Smt. Rakhi Kohli, Chandigarh V. ACIT, Chandigarh

ITA 542/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81106 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Sale consideration of property below Jantri Value; Deemed Gift on Purchase of immovable Property below Jantri value; Capital asset; Gift; Cost of acquisition
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 542/CHD/2013 ASSESSMENT YEAR: 2009-10 SMT. RAKHI KOHLI, VS THE ACIT, HOUSE NO. 243, CIRCLE 4(1), SECTOR 35-A, CHANDIGARH. CHANDIGARH PAN: ACSPK3865H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINEET KRISHA N RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 11.12.2014 DATE OF PRONOUNCEMENT : 23.12.2014 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) CHANDIGARH DATED 19.02.2013 FOR ASSESS MENT YEAR 2009-10. 2. IN THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NO. 3, THEREFORE SAME IS DISMISSED AS NOT PRESSED. 3. IN THE REMAINING GROUNDS OF APPEAL, THE ASSESSEE CHALLENGED THE ORDERS OF AUTHORITIES BELOW IN TREAT ING THE GAINS FROM THE SALE OF PROPERTY AS SHORT TERM CAPITAL GAI N INSTEAD OF LONG TERM CAPITAL GAIN CLAIMED BY ASSESSEE, THE ADD ITION OF RS. 1 LAC ON ACCOUNT OF DISALLOWANCE OF TRANSFER/COMMIS SION EXPENSES AND FURTHER DISALLOWING THE COST OF IMPROV EMENT 2 INCURRED IN A SUM OF TOTALING TO RS. 4,68,536/- IN DIFFERENT FINANCIAL YEARS. 4. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE CHALL ENGED ADDITION OF RS. 40,67,962/- ON ACCOUNT OF CAPITAL G AINS BY INVOKING THE PROVISIONS OF SECTION 50C OF THE INCOM E TAX ACT BEFORE LD. CIT(APPEALS). 5. THE BRIEF FACTS OF THE ISSUE ARE THAT THE ASSESS EE HAD CERTAIN DEPOSITS IN HER BANK ACCOUNTS AND WHEN SHE WAS ASKED TO EXPLAIN ABOUT THE SAME, SHE SUBMITTED THAT SHE H AD SOLD A PROPERTY WHICH WAS GIFTED TO HER BY HER MOTHER. IT WAS CONVEYED BY THE ASSESSEE THAT HER MOTHER WAS ALLOTT ED A PLOT IN GOMTI NAGAR, LUCKNOW BY LUCKNOW DEVELOPMENT AUTHORI TY (HEREAFTER REFERRED TO AS LDA) FOR SUM OF RS. 1,7 2,800/- IN FINANCIAL YEAR 1988-89. SUBSEQUENTLY, THIS PLOT WA S ACQUIRED AND LDA ALLOTTED ANOTHER COMMERCIAL PLOT IN GOMTI N AGAR ITSELF ON 06.05.2008 IN LIEU OF THE EARLIER PLOT AND THE A SSESSEE WAS REQUIRED TO DEPOSIT ADDITIONAL AMOUNT OF RS. 51,16, 708/- VIDE LETTER DATED 17.06.2008 OF LDA. AS THE ASSESSEE DI D NOT HAVE RESOURCES TO DEPOSIT THIS AMOUNT, SHE AGREED TO SEL L THE PLOT ALONG WITH THE LIABILITY OF RS. 51,16,708/- TOWARDS LDA FOR RS. 40,00,000/-. 6. THE ASSESSEE HAD DECLARED LONG TERM CAPITAL GAIN ON THIS SALE AS UNDER : SALE CONSIDERATION RS. 91,17,208/- LESS : TRANSFER EXPENSES RS. 2,00,000/- RS. 89,17,208/- 3 LESS : INDEXED COST COMMERCIAL PROPERTY RS. 6,11,642/- F.Y. 1988-89 169200/161*582 IMPROVEMENT COST RS. 2,48,066/- F.Y. 1993-94 104000/244*582 IMPROVEMENT COST RS. 4,56,059/- F.Y. 1996-97 239000/305*582 IMPROVEMENT COST RS. 1,79,956/- F.Y. 2000-01 125536/406*582 COMMERCIAL PROPERTY RS. 51,17,208/- F.Y. 2008-09 5117208/582*582 RS. 66,12,931/- LONG TERM CAPITAL GAIN RS. 23,04,277/- 7. THE ASSESSING OFFICER NOTICED THAT ON THE SALE D EED, THE MARKET VALUE OF THE PROPERTY HAD BEEN SHOWN AT RS. 93,90,325/- AND SO HE APPLIED THE PROVISIONS OF SEC TION 50C OF THE ACT AND COMPUTED SHORT TERM CAPITAL GAIN AS UND ER : SALE CONSIDERATION OF THE PROPERTY RS. 93,90,325/ - LESS : INDEXED COST OF PLOT FROM 2004 TO 2008 169200/480X582 RS. 2,05,155/- PAYMENT MADE FOR NEW PLOT IN LIEU OF RS. 51,17,20 8/- OLD ONE RS. 53,22,363/- S.T.C.G. RS. 40,67,962/- 8. THE ASSESSEE CHALLENGED THE ORDER OF ASSESSING O FFICER BEFORE LD. CIT(APPEALS) AND WRITTEN SUBMISSION OF T HE ASSESSEE IS REPRODUCED IN THE APPELLATE ORDER WHICH READS AS UNDER : 'THE FACTS OF THE CASE ARE THAT THE APPELLANT'S MOT HER SMT. RINA R. BHATIA WAS ALLOTTED A COMMERCIAL PLOT NO. A-2/147 IN VIBHUTI KHAND GOMTI NAGAR LUCKNOW BY LUCKNOW DEVELOPMENT AUTHORITY (HEREINAFTER CALLED AS 'LDA') FOR A SUM OF RS. 1,72,800/- ON 12.07.1988. THIS COMMERCIAL PROPERTY W AS 4 SITUATED IN TOTALLY UNDEVELOPED AREA. THE PAYMENT O F THE SAID PLOT WAS MADE AS UNDER : I) RS. 4, OOO/- ON 28.03.1988 AS APPLICATION