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TMI Blog2017 (4) TMI 1562X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the issues are common nature, these two appeals are clubbed together, heard together and disposed off by this common order for the sake of convenience. 2. The common issues raised in these two appeals are as under:- 2. The CIT(A) erred in enhancing the assessment without any justifiable reason. 3.1. The CIT(A) erred in holding that what was transferred by the assessee is only a short term capital asset, thereby withdrawing the deduction u.ss.54F and 54EC of the Act. 4.1 The CIT(A) failed to note that the assessee acquired the said property as per the terms of the Deed Settlement dated 10.10.2005 and as such he is entitled for benefit of indexation from the day the previous owner acquired it. 3. The facts of the case are that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Settlor and his wife, Shri Roopan Rajnookant David can take possession of the said property and can enjoy the property during his lifetime without any power of alienation. Further after the lifetime of Shri Roopan Rajnookant David, the Settlee, Shri Deep David and Shri Roshan David (sons of Settlee and the grandsons of Settlor) can jointly take possession of the subject property and can enjoy the property in equal share absolutely with all powers o alienation. However, during the lifetime of Shri Roopan Rajnookant David th property was sold by Shri Deep David and Shri Roshan David. While doing so, the consent of Shri Roopan Rajnookant David was also taken. AO by considering the fact that Shri Roopan Rajnookant David had no right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty is conveyed to through inheritance. The assessee relied on the case laws like Bombay High Court, CIT Vs. Manujula J in 16 Taxmann.com.40(2011) and other case laws will not be applicable as in this case, the transfer of asset from grandfather to father and to grandson is not through inheritance. And on such sale of asset, where asset is not acquired by inheritance, the benefit of Sec.49(l) of the Act will not be available. Thus, the asset is owned by Deep David and Roshan David which was acquired by them, not through inheritance without incurring any cost to the asset. Hence, in this case, the transfer of property will not be covered by Sec.49(1) of the Act. Therefore, assessee will not be eligible to cost of asset to that of the prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.3 The Ld.CIT(A) arrived at a conclusion that as the period of holding is treated as short term period, the benefit of indexed cost and inflation cost to the asset to the previous owner is not applicable because the transfer of asset is not covered by sec. 49(1) r.w.s. 2(42A). The AO is accordingly, directed to withdraw the cost of indexation given in the assessment order. 3.4 As per sec.54, the benefit will be available only if the asset is happened to be a Long Term Capital Asset since in view of the above fact finding, the asset is treated as short term capital asset. Therefore, deduction u/s.54 of the Act will not be available to the assessee. Therefore, Ld.CIT(A) directed the AO to withdraw the deduction granted to the assessee u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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