TMI Blog2011 (3) TMI 1723X X X X Extracts X X X X X X X X Extracts X X X X ..... case and in law, learned CIT(A) erred in holding that if the assessee had not incurred any cost of acquisition on a capital asset and such capital asset does not fall in the category of the capital assets specified in section 55(2) then the Judgement of Hon'ble Supreme Court in the case of CIT Vs. C.C. Srinivas Shetty (1981) 128 ITR 294 (SC) shall apply and no capital gain shall be charged. 3) The appellant prays that the order of learned CIT(A) on the above grounds be reversed and that of the Assessing Officer be restored. 2. None appeared on behalf of the assessee despite issue of notice by RPAD. There is no petition seeking adjournment. Certain written submission has been filed by the Respondent Society. Under the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to construct the additional floors by virtue of DCR 1991 which could not be available to assessee on expenditure of money. Prior to DCR 1991, no society had any right to construct the additional floors. So it was not a tradable commodity. Suddenly, by virtue of DCR 1991, the right was conferred by the Government on the assessee. Such right exclusively belonged to the building owned by the society. It could not be transferred to any other building. Similarly, similar right belonging to other societies could not be purchased by assessee for the purpose of constructing additional floors in its won building. Therefore, such right had not inherent qualify being available on expenditure of money and therefore, cost of such asset could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the developer has loaded TDR bought from elsewhere on the said FSI for further development. Clause 3 of the above mentioned agreement states this fact which has not been doubted by the Assessing Officer. FSI as such, sold has no cost of acquisition and it has been held by the Hon'ble courts that no capital gains would result on the sale of such FSI. The action of the Assessing Officer, therefore, cannot be sustained. Since there is no capital gain accrued to the appellant, the question whether it has to be taxed under protective assessment or substantive assessment, is not being discussed here at all. 5. This decision is in consonance in the order of the Tribunal in the case of ITO Vs. Shri Ram Kumar Malhotra (2010)-TIOL-512-I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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