MONEY. II) PAYMENT DEPOSITED AFTER THE ALLOTMENT ON 12.07.1988 OF RS.1,69,000/-. III) RS. 20,980/- ON 0.11.1988 AS STATED SUPRA, THE PLOTS WERE ALLOTTED IN A REMOT E AND UN- DEVELOPED AREA. THERE WAS NO APPROACH ROAD. IN THE Y EAR 1994, LDA THREATENED TO RESUME THE PLOTS FOR NON-CONSTRUCT ION AND DESPITE THE FRANTIC EFFORTS MADE BY THE APPELLANT AN D OTHER ALLOTTEES THE AREA WAS NOT DEVELOPED BY THE LDA. IN THE YEAR 1994 A TEMPORARY APPROACH ROAD WAS MADE AT OUR OWN COST. SINCE, THE THREAT OF RESUMPTION WAS LOOMING LARGE, THE BOUNDARY WALLS AND ALSO THE MINIMUM AREA REQUIRED TO BE COVE RED WAS CONSTRUCTED. THUS IN THE YEAR 2000 THE COST WORKED O UT AROUND RS. 1,25,000/-. THESE BILLS WERE NOT SUBMITTED BEFO RE THE ID. ASSESSING OFFICER AS THESE WERE VERY OLD AND TOOK A LOT OF TIME TO TRACE THESE BILLS AS THERE WAS A TIME GAP OF ABOUT 14 YEARS. IT MAY BE MENTIONED HERE THAT EARLIER THE APPELLANT'S A ND HER PARENTS WERE LIVING AT INDORE AND SHIFTED TO CHANDIG ARH MUCH LATER AND SINCE THE PROPERTY WAS SOLD NO CARE WAS TA KEN TO KEEP THE DOCUMENTS PROPERLY. THE ASSESSEE MAY KINDLY BE PERMITTED TO PRODUCE THIS DOCUMENTS FOR WHICH AN APPLICATION U/S 46A HAS SEPARATELY BEEN MADE. AS MENTIONED AT PAGE NO. 9 OF THE AGREEMENT TO SELL DATED 10.07.2008 THAT THE COMMERCIAL PLOT NO. 2/147, VIBHUTI KHAND GOMTI NAGAR LUCKNOW WAS ALLOTTED BY LUCKNOW DEVELOP MENT AUTHORITY, LUCKNOW TO MOTHER OF THE APPELLANT VIDE A LLOTMENT LETTER DATED 21.5.1988 AND THE DEPOSITED THE FULL A ND FINAL PAYMENT. SINCE THIS PLOT WAS ON THE RAILWAY SIDING AC CORDINGLY RAILWAY AUTHORITIES ACQUIRED THAT PLOT AND AT THE R EQUEST, LUCKNOW DEVELOPMENT AUTHORITY ALLOTTED ANOTHER COMMERCIA L PLOT NO. TC/58-V/E/A T VIBHUTI KHAND, GOMTI NAGAR, LUCKNOW MEASURING ABOUT 583.25 SQ. METER AS PER ALLOTMENT LETT ER NO. 1671/PO DATED 06.05.2008 IN LIEU OF PLOT EARLIER ALL OTTED, THE APPELLANT WAS REQUIRED TO DEPOSIT ADDITIONAL AMOUNT OF RS. 5116708/- AS PER LETTER NO. 1792/P/ DATED 17.06.200 7 ISSUED BY LUCKNOW DEVELOPMENT AUTHORITY. IN THE MEANTIME, SI NCE THE APPELLANT HAD NOT THE RESOURCES TO DEPOSIT THIS AMOU NT, SHE AGREED TO SELL THE SAID PLOT FOR A SUM OF RS. 40 LACS AS PER REGISTERED AGREEMENT TO SELL DATED 17.06.2008. BUT BE FORE THIS PLOT COULD BE ALLOTTED, SHE HAD AGREED TO SELL THE SAID P ROPERTY TO M/S NANAK RAJ REAL ESTATE PVT. LTD. FOR A SUM OF RS . 40 LACS AND GOT THE AGREEMENT REGISTERED WITH SUB REGISTRAR, LUCKNOW. IN PARA NO. 3 IT WAS AGREED BETWEEN THE PA RTIES THAT 'THE SELLER IS HEREBY AGREES THAT THEY SHOULD NOT T AKE ANY LOAN FROM ANY FINANCIAL INSTITUTION AGAINST THE SAID PLOT OF LAND OR TAKE THE AMOUNT REFUNDED FROM LUCKNOW DEVELOPMENT AUTHORITY, LUCKNOW DEPOSITED BY HER IN RESPECT OF THE SAID PLOT AGREED TO BE TRANSFERRED UNDER THIS AGREEMENT' 5 ACCORDINGLY, SELLER PAID THE AMOUNT OF RS. 51,16,70 8/- AS PER LETTER DATED 1 7.06.2008 TO THE LUCKNOW DEVE LOPMENT AUTHORITY. BOTH THESE AMOUNTS ADDED IT WILL COME TO RS. 91,16,708/- WHILE IT WAS REGISTERED AT RS. 93,9O,32 5/-FOR THE PURPOSE OF STAMP DUTY. NOW THERE ARE TWO GRIEVANCES OF THE ASSESSES. FIRST IS THAT DESPITE OUR REQUEST LETTER DATED 24.10.2011 TH E MATTER WAS NOT REFERRED TO THE VALUATION OFFICER OF THE DEP ARTMENT FOR DETERMINING THE MARKET VALUE WHICH IS MANDATORY, THO UGH THE DIFFERENCE IS VERY SMALL. AS PER THE ASSESSMENT ORDER, THE ID. ASSESSING OFFI CER HAS NOT ALLOWED THE DEDUCTION OF RS. 2 LACS ON ACCOUNT OF T RANSFER EXPENSES BESIDES HE HAS INDEXED THE PAYMENT OF RS. 169200/- ONLY IN RESPECT OF PAYMENT MADE IN FY. 198 8-89 AND INDEXATION HAS BEEN DONE FROM THE YEAR I.E. FRO M THE YEAR FGIFT. AS A MATTER OF FACT, THE APPELLANT HAD RECEIV ED THIS PROPERTY AS A GIFT FROM HER MOTHER SMT. RINA BHATIA AS SUCH THE INDEXATIONS SHOULD BE DONE FROM THE DATE OF ACQ UISITION OF THE PREVIOUS OWNER LE. RINA BHATIA. IN THIS CONNECTION YOUR KIND ATTENTION IS INVITED TO THE EXPLANATION TO SECTION 2(42A) WHICH PROVIDES THAT I N CASE OF CAPITAL ASSET WHICH BECOMES THE PROPERTY OF THE ASS ESSEE IN THE CIRCUMSTANCES MENTIONED IN SUB SECTION 1 OF SEC TION 49, THERE SHALL BE INCLUDED