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TMI Blog2019 (1) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in holding that the compensation received by the assessee from transfer of development rights is not taxable under the provisions of long term capital gains in the Income- Tax Act? (B) Whether on the facts and in the circumstances of the case and in law, the Hon'ble Income Tax Appellate Tribunal was justified in holding that there was no cost of acquisition of the TDR when there was a cost of acquisition and when the assessee himself had furnished the cost of acquisition and computation of the long term capital gains to the Assessing Officer in course of the hearing ? (C) Whether on the facts and in the circumstances of the case and in law, the Hon'ble Income-tax Appellate Tribunal was justified in not adjudicating on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee's contention that 3 fats ½ were not provided by the builder to the assessee by way of exchange as part of sale consideration. The contention of the assessee was that the FSI of 5580 sq.ft. which was in relation to the said constructed 3 ½ fats was never transferred to the builder and the assessee had paid cost of Rs. 80 Lacs for such construction. The Commissioner further was of the opinion that the value of these fats which he estimated at Rs. 7 Crores was also part of the assessee's capital gain in addition to the sum of Rs. 3.80 Crores received by him. 5. The Tribunal was of the opinion that in absence of the cost of acquisition of the development rights, the TDR cannot be taxed as a capital gain. The Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of additional construction rights. In the present case the assessee had not transferred the land or the building but only the right of further development accruing by virtue of Development Control Rules. 8. Having heard learned counsel for parties and having perused the documents on record, we have no hesitation in coming to the conclusion that the entire issue is squarely covered by the Judgment of Division Bench of this Court in the case of Sambhaji Nagar Co-op.Hsg. Society Ltd. (supra). In the said decision the Court after referring to and relying on a decision of the Supreme Court in the case of CIT Vs. B.C. Srinivasa Setty (1981) 128 ITR 294 (SC) and in case of Union of India Vs Cadell Weaving Mill Co. P. Ltd. Reported in (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n concluding that the TDR which was generated by the plot/property/land and came to be transferred under a document in favour of the purchaser would not result in the gains being assessed to capital gains. The factual backdrop is noted by the Tribunal in para 3 and thereafter the rival contentions. The Tribunal concluded and relying upon its order passed in two other cases that what the Assessee sold was TDR received as additional FSI as per the D. C. Regulations. It was not a case of sale of development rights already embedded in the land acquired and owned by the Assessee. The Tribunal's conclusion and further to be found in para 11 is based on its view taken in the case of New Shailaja Co-operative Housing Society Ltd. The Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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