SARWAR MOHD. KHAN,BHOPAL vs. ASSISTANT COMMISSIONER OF INCOME TAX 2 (1), BHOPAL

There is a delay of 30 days for filing the appeal before us. An application for condonation of such delay has been filed by the assessee alongwith the affidavit affirmed by the assessee. The reason for delay due to non-functioning of New Income Tax Portal and medical issues have been

None appeared on behalf of the assessee at the time of call no adjournment has been sought for. However, a short submission has been filed by the assessee in favour of the case made out. On the other hand, the Ld. D.R. on the other hand relied upon the order passed by the authorities below.

We have heard the Ld. DR and perused the relevant materials available on record.

The brief facts leading to the case is this that the assessee, an individual filed its return of income declaring total income at Rs. 23,80,135/- on 24.06.2009. Such income has been derived from Long Term Capital Gain and from other sources too. Under scrutiny a notice under Section 143(2) of the Act dated 21.08.2010 followed by a questionnaire under Section 142(1) of the Act dated 22.11.2010 was served upon the assessee. The issue arose out of the transaction of selling of land alongwith five other persons situated at Village Prempura, Tehsil Huzur, District Bhopal vide registered deed dated 09.08.2007 for a total consideration of Rs. 24,12,00,000/- out of which the assessee has received an amount of Rs. 4,38,40,000/-. The assessee before the Ld. AO has furnished the photo copy of MOD under capital gain deposit scheme amounting to Rs. 3,99,00,000/- with the State Bank of India, Sultania Road, Bhopal deposited on 31.07.2008. The assessee further submitted that the impugned property was an ancestral property which has been inherited after the demise of his father in the year 1994-95. However, in the absence of any documentary evidence in support of cost of acquisition, the Ld. AO treated the

In appeal the Ld. CIT(A) did not allow the expenses of Rs. 39,40,000/- being brokerage paid to M/s. DSP Fin Print Ltd. of Rs. 38,40,000/- for assisting in sale of land which has already been taxed in the hands of DSP Fin Print Ltd. Such amount was paid to the broker vide Cheque No. 917764 dated 14.08.2007 of ICICI Bank Ltd. and the balance amount of Rs. 1,00,000/- is the transfer expenses thereof.

The case of the assessee is this that this amount of brokerage was paid through cheque by the assessee and is allowable deduction under Section 48 of the Act and rules for the calculation of Long Term Capital Gain. Moreso, the said amount of Rs. 38,40,000/- has already being taxed in the hands of the broker namely DSP Fintprint Ltd., a copy of the appellate order of the said DSP Fin Print Ltd. dated 18.11.2011 annexed to the file before us from which the said fact has been verified to be true. It is also the case of the assessee that in the case of the co-owner of the property being one of the sisters of the assessee namely Smt. Aisha Parveen Khan, the cost of acquisition has been taken as on 01.04.1981 and not 01.04.1994. The same is also applicable to the case of the assessee has already submitted by the assessee before the First Appellate Authority. Considering this aspect of the matter the value of the property as on 01.04.1981 should have been calculated at Rs. 59,000/- per acre as of the ultimate submission of the assessee. In support of this submission the assessee duly submitted the copy of the order passed by the Ld. ACIT-1(1), Bhopal dated 31.01.2010 passed in the matter of Smt. Aisha Parveen which is reflecting from the order passed by the Ld. CIT(A). However, even the entire set of documents being furnished before the Ld. CIT(A), the Ld. CIT(A) has

In the result, the appeal filed by the assessee is allowed.