THE PERIOD FOR WHICH THE AS SET WAS HELD BY THE PREVIOUS OWNER REFERRED TO IN SUCH SITUAT ION. SINCE THE APPELLANT HAD ACQUIRED THE PROPERTY BY WAY OF GI FT, WHICH IS ONE OF THE CIRCUMSTANCES MENTIONED IN SECTION 49(1 ), THE APPELLANT SHALL BE DEEMED TO HAVE HELD THE PROPERTY SIN CE 1988 AND AS SUCH THE INDEXED OF ACQUISITION SHALL B E IN THE YEAR 1988, THE YEAR IN WHICH THE SAME WAS ACQUIRED BY THE MOTHER OF THE APPELLANT. SO, INDEXED COST WILL BEJF E. 169200/161 X 582 AT RS. 6,11,642/-AND NOT RS. 169200/480 X 582 AT RS.2,05,155/- TAKEN BY THE ID. ASSESSING OFFICER. WHERE THE CAPITAL ASSET BECOMING THE PROPERTY OF TH E ASSESSEE UNDER A GIFT IS SUBSEQUENTLY TRANSFERRED A S ENVISAGED IN SECTION 45, THE CAPITAL GAINS ARISING FROM SUCH TRANSFER ARE CHARGEABLE TO TAX AND THE DATE AND COS T OF ACQUISITION OF THE PREVIOUS OWNER ARE ADOPTED AS TH E COST AND DATE OF ACQUISITION OF THE ASSESSEE FOR THE PUR POSE OF COMPUTATION OF SUCH CAPITAL GAINS. THE CAPITAL GAIN S WOULD HAVE BEEN CHARGEABLE AS A RESULT OF TRANSFER OF THE CAPITAL ASSET BY THE PREVIOUS OWNER TO THE ASSESSEE AS A RESULT OF GIFT. IN THIS CONNECTION YOUR KIND ATTENTIO N IS INVITED TO THE DECISION OF HON'BLE ITAT MUMBAI BENCH IN THE CAS E OF DCIT VS. MANJULA J. SHAH [2009] 318ITR (AT) 417(MUMB AI) (SPECIAL BENCH). SO THE INDEXED COST HAS TO BE DERIVED BY DIVIDING THE COST INFLATION INDEX OF THE YEAR IN WHICH THE MOTHER OF THE APPELLANT SMT. RINA BHATIA (LAST PREVIOUS OWNER) WHO HAD ACQUIR ED THE PROPERTY IN THE YEAR 1988, SO THE PERIOD IS TO BE DE TERMINED AS PER SECTION 49 READ WITH SECTION 2 (42A).... 6 THE OTHER AMOUNTS WERE SPENT IN THE YEAR 1993-94, 19 96-97 AND 2000-01. THE CAPITAL GAIN IS COMES TO RS. 2304277 /- AND NOT RS. 4067962/- ADOPTED BY THE ID. ASSESSING OFFIC ER. AGAIN THE ID. ASSESSING OFFICER HAS CHARGED THE SHORT TERM CAPITAL GAIN WHILE HE HIMSELF HAD ALLOWED THE COST OF INDEX ATION FROM 2004 SO, BOTH THE AMOUNTS ARE WRONG OF COURSE NO INDEXATION IS REQUIRED TO BE MADE IN RESPECT OF THE PAYMENT MADE AT RS. 5117208/- AS THE SAME WA PAID DURING THE YEAR ITSELF. THE FACT THAT THE APPELLANT HAD MADE INVESTMENT IN SU BSEQUENT YEAR ON THE SAID PROPERTY. THE FACT THAT THE INDEXA TION ON ACCOUNT OF INFLATION HAS TO BE DONE FROM 1988 WHEN IT WAS ACQUIRED BY THE PREVIOUS OWNER. THE FACT THAT SINCE THE DATE WHEN THE PROPERTY WAS HELD IN EXCESS OF 3 YEARS LON G TERM CAPITAL GAIN IS TO BE CHARGED' 9. THE LD. CIT(APPEALS), CONSIDERING THE EXPLANATIO N OF THE ASSESSEE IN THE LIGHT OF THE MATERIAL ON RECORD, AL LOWED THE APPEAL OF THE ASSESSEE PARTLY. HIS FINDINGS IN PAR A 3.3 TO 4 ARE REPRODUCED AS UNDER : 3.3 I HAVE CONSIDERED THE SUBMISSION OF THE LD. COUNSEL. AS THE PROPERTY HAD DEVOLVED ON THE APPELLA NT BY WAY OF GIFT BY HER MOTHER, THE COST OF ACQUISITION W ILL BE THE COST FOR WHICH APPELLANT'S MOTHER HAD ACQUIRED PROP ERTY AS INCREASED BY THE COST OF ANY IMPROVEMENTS. HERE WE A RE CONCERNED ONLY WITH THE PROPERTY, WHICH WAS SOLD DURI NG THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. THE CIRCUMSTANCES UNDER WHICH THE MOTHER OF THE APP ELLANT WAS ALLOTTED THE PROPERTY IS OF NO RELEVANCE. THE NEW PLOT, WHICH IS SUBJECT MATTER OF SALE WAS ALLOTTED TO THE MOTHER O F THE APPELLANT IN THE YEAR 2008. IN WHAT MANNER AND TIME , THE PAYMENTS FOR THE ACQUISITION OF THE PLOT WERE MADE IS OF NO CONSEQUENCE. WHAT IS RELEVANT IS THE YEAR OF ACQUISI TION OF PLOT AND THE YEAR OF ACQUISITION. THERE IS NO DISPUTE THAT THE PLOT WAS ACQUIRED ONLY IN 2008. THOUGH SHE HERSELF PAID O NLY RS. 1,72,800/-, THE AMOUNT OF LIABILITY TRANSFERRED IS A LSO TO BE TAKEN AS PART OF COST OF ACQUISITION. THUS, SHE PAID TOTAL CONSIDERATION OF RS.52,89,508/- (51,16,708+1,72,800). TH E PROPERTY IN QUESTION WAS SOLD IN THE YEAR IN WHICH IT WAS ACQUIRED. THEREFORE, THE CAPITAL GAIN WHICH AROSE IN THIS TRANSACTION WOULD BE TAXED AS SHORT TERM CAPITAL GA IN. THE SALE PRICE HAS TO BE TAKEN AT RS. 93,90,325/- AS PE R THE PROVISIONS OF SECTION 50C OF THE ACT. THE APPELLANT HAS ALSO CONTENDED THAT DESPITE A SPECIFIC REQUEST, THE MATT ER WAS NOT REFERRED TO THE VALUATION OFFICER