TMI Blog2019 (1) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... s specified in sub-section (2) of section 55. Taxing the value of 3 fats as a capital gain, the Revenue has proceeded on completely erroneous basis. The assessee had withheld portion of available FSI for 3 fats which was constructed by the builder at the cost of the assessee and the fats were thus acquired by the assessee. All this was part of argument between the assessee and the builder. In any case, once we hold that any receipt from transfer of TDR in the present case cannot be taxed as a capital gain and this question would itself become academic. Tax Appeal is dismissed. - INCOME TAX APPEAL NO. 822 OF 2016 - - - Dated:- 7-1-2019 - AKIL KURESHI B.P. COLABAWALLA, JJ. Mr. P.C. Chhotaray for the Appellant. Dr. K. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e brief facts are as under- While scrutinizing the return filed by the assessee for the Assessment Year ( A.Y. for short), the Assessment Officer ( A.O. for short) questioned the assessee for not offering a sum of ₹ 3.80 Crores to capital gain. Rejecting the assessee's contention, the A.O. taxed such receipt as a capital gain in the hands of the assessee after granting statutory adjustments. This question arises on the background of the assessee having sold the development rights referred to as TDR for the sale consideration of ₹ 3.80 Crores. The contention of the assessee was that in absence of any cost of acquisition of the development right, the capital gain tax cannot be charged. 3. In appeal, after one round, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent question of transfer of constructed area by the builder to the assessee. 6. Appearing before us the Counsel for Revenue vehemently contended that the Tribunal has committed an error in applying the decision of this Court in the case of Sambhaji Nagar Co-op. Hsg. Society Ltd. (supra) since the facts are different. He relied on a decision of the Tribunal in the case of Chiranjeev Lal Khanna Vs. ITO in support of his contentions. He submitted that the Tribunal committed an error in not examining the question of transfer of 3 fats to the assessee. 7. On the other hand, learned counsel for the assessee opposed the appeal contending that there has been consistent view of this Court starting from the decision in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he acquisition of which no cost at all can be conceived. In the present case as well, the situation was that the FSI/TDR was generated by the plot itself. There was no cost of acquisition, which has been determined and on the basis of which the Assessing Officer could have proceeded to levy and assess the gains derived as capital gains. It may be that sub-section (2) of section 55 clause (a) having been amended, there is a stipulation with regard to the tenancy rights. However, even in the case of tenancy right, the view taken by the Hon'ble Supreme Court, after the provision was substituted with effect from 1st April, 1995, is as above. The further argument is that the tenancy rights now can be brought within the tax net and in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee had not incurred any cost of acquisition in respect of the right which emanated from 1991 Rules, making the Assessee eligible to additional FSI. The land and building earlier in the possession of the Assessee continued to remain with it. Even after the transfer of the right or the additional FSI, the position did not undergo any change. The Revenue could not point out any particular asset as specified in sub-section (2) of section 55. The conclusion of the Tribunal is imminently possible and in the given facts. That is also possible in the light of the legal position as noted by language of section 55(2) and the Judgment of the Hon'ble Supreme Court, which is in the field. 9. We notice that this view was followed in later ..... X X X X Extracts X X X X X X X X Extracts X X X X
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