9911796707
TMI Blog2009 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the circumstances of the case, the assessee was entitled to claim Rs.14,33,000/- as additional cost of acquisition of the interest in property for purposes of computation of capital gains?" 3. In Tax Appeal No. 158 of 1999 following two substantial questions of law have been formulated by the High Court while admitting the Appeal vide order dated 27.01.2000 : "1. Whether on the facts and in the circumstances of the case, the assessee was entitled to claim Rs.14,33,000/- as additional cost of acquisition of the interest in property for purposes of computation of capital gains ? 2. Whether on the facts and in the circumstances of the case, the assessee undertook obligation to pay Rs.14,33,000/- to his son in return for being allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shah had undertaken to pay a sum of Rs.14,33,000/- to her son Shri Udayan H. Shah for an acquisition of his one fourth share in the immovable property; and similarly Shri Hariprasad H. Shah had undertaken to pay a like amount to the other son Shri Deepak H. Shah. The claim made by both the assessees came to be disallowed by the Assessing Officer holding that the property being of HUF, the only cost of acquisition which could be allowed was under the provisions of section 49 of the Act, viz. the cost of acquisition in hands of the original owner from whom the property had been received on partition. Accordingly, deduction to the tune of the value of the property as on 1.4.1974 in hands of the HUF was granted to each of the assessees by takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing five decisions : (1) (1982) 138 ITR 711 (Guj.) CIT Vs. Govindlal Mathurbhai Oza. (2) (1983) 140 ITR 29 (Guj.) Vimalbhai N. Shah Vs. CIT. (3) (1992) 197 ITR 123 (Guj.) CIT Vs. Daksha Ramanlal (4) (1997) 227 ITR 222 (SC) Arunachalam Vs. CIT (5) (2003) 261 ITR 185 (Guj.) Narendra N. Chauhan Vs. CIT. 9. The learned Standing Counsel appearing for Revenue has supported the orders of the Tribunal by submitting that the findings recorded by the Tribunal in case of Smt. Lalitaben H. Shah were findings of fact which could not be gone into by this Court and this Court was bound to proceed on the footing that the said factual findings are correct. That in fact, the so called charge of Rs.14,33,000/- was a self created charge as held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in a case, where, at the time of making assessment under section 143 or section 144 of the Act, such a partition is claimed by any member of the HUF. The said section further provides that the Assessing Officer shall make such inquiry after giving notice of the inquiry to all the members of the family. Thereafter, on completion of the inquiry, the Assessing Officer is bound to record a finding as to whether there has been a partial or total partition of the joint family property, and if a partition has taken place, the date of such partition. This is provided categorically under sub-section (3) of Section 171 of the Act. For the present, it is not necessary to refer to other sub-sections of section 171 of the Act. Therefore, when Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le recording the finding in paragraph No. 8 of the impugned order dated 31.3.1997. 13. In the case of CIT Vs. Narendra N. Chauhan (Guj.) (supra) this Court has in almost similar fact situation, observed as under : "Having heard learned counsel for the parties, we are of the view that since at the time of partition the assessee was not entitled to get the entire property valued at Rs.67,000/- as the assessee's share in the property of the larger Hindu undivided family and since the entire amount of Rs.23,000 paid by the assessee to the larger Hindu undivided family pertained to the additional interest in the property,i.e., interest in addition to the interest allottable to the assessee at the time of partial partition quantified at Rs.44,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