FOR DETERMINI NG THE MARKET PRICE. SINCE THE APPELLANT HAD MADE A SPECIF IC REQUEST TO THE ASSESSING OFFICER TO REFER THE MATTER TO VAL UATION OFFICER, THE ASSESSING OFFICER WAS DUTY BOUND TO CONSIDER THI S REQUEST. I DO NOT FIND ANY DISCUSSION IN THIS REGAR D IN THE 7 ASSESSMENT ORDER. THE ASSESSING OFFICER SHOULD NOW CONSIDER THIS REQUEST AND DETERMINE THE SALE PRICE ACCORDING LY. WHILE IT IS TRUE THAT NO EVIDENCE WAS PRODUCED BEFORE THE AS SESSING OFFICER TO SUPPORT THE CLAIM OF PAYMENT TO THE BROK ER AND THE EVIDENCE WHICH IS PRODUCED BEFORE ME ALSO DOES NOT INSPIRE ANY CONFIDENCE, ONE CANNOT IGNORE THE FACT THAT IN SUCH TRANSACTIONS OF SALE, SOME EXPENDITURE HAS NECESSAR ILY TO BE INCURRED BY THE SELLER AND I THINK IT WILL MEET THE ENDS OF JUSTICE, IF A DEDUCTION OF RS 1,00,000/- IS ALLOWED AS TRANSFER EXPENSES. AS IT IS A CASE OF SHORT TERM CAPITAL GAI NS, THE QUESTION OF INDEXING THE COST OF ACQUISITION DOES N OT ARISE. TO SUM UP, THE SHORT TERM CAPITAL GAIN IS TO BE COMPUT ED BY THE ASSESSING OFFICER IN THE FOLLOWING MANNER :- SALE PRICE RS 93,90,325/- (OR AS DETERMINED BY VALUATION OFFICER, WHICHEVER IS LE SS) LESS: (I) COST OF ACQUISITION RS. 52,89,508/- (II) TRANSFER EXPENSES RS. 1,00,000/- 4. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE CAPITAL GAIN ON SALE OF IMPUGNED PROP ERTY. GROUNDS OF APPEAL NOS. 2 AND 3 ARE PARTLY ALLOWED. 10. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMI TTED THAT THE MOTHER OF THE ASSESSEE GIFTED THE PROPERTY IN Q UESTION TO HER. THEREFORE, THE ASSESSEE BECAME OWNER OF THE P ROPERTY AND SINCE THE ASSESSEE HAD ACQUIRED THE PROPERTY BY WAY OF GIFT, THEREFORE, ASSESSEE SHALL BE DEEMED TO HAVE HELD TH E PROPERTY SINCE 1988. THEREFORE, THE CAPITAL GAIN IN THE CAS E OF THE ASSESSEE IS IN THE NATURE OF LONG TERM CAPITAL GAIN AND THAT WHATEVER COST OF IMPROVEMENT WAS MADE IN THE PROPER TY IN QUESTION, SHOULD HAVE BEEN ALLOWED BENEFIT BY THE A UTHORITIES BELOW AND TRANSFER EXPENSES/COMMISSION SHOULD ALSO BE ALLOWED ACCORDINGLY. HE HAS REFERRED TO VARIOUS DO CUMENTS FROM THE PAPER BOOK IN SUPPORT OF HIS CONTENTION AN D ALSO EXPLAINED THE SEQUENCE OF EVENTS AND RELIED UPON OR DER OF ITAT 8 BANGALORE BENCH IN THE CASE OF A.SURESH RAO VS ITO 144 ITD 677. 11. ON THE OTHER HAND, LD. DR THOUGH RELIED UPON OR DERS OF THE AUTHORITIES BELOW, SUBMITTED THAT THERE WERE NO VALID GIFT DEEDS EXECUTED IN FAVOUR OF THE ASSESSEE BY HER MOT HER AND THAT NO GIFT DEED WAS EXECUTED IN RESPECT OF ALTERN ATE PLOT WHICH IS SUBJECT MATTER OF THE CAPITAL GAIN. THERE FORE, NO INDEXATION IS ALLOWABLE IN CASE OF THE ASSESSEE AND RATHER, WHOLE AMOUNT SHOULD HAVE BEEN TAXED AGAINST THE ASS ESSEE. HE HAS SUBMITTED THAT WHEN ORIGINAL PLOT WAS ACQUIRED BY THE RAILWAY AS PER SUBMISSION OF THE ASSESSEE, NO PLOT WAS SOLD ORIGINALLY, THEREFORE, NO COMMISSION OR COST OF IMP ROVEMENT COULD BE ALLOWED. SINCE NO POSSESSION IS GIVEN TO THE ASSESSEE OF THE ORIGINAL PLOT, THEREFORE, NO COST OF CONSTRU CTION CAN BE ALLOWED WHICH MAY BE ILLEGAL CONSTRUCTION AND MIGHT NOT BE RAISED BY THE MOTHER OF THE ASSESSEE. THE LD. DR FU RTHER SUBMITTED THAT THE CONSIDERATION OF THE SALE OF THE PLOT IN QUESTION WAS RECEIVED BY MOTHER OF THE ASSESSEE AS PER SALE DEED THEREFORE, IT IS NOT A CASE OF CAPITAL GAIN AN D APPEAL OF THE ASSESSEE MAY BE DISMISSED. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MA TERIAL AVAILABLE ON RECORD. SECTION 122 OF THE TRANSFER O F PROPERTY ACT PROVIDES THE DEFINITION OF GIFT. GIFT IS A TRANSFER OF CERTAIN EXISTING MOVABLE OR IMMOVABLE PROPERTY MADE VOLUNTA RILY AND WITHOUT CONSIDERATION, BY ONE PERSON, CALLED THE DO NOR, TO ANOTHER, CALLED THE DONEE AND ACCEPTED BY OR ON BEH ALF OF THE DONEE SECTION 123 OF THE TRANSFER OF PROPERTY ACT PROVI DES HOW THE TRANSFER IS TO BE EFFECTED AND PROVIDES FOR THE PURPOSE 9 OF MAKING A GIFT OF IMMOVABLE PROPERTY, THE TRANSFE R MUST BE EFFECTED BY A REGISTERED INSTRUMENT SIGNED BY OR ON BEHALF OF THE DONOR AND ATTESTED BY ATLEAST TWO WITNESSES. SECTION 124 OF THE TRANSFER OF PROPERTY ACT PROVIDES GIFT OF EXIS TING AND FUTURE PROPERTY AND PROVIDES, A