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Income Tax Appellate Tribunal, HYDERABAD ‘ B ‘ BENCH, HYDERABAD.
O R D E R Per Shri S.S. Godara, J.M. : This assessee’s appeal for Asst. Year 2009-10 arises from the Commissioner of Income Tax (Appeals)-3, Hyderabad’s order dt.10.11.2017 passed in case No.0362/ITO-7(2)/Hyd/CIT(A)-3/2016-17 in proceedings
Section 144 r.w.s. 147 of Income Tax Act, 1961 (‘the Act’).
Heard both the parties. Case file perused.
Learned counsel is fair enough in not pressing for the assessee's second substantive ground challenging the initiation of proceedings u/s.148/147 of the Income Tax Act (in short 'the Act'). Accordingly, this ground is rejected.
Next comes the main issue of correctness of both the lower authorities' action making Long Term Capital Gains (LTCG) addition after adopting full value of the construction for transfer of capital asset as Rs.2,45,25,000 u/s.50C of the Act. Learned counsel, inter alia, argued that the assessee / vendor had in fact transferred only his limited right(s) to his sister-in-law / vendee Smt. D. Vimala Bai by way of a family arrangement than a sale. And that both the learned lower authorities' have failed to consider the foregoing clinching fact before making the impugned LTCG addition. It is further contended that section 50C of the Act would not apply in case gift from brother-in-law to his
sister-in-law involving transfer of limited right in the capital asset.
Learned departmental representative has strongly supported the impugned addition made after invoking 50C of the Act.
5. We find no merit in assessee's foregoing arguments in paper book runs into 39 pages which includes the impugned sale agreement cum General Power of Attorney (GPA) dt. 12.02.2009. The assessee appears to have been the “absolute owner and possessor” of the land in question in the said transfer agreement. Coupled with this, his pattadar passbook issued by the revenue authorities no where contain any stipulation or encumbrance on this title over the capital asset in issue. All these facts sufficiently indicate that both the learned lower authorities' have rightly invoked section 50C capital gain going by stricter interpretation as per Commissioner of Customs Vs. Dilip Kumar & Co. (2018) 9 SCC 1 (SC) since the impugned statutory provision nowhere contains any mitigating
circumstances except those provided by the legislature itself.
Learned counsel further submitted that we are only dealing with sale agreement cum GPA who has not seen any transfer of the capital asset till date. This last argument also fails to evoke our concurrence since the assessee had transferred all his absolute rights and possession in favour of the vendee / sister-in-law without any stipulation to the contrary. He has also not placed the latest revenue record in support of this last argument. We thus affirm both the lower authorities' action making the impugned LTCG addition after invoking section 50C of the Act. The assessee's third to fifth substantive grounds to this effect are rejected therefore.
Lastly comes the issue of cost of acquisition u/s. 48(ii) Expln. (iii) r.w.s. 49(1) Explanation. Both the learned lower authorites' have adopted the cost of acquisition @ Rs.1 per square yard on estimation basis without even determining the previous owner’s cost of acquisition of the capital asset who had acquired it for a valuable consideration in light of the foregoing statutory provisions. We further see no justification in estimation of cost of acquisition being acquired per yard basis as on 1.4.1981 since deceased assessee herein had become its Pattadar on acreage / gunta basis only. We therefore direct the Assessing Officer to re-examine the issue of assessee's cost of acquisition on acreage basis only as per law within three effective opportunities of hearing.
No other arguments have been raised before us.
This assessee's appeal is partly allowed for statistical purposes in above terms.