TMI Blog2007 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Income-tax Appellate Tribunal, Bangalore Bench in I. T. A. No. 678/bang/99 on March 5, 2002. 2 The assessee is one of the daughters of one A. W. S. Barnard. A. W. S. Barnard died leaving behind a will appointing one Mrs. Elsie F. Barnard, Mr. Robin Alexander Barnard and Mr. David Barnard, as executors, who were all residents of the United Kingdom. A. W. S. Barnard owned a residential house situated in Bangalore. As per the will, the executors were required to obtain probate of the will and thereafter sell the residential property and divide the sale proceeds and distribute the same to the three sons and a daughter of A. W. S. Barnard. After the death of A. W. S. Bar nard, the executors filed probate proceedings and obtained the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses incurred towards legal and professional taxes, executors expenses in India, executors expenses in England and the court fee paid to obtain the letter of administration. Against the order of the Commissioner of Income-tax (Appeals), an appeal was filed before the Tribunal and the same has also been rejected. Against the concurrent findings of the authorities below, the present appeal is filed, raising the following substantial question of law : "Whether the assessee can claim deduction incurred by her while computing the capital gains under section 48(1) of the Income-tax Act towards the expenses incurred by the executors for legal and professional charges and court fee expenses ?" 3.We have heard learned counsel for the parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forced to file a suit in order to evict the unauthorised occupant and any expenses incurred to get the possession of the property by the executors has to be treated- as expenditure incurred in connection with the transfer of the said property. Similarly, he contends the court fee of Rs. 1,23,000 paid by the executors in order to obtain the letter of administration has to be treated as expenses incurred by the executors towards the transfer of property, since they could not have sold the property without obtaining such probate and the letter of administration. To support his view, he relied upon the judgment reported in CIT v. Miss Piroja C. Patel [2000] 242 ITR 582 (Bom) and requested the court to answer the question of law framed in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a probate, the letter of administration will not be granted I the executors. Therefore, the Department cannot expect the executors spend the money from their pocket in order to obtain the letter administration. Therefore, the amount spent by the executors to obtain probate and letter of administration has to be treated as expenditure incurred to transfer the property. Similarly, without paying the court fee, no letter ct administration would be issued by the court. Therefore, Rs. 1,23,000 paid by the executors as court fee at the time of obtaining the letter of administration has to be treated as expenditure incurred in connection with the transfer of property. 8. Then the last question to be considered by us is, whether the amount spen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law framed in favour of the assessee. 10. In so far as the judgment relied upon by the Revenue is concerned, in the aforesaid case a sum of Rs. 41,507 was claimed by the assessee towards lawyer fee, travelling expenses and damages for wrongful detention of the property. The court, while doubting the genuineness of the claim of the assessee therein, has rejected the contention of the assessee. Here the assessing Officer or the Commissioner of Income-tax (Appeals) are not doubting the claim made by the assessee. But the contention of the Assessing Officer in the instant case is that the amount claimed by the assessee are not in connection with the transfer of the property. Therefore, the judgment relied upon by the Revenue has no applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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