GIFT COMPRISING BOTH EXISTING AND FUTURE PROPERTY IS VOID AS TO THE LATTER. CONSIDERING THESE PROVISIONS, IT IS CLEAR THAT FOR THE PURPOSE OF MAK ING A GIFT OF IMMOVABLE PROPERTY, THE TRANSFER MUST BE EFFECTED B Y REGISTERED DOCUMENT SIGNED BY OR ON BEHALF OF THE DONOR AND AT TESTED BY ATLEAST TWO WITNESSES. THE GIFT OF FUTURE PROPERTY WOULD BE VOID. IN THE CASE OF THE PRESENT ASSESSEE, IT IS C LAIMED THAT SMT. RINA R. BHATIA, MOTHER OF THE ASSESSEE HAS EXE CUTED A DECLARATION OF GIFT DATED 30.12.2004 (PB-3) GIFTING THE COMMERCIAL PLOT NO.A2/147 VIBHUTI KHAND, GOMTI NAGA R, LUCKNOW (HEREINAFTER REFERRED TO AS ORIGINAL PLOT). THIS DECLARATION OF GIFT IS IN THE FORM OF AFFIDAVIT HAV ING VERIFICATION BY THE EXECUTANT SMT. RINA R. BHATIA AS A DEPONENT. ON THE SECOND PAGE OF THIS DECLARATION, IT IS ATTESTED BY ONE WITNESS RAMESH G. BHATIA. THIS DECLARATION IS ATTESTED BY ONE NOTARY PUBLIC OF CHANDIGARH LATER ON 02.01.2005. IT IS, T HEREFORE, ADMITTED FACT THAT THE GIFT DEED IN QUESTION DATED 30.12.2004 IS NOT A REGISTERED DOCUMENT AND THE PROPERTY IN QU ESTION I.E. ORIGINAL PLOT WAS NOT TRANSFERRED THROUGH ANY REGIS TERED DOCUMENT. IT IS ALSO ADMITTED FACT THAT THE SAID D ECLARATION OF THE GIFT WAS NOT ATTESTED BY TWO WITNESSES. 13. IT IS ALSO ADMITTED BY LD. COUNSEL FOR THE ASSE SSEE DURING THE COURSE OF ARGUMENTS THAT POSSESSION OF THIS ORI GINAL PLOT WAS NEVER HANDED OVER TO THE MOTHER OF THE ASSESSEE BY THE 10 LUCKNOW DEVELOPMENT AUTHORITY AND ULTIMATELY IT WAS ACQUIRED BY THE RAILWAYS FOR PUBLIC CAUSE. THEREFORE, THERE WAS NO EXISTING PLOT TO BE GIFTED BY MOTHER OF THE ASSESSE E IN FAVOUR OF THE ASSESSEE. THE MOTHER OF THE ASSESSEE MIGHT HAV E SOME RIGHT IN THE ALLOTMENT OF THE ORIGINAL PLOT BUT ULT IMATELY SUCH RIGHT IN THE ORIGINAL PLOT WAS ALSO TAKEN AWAY BY T HE RAILWAYS THROUGH LUCKNOW DEVELOPMENT AUTHORITY ON BEING ACQU IRED FOR PUBLIC CAUSE, THEREFORE NO PROPERTY EXISTED TO BE G IFTED IN FAVOUR OF THE ASSESSEE. WHERE IS TRANSFER OF EXIST ING IMMOVABLE PROPERTY IN FAVOUR ASSESSEE ? 14. CONSIDERING THIS MATERIAL ON RECORD AND DETAILS NOTED IN THE DECLARATION OF THE GIFT DATED 30.12.2004, WE AR E OF THE VIEW THAT THERE IS NO VALID GIFT DEED EXECUTED BY MOTHER OF THE ASSESSEE IN FAVOUR OF THE ASSESSEE BECAUSE THE INGR EDIENTS OF SECTION 122, 123 AND 124 OF THE TRANSFER OF PROPERT Y ACT HAVE NOT BEEN COMPLIED WITH AND RATHER SUCH DECLARATION OF GIFT WAS EXECUTED IN VIOLATION OF THE PROVISIONS OF LAW. TH EREFORE, DECLARATION OF THE GIFT IN QUESTION IS VOID AND IS NOT VALID IN THE EYES OF LAW. IT IS ALSO ADMITTED FACT THAT WHEN PL OT NO. TC-58- V/EA VIBHUTI KHAND, GOMTI NAGAR, LUCKNOW (HEREINAFT ER REFERRED TO AS ALTERNATE PLOT ) WAS ALLOTTED TO THE MOTHER OF THE ASSESSEE BY LUCKNOW DEVELOPMENT AUTHORITY ON 17.06. 2008, NO GIFT DEED WAS EXECUTED BY MOTHER OF THE ASSESSEE IN FAVOUR OF THE ASSESSEE IN RESPECT OF ALTERNATE PLOT. THEREFO RE, IT STANDS ESTABLISHED ON RECORD THAT WHATEVER DECLARATION OF GIFT DEED WAS EXECUTED ON 30.12.2004 WAS VOID AND ILLEGAL AND WAS IN RESPECT OF ONLY ORIGINAL PLOT WHICH WAS LATER ON AC QUIRED BY THE RAILWAYS AND IN THE SAID DECLARATION OF GIFT THERE WAS NO 11 QUESTION OF GIFTING ANY OTHER PROPERTY IN FAVOUR OF THE ASSESSEE OR OF THE ALTERNATE PLOT IN QUESTION. IT IS, THERE FORE, CLEAR THAT NO GIFT DEED WAS EXECUTED IN FAVOUR OF THE ASSESSEE IN RESPECT OF THE ALTERNATE PLOT AT ANY POINT OF TIME WHICH IS SUBJECT MATTER OF THE CAPITAL GAINS UNDER THIS APPEAL. THE ASSESSEE, THEREFORE, DID NOT DERIVE ANY TITLE OR POSSESSION O F ORIGINAL PLOT AT ANY POINT OF TIME AS WELL AS DID NOT GET ANY RIG HT TITLE OR INTEREST IN RESPECT OF THE ALTERNATE PLOT. THE ASS ESSEE NEVER BECOME FINANCIAL OWNER OF THE ALTERNATE PLOT IN QUE STION OR OF ANY CAPITAL ASSET WHICH IS SUBJECT MATTER OF THE CA PITAL GAIN IN THIS APPEAL. IT MAY ALSO BE NOTED HERE THAT THE AS SESSEE HAS FILED COPY OF THE SALE DEED DATED 07.07.2008 IN THE PAPER BOOK AT PAGE 87. THIS SALE DEED WAS EXECUTED BY LUCKNOW DEVELOPMENT AUTHORITY THROUGH SHRI K.K.SINGH AS THE SELLER IN FAVOUR OF SMT. RINA R. BHATIA THROUGH HER