TMI Blog2017 (2) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness along with the tenancy rights vide deed of assignment dated 21/11/1950 for ₹ 9,500/- This amount of ₹ 9,500/- paid for acquiring ongoing concern also included amount paid by the appellate firm for acquiring the tenancy rights. We also agree with the Ld. CIT(A) that the A.O has not given correct effect to the order of the Tribunal. It is apparent form the deed of assignment that a sum of ₹ 9,500/- was paid by the appellant firm in 1950 towards the acquisition of business including tenancy rights. We further noticed that copies of Agreement dated 19/09/1950, Letter dated 21/11/1950 indicting therein transfer of business along with benefit of tenancy right, Power of Attorney dated 21/11/1950 given by Assignor, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al filed by the assessee against rectification order passed by the ACIT 11(3) u/s 154 of the Income Tax Act, 1961 (in short the Act ). 2. Brief facts of the case are that the assessee firm engaged in running nursing home, filed its return of income declaring the total income of ₹ 2,23,012/-. Assessment order u/s 143(3) was framed by the A.O determining the total income of ₹ 74,07,590/- after making addition of ₹ 71,57,500/- as long term capital gain on transfer of tenancy right. 3. Aggrieved by the order of A.O, the assessee preferred first appeal before the Ld. CIT(A), who after hearing the assessee confirmed the assessment order. Against the said order the assessee preferred second appeal before the ITAT. The ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is entitled to deduct index cost of acquisition of tenancy rights. The department in appeal before the Tribunal against the said order passed by the Ld. CIT(A) on the following effective grounds:- 1. On the facts and in the circumstances of the case and in law, the CIT(A)-2, Mumbai has erred in holding that taking the cost of acquisition of tenancy rights at NIL by the A.O was mistake apparent from records. 2. On the facts and in the circumstances of the case and in law, the CIT(A)-2, Mumbai has erred in directing the A.O to work out capital gain on surrender of tenancy rights after taking into account the cost of acquisition of tenancy rights as worked out by the registered approved valuer and allow the benefit of indexation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisition of tenancy rights and granting benefit of indexation by observing as under:- Therefore, we deem it fit and proper to partly modify the Tribunal order dated 27/07/2005 by remitting the limited issue of ascertainment of the cost of acquisition of tenancy rights if nay and granting benefit of indexation in respect of the same. We, however, make it clear that onus is on the assessee to demonstrate that there was indeed a cost of acquisition for the tenancy rights and to quantify the same. In case the assessee can successfully demonstrate the cost of tenancy rights, the assessing officer shall give proper deduction from the capital gain by way of reducing the indexed cost of acquisition of tenancy rights for calculating capital ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/1950, Suit filed by landlord for eviction of the premises and Consent terms and order of the small causes court in regard to surrender of premises by the appellant firm etc. were made available by the assessee to the AO during assessment proceedings. On the basis of the said documents the AO could have safely concluded that the assessee firm had paid ₹ 9,500/- in 1950 towards acquisition of business including tenancy rights. Hence, in our considered view the AO has wrongly treated the cost of acquisition of tenancy as NIL. 10. In DCIT vs. Shri. Bhupindra Singh Anand in ITA No. 7743/M/2012 for the A.Y. 2007-08, the co-ordinate Bench vide order dated 12.9.2014 has decided the similar issue in favour of the assessee and against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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