TMI Blog2023 (7) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... asuring about 66.92 sq.mtr. and not the total area 302.86 sq.mtr Legally, the assessee has been conferred with the right of possession of the entire plot of land measuring about 302.86 sq.mtr. only by way of the deed of rectification dated 31.07.2015 but the same relates back to the original date of allotment dated 01.01.1976 when under the University Staff Housing Scheme the assessee was allotted with the same plot of land. Under these facts and circumstances, admittedly, the assessee is entitled to the claim of long term capital gain under Section 54 of the Act in respect of balance of land measuring 235.94 sq.mtr. which was never conveyed by way of deed of sale by the appellant to her daughter. We, therefore, accept the contention mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round as to whether deduction from capital gains has been claimed correctly or not. Statutory notices were duly served upon the assessee. The brief facts leading to this issue is this that the appellant was allotted a residential unit from Gujarat State Housing Board on 01.01.1979 upon making payment of Rs. 52,500/- in respect of the land and construction area measuring about 66.92 sq. mtr. The appellant also paid Rs. 11,286/- for the extra land measuring about 235.94 sq.mtr. On 05.08.1986, a deed of conveyance was executed by and between the appellant and the Gujarat State Housing Board, whereby and whereunder the right title interest of the land alongwith the superstructure measuring about 66.92 sq.mtr. were transferred in favour of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gujarat State Housing Board on 05.08.1986 neither conveyed to her. 5. On the other hand, the said Gujarat State Housing Board was neither agreed to enter into with the said Alteration agreement Sudhara no lekh with the daughter of the assessee but with the original allottee being the appellant before us and therefore having no other alternative the deed of conveyance registered by and between the appellant and her daughter dated 16.03.2006 conveying the right title interest of the property measuring about 66.96 sq.mtr. was decided to be cancelled and stood cancelled. Relevant to mention that the amount of consideration paid to the appellant by the daughter to the tune of Rs. 4,15,000/- was also returned to the appellant which was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sq.mtr. in respect of property of Tenement No.304 in Block No. M/41/304 in the Scheme namely Saraswatinagar Housing Society known as 120 M.I.G. Tenement E Type, Vastrapur under the University Staff Housing Scheme, Himatlal Park, Vastrapur, Ahmedabad having land with construction of 66.92 sq.mtr. and its open land admeasuring 235.94 sq.mtr. in the Schedule of property therein. Thereafter, the assessee deposited Rs. 2256900/- from the total consideration received in the capital gain account maintained with Bank of Baroda, S. G. Road, Ahmedabad and claimed long term capital gain arose from the sale of residential property while filing return of income for A.Y. 2016-17. 8. The assessee s case as also argued by the Ld. Senior Counsel Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Housing Board. Thus, the right, title and interest mentioned in the rectification deed dated 31.07.2015 relates back to the original deed of allotment dated 01.01.1979 in respect of the said plot of land in favour of the appellant. Admittedly, therefore, the appellant was holding the land more than 36 months and upon the deed of sale dated 09.10.2015 executed by and between the appellant as the vendor and Shri Rajubhai Merubhai Sohla for the total consideration of Rs. 2,31,00,000/-, the appellant rightly claimed long term capital gain out of such sale of the residential property. Alternatively, it was further argued by him that since the appellant conveyed the right, title and interest of property in respect of only 66.92 sq.mtr. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of the deed of rectification dated 31.07.2015 but the same relates back to the original date of allotment dated 01.01.1976 when under the University Staff Housing Scheme the assessee was allotted with the same plot of land. Under these facts and circumstances, admittedly, the assessee is entitled to the claim of long term capital gain under Section 54 of the Act in respect of balance of land measuring 235.94 sq.mtr. which was never conveyed by way of deed of sale by the appellant to her daughter. We, therefore, accept the contention made by the Ld. Senior Counsel appearing for the assessee and direct the Ld. AO to calculate the capital gain in respect of the area of land admeasuring to 235.94 sq.mtr. and grant relief to the assessee. Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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