ATTORNEY SHRI NITIN KOHLI AS A PURCHASER IN RESPECT OF PROPERTY NO. TC/ 58-V/EA (ALTERNATE PLOT) VIBHUTI KHAND, LUCKNOW. THEREFORE , THE LUCKNOW DEVELOPMENT AUTHORITY EXECUTED A SALE DEED IN FAVOUR OF THE MOTHER OF THE ASSESSEE IN RESPECT OF THE ALT ERNATE PLOT WHICH IS SUBJECT MATTER OF THE CAPITAL GAIN. IF AT ALL ANY VALID GIFT DEED WAS EXECUTED BY MOTHER OF THE ASSESSEE IN HER FAVOUR, THE SALE DEED WOULD NOT HAVE BEEN EXECUTED BY THE L UCKNOW DEVELOPMENT AUTHORITY IN FAVOUR OF SMT. RINA R. BHA TIA MOTHER OF THE ASSESSEE. THUS, THE ASSESSEE NEVER C LAIMED BEFORE THE LUCKNOW DEVELOPMENT AUTHORITY THAT ASSES SEE WAS OWNER OF THE ALTERNATE PLOT IN QUESTION. IT MAY AL SO BE NOTED HERE THAT SINCE NO GIFT DEED WAS EXECUTED BY MOTHER OF THE ASSESSEE IN HER FAVOUR IN RESPECT OF ALTERNATE PLOT , THEREFORE, 12 THERE WAS NO QUESTION OF ASSESSEE CLAIMING ANY OWNE RSHIP RIGHT IN THE ALTERNATE PLOT. THE ASSESSEE ALSO FILED COP Y OF THE SALE DEED DATED 10.07.2008 IN THE PAPER BOOK (PB-52) SHO WING MARKET VALUE AT RS. 93,90,325/-. THIS SALE DEED IS EXECUTED BY SMT. RINA R. BHATIA, MOTHER OF THE ASSESSEE AS A SE LLER THROUGH ATTORNEY SHRI NITIN KOHLI IN FAVOUR OF THE PURCHASE R M/S NANAK RAJ REAL ESTATE P. LTD. IN RESPECT OF ALTERNATE PLO T NO. TC/58- V/EA VIBHUTI KHAND, GOMTI NAGAR, LUCKNOW FOR A TOTA L CONSIDERATION OF RS. 40 LACS. IT IS MENTIONED IN T HE SALE DEED THAT THE CONSIDERATION OF RS. 40 LACS WAS PAID BY T HE PURCHASER TO THE SELLER AND THE SELLER ACKNOWLEDGED THE SAME AND TRANSFERRED THE RIGHTS IN THIS PLOT IN FAVOUR OF TH E PURCHASER. 15. THE LD. COUNSEL FOR THE ASSESSEE, DURING THE CO URSE OF ARGUMENTS ADMITTED BEFORE US THAT TOTAL SALE CONSID ERATION OF RS. 40 LACS HAVE BEEN RECEIVED BY MOTHER OF THE ASS ESSEE SMT. RINA R. BHATIA. WE FAIL TO UNDERSTAND AS TO HOW TH E ASSESSEE HAS RECEIVED RS. 40 LACS FOR CLAIMING IT TO BE A LO NG TERM CAPITAL GAIN IN RESPECT OF ALTERNATE PLOT. THE ASSESSEE NE VER SOLD THE ALTERNATE PLOT TO THIS COMPANY FOR ANY CONSIDERATIO N, THEREFORE, SUBMISSIONS OF THE ASSESSEE WERE TOTALLY WRONG AND WRONG FACTS HAVE BEEN PLEADED BEFORE THE AUTHORITIES BELOW. IT WOULD CLEARLY INDICATE THAT ASSESSEE NEVER SOLD ANY ALTER NATE PLOT TO THIS COMPANY FOR ANY CONSIDERATION. THE ASSESSING OFFICER IN THE BEGINNING OF THE ASSESSMENT ORDER, NOTED THAT T HE EXPLANATION OF THE ASSESSEE HAS BEEN CALLED FOR FOR HUGE DEPOSITS IN HER BANK ACCOUNT. THE ASSESSING OFFICE R, AFTER GOING THROUGH THE SALE DEED EXECUTED ON 10.07.2008 (PB-52) NOTED THAT ASSESSEE HAS SOLD THE PROPERTY THROUGH H ER 13 REGISTERED ATTORNEY SMT. RINA R. BHATIA TO M/S NANA K RAJ REAL ESTATE PVT. LTD. FOR A CONSIDERATION OF RS. 40 LACS WHICH WERE DULY REFLECTED IN THE BANK ACCOUNT. THE ASSESSING OFFICER WAS THUS, WRONG IN MENTIONING THE WRONG FACTS IN THE AS SESSMENT ORDER. THE SALE DEED IN QUESTION, AS NOTED ABOVE C LEARLY SHOWS THAT SMT. RINA R. BHATIA SOLD THE ALTERNATE PLOT TO M/S NANAK RAJ REAL ESTATE PVT. LTD. FOR A CONSIDERATION OF RS . 40 LACS AND ENTIRE CONSIDERATION OF RS. 40 LACS HAVE BEEN RECEI VED BY THE SELLER SMT. RINA R. BHATIA AND THIS FACT HAS ALSO B EEN CONFIRMED BY LD. COUNSEL FOR THE ASSESSEE THAT THE TOTAL CONSIDERATION IS RECEIVED BY MOTHER OF THE ASSESSEE ON EXECUTION OF THE SALE DEED. THE ASSESSING OFFICER, THEREFORE, RECORDED THE WRONG FINDINGS AND FACTS IN ASSESSMENT ORDER AND HAS WRONGLY DECIDED THE CLAIM OF THE ASSESSEE. IT WOULD, THUS MAKE IT CLEAR THAT THE ASSESSING OFFICER, INSTEAD O F VERIFYING THE HUGE DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE A ND TAKING APPROPRIATE ACTION AGAINST THE ASSESSEE FOR TAXING THE ENTIRE UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT OF THE ASSE SSEE, HAS ACCEPTED WRONG FACTS AND DID NOT TAKE ACTION FOR TA XING THE ENTIRE AMOUNT AS TAXABLE INCOME IN THE HANDS OF THE ASSESSEE. THUS, THE ASSESSEE HAS NOT ACQUIRED ANY PROPERTY FR OM HER MOTHER AT ANY POINT OF TIME AND IN THE ABSENCE OF A NY VALID GIFT DEED EXECUTED IN HER FAVOUR IN RESPECT OF THE ALTER NATE PLOT, ASSESSEE WOULD NOT GET ANY RIGHT TITLE OR INTEREST IN THE ALTERNATE PLOT AND WOULD NOT