of the Act cannot be acted upon were assessee became a rightful owner as per Explanation 1(i)(b) to section 2(42A) of the Act and in the present case, assessee deemed to hold the property as on 1981 and indexed cost of acquisition has to be calculated from 01.04.1981 with the base year as 100. The assessee's father acquired property in 1965-66 along with his brothers and on partition in 1979, he became the absolute owner of entire asset and assessee has complied with the conditions of the previous owner as on 01.04.1981 and rightfully claimed the cost in inflation indexation from the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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