ACQUIRE ANY PROPERTY F OR THE PURPOSE OF CLAIMING LONG TERM CAPITAL GAIN. THUS, NO INDEXATION BENEFIT COULD BE GIVEN TO THE ASSESSEE A T ALL. 14 16. SECTION 49(1)(II) OF THE ACT PROVIDES, WHERE THE CAPITAL ASSET BECOME THE PROPERTY OF THE ASSESSEE UNDER A GIFT OR WILL, THE COST OF ACQUISITION OF THE ASSET SHALL BE DEEME D TO BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PROPERTY ACQUIR ED IT, AS INCREASED BY THE COST OF ANY IMPROVEMENT OF THE ASS ETS INCURRED OR BORNE BY THE PREVIOUS OWNER OR THE ASSESSEE, AS THE CASE MAY BE. 17. SECTION 2(42A) [EXPLANATION 1(B)] OF THE ACT PR OVIDES THE DEFINITION OF SHORT TERM CAPITAL GAIN MEANS A CAPIT AL ASSET HELD BY THE ASSESSEE FOR NOT MORE THAN 36 MONTHS IMMEDIA TELY PRECEDING THE DATE OF ITS TRANSFER AND IN DETERMINI NG THE PERIOD FOR WHICH ANY CAPITAL ASSET IS HELD BY THE ASSESSEE IN THE CASE OF A CAPITAL ASSET WHICH BECOMES THE PROPERTY OF TH E ASSESSEE IN THE CIRCUMSTANCES MENTIONED IN SUB-SECTION (1) OF S ECTION 49, THERE SHALL BE INCLUDED THE PERIOD FOR WHICH THE AS SET WAS HELD BY THE PREVIOUS OWNER REFERRED TO IN THE SAID SECTI ON. 18. BEFORE APPLYING THE ABOVE PROVISIONS OF THE INC OME TAX ACT, IT IS FOR THE ASSESSEE TO PROVE THAT THE CAPIT AL ASSET BECOME THE PROPERTY OF THE ASSESSEE UNDER A GIFT, THEN THE COST OF ACQUISITION OF THE ASSET SHALL BE DEEMED TO BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PROPERTY ACQUIRED I T. IN THE CASE OF THE ASSESSEE, AS NOTED ABOVE, THOUGH A DECL ARATION OF GIFT WAS EXECUTED ON 30.12.2004 BY MOTHER OF THE AS SESSEE IN FAVOUR OF THE ASSESSEE IN RESPECT OF THE ORIGINAL P LOT, BUT THE ORIGINAL PLOT WAS ACQUIRED BY THE RAILWAYS AND AS S UCH NO PROPERTY CAME INTO THE RIGHT TITLE OR INTEREST OF S MT. RINA R. BHATIA. THEREFORE, NO GIFT DEED COULD BE EXECUTED IN RESPECT OF 15 THE ORIGINAL PLOT. FURTHER, THE GIFT IN QUESTION D ATED 30.12.2004 WAS HELD TO BE VOID AND ILLEGAL AND AS S UCH, COULD NOT BE ACTED UPON BETWEEN THE PARTIES. IT MAY ALSO BE NOTED HERE THAT ON ALLOTMENT OF THE ALTERNATE PLOT IN THE YEAR 2008, NO GIFT DEED WAS EXECUTED BY MOTHER OF THE ASSESSEE IN FAVOUR OF THE ASSESSEE FOR TRANSFERRING THE ALTERNATE PLOT BY WAY OF ANY GIFT IN FAVOUR OF THE ASSESSEE. IT IS ALSO NOTED A BOVE THAT LUCKNOW DEVELOPMENT AUTHORITY EXECUTED THE REGISTER ED SALE DEED OF THE ALTERNATE PLOT IN FAVOUR OF MOTHER OF T HE ASSESSEE AND MOTHER OF THE ASSESSEE VIDE REGISTERED SALE DEE D, TRANSFERRED THE ALTERNATE PLOT IN FAVOUR OF M/S NAN AK RAJ REAL ESTATE PVT. LTD. AND SHE RECEIVED THE TOTAL CONSIDE RATION. THEREFORE, NONE OF THE PROVISIONS OF SECTION 49 OR SECTION 2(42A) OF THE INCOME TAX ACT WOULD APPLY IN THE CAS E OF THE ASSESSEE BECAUSE THE ASSESSEE NEVER ACQUIRED ANY AS SET OR PROPERTY IN QUESTION THROUGH ANY VALID GIFT. 18(I) CONSIDERING THE ABOVE DISCUSSION AND DOCUME NTS ON RECORD, IT IS CLEAR THAT THE CLAIM OF THE ASSESSEE OF LONG TERM CAPITAL GAIN WAS WHOLLY INVALID, AGAINST THE PROVIS IONS OF LAW AND ASSESSEE WOULD NOT BE ENTITLED FOR ANY RELIEF. IT MAY ALSO BE NOTED HERE THAT ASSESSEE CLAIMED LONG TERM CAPIT AL GAIN OUT OF THE SALE TRANSACTION OF ALTERNATE PLOT IN WHICH SHE HAS NO RIGHT TITLE OR INTEREST AND THE ASSESSING OFFICER M ADE IT A CASE OF SHORT TERM CAPITAL GAIN WITHOUT ANALYZING THE DO CUMENTS ON RECORD APPROPRIATELY. OTHERWISE, THE ASSESSING OFF ICER SHOULD HAVE TAXED THE ENTIRE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. HOWEVER, WE ARE AWARE OF THE FACTS T HAT THE TRIBUNAL HAS NO POWER TO ENHANCE THE ASSESSMENT, TH EREFORE WE 16 ARE CONSTRAINED TO HOLD THAT THE CLAIM OF THE ASSES SEE WAS NOT JUSTIFIED AT ALL IN THE FACTS AND CIRCUMSTANCES OF THE CASE FOR CLAIMING LONG TERM CAPITAL GAIN IN THE MATTER. 19. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS SHELLY PRODUCTS & ANOTHER 261 ITR 367 HELD, ASSESSEE FILING A RETURN AND PAYING TAX BY SELF ASSESSMENT ASSESSMENT ORDE R MADE BY THE ASSESSING OFFICER HELD VOID AB INITIO ASSESSE E NOT ENTITLED TO REFUND OF ADVANCE TAX PAID AND TAX PAID ON SELF ASSESSMENT. THE ORDER OF ITAT BANGALORE BENCH IN THE CASE OF A. SURESH RAO VS ITO (SUPRA) RELIED UPON BY LD. COUNSEL FOR THE A SSESSEE IS DISTINGUISHABLE ON FACTS BECAUSE IN THAT CASE, THE ASSESSEE SOLD THE ALTERNATE PLOT AND ASSESSEE ONLY COMPUTED AND C LAIMED LONG TERM CAPITAL GAIN AS THE OWNER BUT HERE IN THIS CAS E, ASSESSEE WAS NEVER OWNER OF THE ALTERNATE PLOT. SINCE, THE ASSESSEE HAS ALREADY PAID TAXES CLAIMING THE TRANSACTION TO BE C APITAL GAINS, THOUGH THE FACTS OTHERWISE PROVED BUT ASSESSEE CANN OT ESCAPE THE LIABILITY OF PAYING TAXES IN ACCORDANCE WITH LA W AND AS NOTED ABOVE. SINCE THE TRIBUNAL HAS NO POWER TO EN HANCE THE ASSESSMENT, THEREFORE, WE HAVE NO ALTERNATE EXCEPT TO DISMISS THE APPEAL OF THE ASSESSEE CONSIDERING TO BE FRIVOL OUS WITHOUT ANY BASIS IN LAW. THE CLAIM OF THE ASSESSEE FOR LO NG TERM CAPITAL GAIN IS ACCORDINGLY, REJECTED. 20. THE ASSESSEE, IN THIS APPEAL ALSO CLAIMED DEDUC TION OF RS. 1 LAC ON ACCOUNT OF TRANSFER/COMMISSION EXPENSES. THE LD. CIT(APPEALS) NOTED THAT NO EVIDENCE WAS PRODUCED BE FORE ASSESSING OFFICER TO SUPPORT THE CLAIM OF PAYMENT T O THE BROKER AND THE EVIDENCE WHICH WAS PRODUCED BEFORE HIM DID NOT 17 INSPIRE ANY CONFIDENCE. EVEN ON GIVING THESE FINDI NGS, LD. CIT(APPEALS) ALLOWED DEDUCTION OF RS. 1 LAC AND CON FIRMED THE ADDITION OF RS. 1 LAC. THE ASSESSEE IN THE PAPER B OOK FILED SOME PHOTO COPIES OF THE RECEIPTS AT PAGE 32 AND 34 OF THE PAPER BOOK CLAIMING IT TO BE TRANSFER/COMMISSION EX PENSES. IT IS INTERESTING TO NOTE THAT THESE RECEIPTS FIND MEN TION THE TRANSFER/COMMISSION CHARGES IN RESPECT OF ORIGINAL PLOT. NOTHING IS MENTIONED IF ANY COMMISSION WAS PAID ON SALE OF THE ALTERNATE PLOT. THE ORIGINAL PLOT WAS ADMITTEDLY A CQUIRED BY THE RAILWAYS, THEREFORE THERE IS NO QUESTION OF MAKING ANY PAYMENT FOR COMMISSION. THEREFORE, CLAIM OF ASSESSEE IS WH OLLY UNJUSTIFIED AND PARTICULARLY IN VIEW OF THE FINDING S GIVEN ABOVE, THAT ASSESSEE IS NOT OWNER OF THE ALTERNATE PLOT HA VING NO RIGHT TITLE OR INTEREST IN THE SAME. THEREFORE, CLAIM OF DEDUCTION OF THE COMMISSION/TRANSFER CHARGES IS ALSO REJECTED. 21. THE ASSESSEE ALSO CLAIMED IN THE GROUND OF APPE AL THE COST OF IMPROVEMENT INCURRED IN THE ORIGINAL PLOT IN A S UM OF RS. 4,68,536/- IN DIFFERENT FINANCIAL YEARS AS IS MENTI ONED IN GROUND NO. 5 OF THE APPEAL OF THE ASSESSEE. THE LD . COUNSEL FOR THE ASSESSEE ADMITTED THAT THE POSSESSION OF ORIGIN AL PLOT WAS NEVER HANDED OVER TO THE ASSESSEE OR HER MOTHER. U LTIMATELY, IT WAS ACQUIRED BY THE RAILWAYS. THEREFORE, THERE IS NO QUESTION OF RAISING ANY CONSTRUCTION IN THE ORIGINAL PLOT AT ANY POINT OF TIME. THE CONSTRUCTION COULD BE RAISED IN THE PLOT WHEN ITS SANCTIONED PLAN IS APPROVED BY THE COMPETENT AUTHOR ITY ON HANDING OVER POSSESSION BY THE LUCKNOW DEVELOPMENT AUTHORITY. SINCE POSSESSION OF THE ORIGINAL PLOT W AS NEVER GIVEN TO THE MOTHER OF THE ASSESSEE, THEREFORE, IT APPEAR S THAT 18 ASSESSEE'S MOTHER MIGHT HAVE RAISED SOME ILLEGAL CO NSTRUCTION IN THE ORIGINAL PLOT, THEREFORE FOR ILLEGAL CONSTRU CTION IN THE PLOT, NO SUCH BENEFIT COULD BE GIVEN UNDER THE INCO ME TAX ACT. WE MAY ALSO NOTE HERE THAT SINCE THE CLAIM OF CAPIT AL GAIN IS RAISED IN RESPECT OF THE ALTERNATE PLOT, THEREFORE SUCH GROUND IS ALSO FRIVOLOUS AND IS LIABLE TO BE DISMISSED. FURT HER, THE ASSESSEE NEVER BECOME OWNER AND NEVER ACQUIRED THE TITLE IN THE ORIGINAL PLOT, THEREFORE, THE CLAIM OF THE ASSE SSEE IS WHOLLY UNJUSTIFIED AND IS LIABLE TO BE REJECTED. FURTHER, NO PROPER DOCUMENTARY EVIDENCES HAVE BEEN FILED ON RECORD TO SUBSTANTIATE THE GROUND FOR CLAIMING COST OF IMPROV EMENT IN THE ORIGINAL PLOT. THIS GROUND IS ALSO DISMISSED. 22. NO OTHER POINT IS ARGUED OR RAISED. 23. CONSIDERING THE ABOVE DISCUSSION, WE DO NOT FIN D THE CLAIM OF LONG TERM CAPITAL GAIN TO BE VALID AND JUS TIFIED IN ACCORDANCE WITH LAW. THEREFORE, APPEAL OF THE ASSE SSEE IS DISMISSED. 24. THE COPY OF THIS ORDER BE FORWARDED TO THE CONC ERNED CCIT FOR TAKING REMEDIAL ACTION AGAINST THE ASSESSING OF FICER. 25. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD DECEMBER,2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD DECEMBER,2014. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD