MOHD.IQBAL BADGUJAR, MUMBAI V. THE ASSTT.C.I.T.-19(2), MUMBAI

ITA 5505/MUM/2013

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4266 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 19-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Surrender of tenancy right; Set aside; Capital Gains
• Section: 234B; 143(1); 201; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH , JM I.T.A. NO S . 5504 /M/ 20 1 3 & 5505 /M/201 3 ( ASSESSMENT YEAR : 2006 - 07 & 20 07 - 08 ) MOHD. IQBAL BADGUJAR D - 2/15, KHIRA NAGAR, S.V. ROAD, SANTACRUZ (W) MUMBAI - 400054 . VS. ACIT - 19(2) PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 13 ./ ./ PAN/GIR NO. : AAEPB0296K ( APPELLANT ) .. ( RESPONDENT ) DATE OF HEARING : 21 . 12 .201 8 DATE OF PRONOUNCEMENT : 13 . 0 3 . 201 9 O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE ABOVE MENTIONED APPEALS AGAINST THE DIFFERENT ORDER PASSED BY THE COMMIS S IONER OF INCOME TAX (APPEALS) - 3 0 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR S 2006 - 07 & 2007 - 08 . I.T.A.NO.5504/M/2013 2 . THE ASSESSEE HAS FILED THE PRESENT A PPEAL AGAINST THE ORDER DATED 13 .0 6 .201 3 PASSED BY THE COMMISS IONER OF INCOME TAX (APPEALS) - 30 , ASSESSEE BY: SHRI D. C. JAIN (AR ) DEPARTMENT BY: SHRI D. G. PANSARI (SR. A R) / SHRI MANOJ KUMAR SINGH (DR) ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 2 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVAN T TO THE ASSESSMENT YEAR 2006 - 07 . 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN HOLDING THAT THE SUPPLEMENTARY DEED OF RETIREMENT DATED 05.04.1998 PROVIDING COMPENSATION BY WAY OF CONSTRUCTED AREA OF 13,500 SQ.FT. FREE OF COST, IS DEVOID OF ANY SOUND LOGIC AND, THERE FORE, IS EVIDENTLY AN ATTEMPT TO DEFRAUD THE REVENUE. II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN HOLDING THAT THE RECEIPT FROM MIS. SONI & ASSOCIATES FREE OF COST 13,500 SQ.FT. BUILT UP AREA DID NOT ACC RUE OR AROSE IN THE ASSESSMENT YEAR 1999 - 2000 WHEN THE SUPPLEMENTARY DEED DATED 05.04 1998 WAS EXECUTED AND, THEREFORE, ERRED IN HOLDING THAT NO CAPITAL GAIN ACCRUED OR AROSE IN THE ASSESSMENT YEAR 1999 - 2000. III) ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LEARNED C.I.T4A) ERRED ALSO IN REJECTING ALTERNATE CLAIM THAT THE RECEIPT OF FREE OF COST 11,000 SQ.FT. AREA IN THE' ASSESSMENT YEAR 2003 - 2004, WHEN THE AGREEMENT WITH MIS. NAMAH REALTORS WAS EXECUTED ON 27.03.2003 PROVIDING FOR THE COMPENSATION OF 11,0 00 SQ.F T. BUILT .O AREA FREE OF COST TO THE APPELLANT. IV) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN HOLDING THAT THE AGREEMENT DATED 05.04.1998 WAS NOT A GENUINE AGREEMENT ENTERED INT O BY THE APPELLANT WITH MIS. SONI ASSOCIATES. V) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN CONFIRMING THE FINDINGS OF THE ASSESSING OFFICER THAT THE PROVISION FOR PROVIDING TTE OF COST CONSTRUCTED BUILT UP AREA OF 13,500 SQ.FT. TO THE APPELLANT DOES NOT HAVE ANY COST OF ACQUISITION AND, THEREBY ERRED IN REJECTING THE APPELLANT'S SUBMISSION THAT THE COST OF CONSTRUCTION PER SQ.TT. OF THE BUILT UP AREA SHOULD BE CONSIDERED AS COST OF ACQUISITION OF FREE OF CO ST AN AREA OF 13,500 SQ.FT. BUILT UP AREA. VI) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN HOLDING THAT THERE IS NO COST OF ACQUISITION OF ASSET PROVIDING FREE OF COST AN AREA OF 5,500 SQ.FT. TO MOHD. LQBAL BADGUJAR AS THE APPELLANT IS NOT JUSTIFIED IN CLAIMING THE COST OF ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 3 CONSTRUCTION IN THE ACCOUNTING YEAR 1998 - 1999 TO BE THE COST OF THE FREE OF COST AREA OF 13,500 TO THE APPELLANT. VII) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEAR NED C.I.T.(A) ERRED IN NOT CONSIDERING THE SUBMISSIONS OF THE APPELLANT INCLUDING THE LEGAL SUBMISSIONS IN RESPECT OF THE RECEIPT OF RS.1,03,51,756/ - AS LIABLE TO CAPITAL GAIN TAX WITHOUT DEDUCTION OF ANY COST OF ACQUISITION THERE FOR. VIII) ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN NOT DISPOSING OFF THE GROUND REGARDING THE LEVY OF INTEREST LI/S. 234B. IX) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY GROUND(S) OF APPEAL EITHER BEFORE OR DU RING THE COURSE OF HEARING OF THE APPEAL. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 31 . 10 .20 06 FOR THE A.Y.2006 - 07 DECLARING TOTAL IN COME TO THE TUNE OF RS.46,98,887/ - . THEREAFTER, THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER, AN INFORMATION WAS RECEIVED FROM ACIT 25(2) THAT THE ASSESSEE WAS PAID TOTAL COMPENSATION ON ACCOUNT OF RETIREMENT BENEFITS AMOUNTING TO RS,2,00,56,927/ - OUT OF WHICH AN AMOUNT OF RS.1,03,51,756/ - WAS RECEIVED IN A.Y. 2006 - 07 AND THE BALANCE IN A.Y. 2007 - 08 FROM THE SALE CONSIDERATION RECEIVED BY M/S. SONI & ASSOCIATES IN OM ELEGANCE PROJECT. THEREAFTER, THE CASE OF THE ASSESSEE WAS REOPENED U/S 148 OF THE ACT AND NECESSARY NOTICES U/S 143 (2) & 142(1 ) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE IS A CIVIL CONTRACTOR CARRYING ON BUSINESS THROUGH HIS PROPRIETARY CONCERN M/S. M.I. CONSTRUCTIONS. THE ASSESSEE WAS EARLIER A PARTNER IN M/S. SONI & ASSOCIATES AND HAD RETIRED FROM THE PA RTNERSHIP FIRM ON 03.04.1998. THE COMPENSATION PAYABLE TO THE ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 4 ASSESSEE IN ACCORDANCE WITH LAW SUPPLEMENTARY DEED DATED 05.04.1998 WHICH IS MENTIONED AS UNDER.: - IT HAS BEEN MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO THAT THE RETIRED PARTNER SHALL BE PAID HIS SHARE IN THE PROFITS AND ASSETS OF THE FIRM AS UNDER: A FREE OF COST CONSTRUCTED SALEABLE AREA OF 13500 SQ.FT. IN THE FORM OF FLATS IN THE PROPOSED BUILDING TO BE CONSTRUCTED ON THE LAND PROPERTY BEARING CTS NO. 1147, 1148, 1151, 1152, 1230A/1 OF VILLAGE MALAD, OFF . CHINCHOLI BUNDER ROAD, MALAD (W), MUMBAI THE ASSESSEE RECEIVED AN AMOUNT OF RS.1,03,51,756/ - DURING THE YEAR FROM SONI & ASSOCIATES AS RETIRING PARTNER ASSIGNING OR RELINQUISHING HIS SHARE OR RIGHT IN PAR TNERSHIP AND ITS ASSETS, IN FAVOUR OF THE CONTINUING PARTNERS, WHICH IS A CAPITAL ASSET AND NEED TO BE TAXED UNDER CAPITAL GAIN. SINCE THE RIGHT GENERATED IN THE YEAR OF CONSIDERATION , THEREFORE, THE ASSESSEE HAS SHOWN THE LONG TERM CAPITAL GAIN ON THE BAS IS OF RETIREMENT DEED. THE ASSESSEE SHOWN THE LONG TERM CAPITAL GAIN AS UNDER.: - SHARE FROM SONI ASSOCIATES 1,03,51,755/ - LESS: COST OF ACQUISITION 66,00,000 INDEXED COST OF ACQUISITION 93,45,299 CAPITAL GAIN 10,06,456 5. THE AO DID NOT FIND THE CLAIM OF THE ASSESSEE JUSTIFIABLE, THEREFORE, THE ENTIRE AMOUNT OF RS.10351756/ - RECEIVED BY THE ASSESSEE DURING THE YEAR WAS BROUGHT TO TAX AS LONG TERM CAPITAL GAIN. ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 5 T HE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS. 1,39,98,180/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE CLAIM OF THE ASSESSEE , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO S . 1 TO 6 6 . AT THE TIME OF ARGUMENT, THESE ISSUES HAVE NOT BEEN PRESSED B Y THE ASSESSEE, THEREFORE, THESE ISSUES A R E BEING DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE BEING NOT PRESSED . ISSUE NO. 7 7. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED ASSESSING THE LONG TERM CAPITAL GAIN IN SUM OF RS.1,03,51,755/ - WITHOUT DEDUCTION OF COST OF ACQUISITION. THE ASSESSEE WAS THE PARTNER IN THE FIRM M/S. SONI & ASSOCIATES SINCE 1992. THIS FIRM HAD UNDERTAKEN THE DEVELOPMENT OF PIECE OF LAND AT MUMBAI. THE APPELLANT AND HIS BROTHER WERE THE PARTNER WITH THE FIRM M/S. SONI ASSOCIATE . T HEY DECIDED TO THE QUIT AND RETIRE D FROM THE PART NERSHIP W.E.F. MARCH 31 ST , 1998. THE ASSESSEE ALSO RECEIVED CAPITAL BALANCE IN SUM OF RS.15 LAKHS AS GOODWILL WHICH WAS CREDIT ED TO THE CAPITAL GAIN ON 31 ST MARCH 1998. THE APPELLANT WAS PROMISED TO GIVE 13,500 SQ.FT. IN LIEU OF RETIREMENT BENEFIT . I N MARC H 2003, M/S. SONI ASSOCIATES ENTERED INTO AN AGREEMENT OF NAMAHA REALTORS AND CONTRACT OF DEVELOPMENT WAS SIGNED BETWEEN THEM . NAMAHA REALTORS TOOK THE RESPONSIBILITY TO GIVE THE APPELLANT 13,500 ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 6 SQ. FT. OF SALEABLE AREA FREE OF COST. THE NAMAHA REALTORS G AVE 11,000/ - SQ. FT. OF CONSTRUCTED AREA TO THE APPELLANT WHICH WAS S OLD BY APPELLANT IN THE TWO YEARS I.E. IN THE A.Y. 2006 - 07 IN SUM OF RS.10,35 ,17,455/ - AND IN THE A.Y. 2007 - 08 IN SUM OF RS.97,05,171/ - THE ASSESSEE ASSESSED THE COST OF ACQUISITION @ 1200 PER SQ. FT. AND THE INDEXATION COST WAS ASSESSED TO THE TUNE OF RS.93,45,299/ - . THE AO ASSESSED THE LONG TERM CAPITAL GAIN TO THE TUNE OF RS.1,03,51,756/ - WITHOUT ALLOWING THE COST OF ACQUISITION. AT THE TIME OF ARGUMENT, THE LD. REPRESENTATIVE OF THE ASS ESSEE HAS PLACED RELIANCE UPON THE DECISION OF THE MUMBAI TRIBUNAL IN ITA. NO. 3947/M/2016 TITLED AS ACIT VS. SHRI KRISHNA PHARMACY DATED 19.04.2018. THE RELEVANT FINDING IS HEREBY REPRODUCED AS UNDER.: - 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULL Y GONE THROUGH THE REASONS RECORDED BY THE AO AND FOUND THAT IN THE REASONS SO RECORDED, THE AO HAS CLEARLY MENTIONED AS UNDER: - IT IS CLEAR FROM THE ABOVE THAT THE ASSESSEE HAS NOT INCURRED ANY COST OF ACQUISITION OF THE SAID PROPERTY DURING F.Y.2006 - 07 . THEREFORE, ACTION OF ASSESSEE TO CONSIDER ACQUISITION COST OF RS.18,19,200/ - AND WORKING OF INDEXATION COST OF RS.54,68,176/ - IS NOT IN ORDER AND HAS TO BE DISALLOWED. 4. IT IS CLEAR FROM THE ABOVE REASONING THAT THERE WAS FAILURE ON THE PART OF THE AS SESSEE TO DISCLOSE THE FACT THAT NO COST HAS BEEN INCURRED FOR THE ACQUISITION OF THE SAID PROPERTY. ACCORDINGLY, THERE IS NOT MERIT IN THE LEGAL GROUND TAKEN BY THE ASSESSEE. 5. IN THE REVENUES APPEAL, REVENUE IS AGGRIEVED FOR DELETING THE ADDITION MADE U/S.50C OF THE IT ACT. 6. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 7 7. DURING THE COURSE OF SCRUTINY ASSESSMENT, AO MADE ADDITION BY INVOKING PROVISIONS OF SECTION 50C. 8. BY THE IMPUGNED ORDER, CIT(A) DELETED THE SAME AFTER OBSERVING AS UN DER: - 9. THE APPELLANT ACQUIRED 'SHOP NO. 2, SUMEET SADAN' VIDE AGREEMENT DATED 04.04.1989 FROM M/S ABIS CONSTRUCTION ADMEASURING 1200 SQ. FT (CARPET) ON OWNERSHIP BASIS FREE OF COST. THE SAID PROPERTY WAS ACQUIRED IN LIEU OF TENANCY RIGHTS. AS PER DECLARA TION OF THE APPELLANT, SUM OF RS. 56,350/ - & RS. 1,12,700/ - WERE PAID TOWARDS STAMP DUTY AND PENALTY FOR THE AGREEMENT DATED 04.04.1989. THIS SHOP NO. 2, SUMEET SADAN WAS SOLD BY THE APPELLANT IN THE F.Y. 2006 - 07 CORRESPONDING TO A.Y. 2007 - 08. ACCORDING TO THE AO, THE APPELLANT HAS NOT INCURRED ANY COST OF ACQUISITION AND, THEREFORE, NO COST CAN BE ATTRIBUTED FOR ACQUIRING THE SAID SHOP. ON THE OTHER HAND, THE APPELLANT HAS CLAIMED THAT THE SHOP WAS ALLOTTED TO IT ON OWNERSHIP BASIS IN LIEU OF SURRENDER OF TENANCY RIGHT AND, THEREFORE, THE MARKET VALUE OF THE ACQUIRED SHOP SHOULD BE TAKEN AS THE COST OF ACQUISITION AS ON 04.04.1989. THE MARKET VALUE OF THE SHOP NO. 2 WAS CALCULATED ON THE BASIS OF COST INCURRED FOR PURCHASE OF TWO OTHER FLATS I.E., A - 3 AN D A - 4 ON THE FIRST FLOOR OF THE SAME BUILDING WHICH WERE ALSO SOLD ALONG WITH THE SAID SHOP NO. 2 AT RS. 18,19,200/ - (RS.6,96,600/ - *1200/460). 10. IN THIS REGARD, I FIND THAT THE CASE OF THE APPELLANT IS IDENTICAL TO DECISION OF HON'BLE ITAT, MUMBAI IN T HE CASE OF MRS. TAUQEER FATEMA RIZVI IN ITA NO. 8862/MUM/2011 DATED 02.05.2014. IN THE CASE OF MRS TAUQEER FATEMA RIZVI TOO THE ASSESSEE HAS GOT THE OWNERSHIP RIGHT OF THE PROPERTY IN EXCHANGE OF TENANCY RIGHTS AS THE ASSESSEE WAS AN OLD TENANT IN THE SAME BUILDING. THE DATE OF AGREEMENT 'WITH THE BUILDER WAS 6TH MAY, 1982. THE SAID NEWLY ACQUIRED FLAT WAS SOLD ON 29TH OCTOBER, 2004. THE ASSESSEE DID NOT PAY ANY CONSIDERATION TO THE BUILDER EXCEPT SECURITY DEPOSIT OF RS. 2,000/ - . FOR THE CALCULATION OF CAPI TAL GAINS, THE ASSESSEE ON THE BASIS OF SIMILAR TRANSACTIONS UNDERTAKEN BY THE BUILDER IN THE MONTH OF MAY, 1982, ADOPTED THE VALUE OF RS. 3,64,OOO/ - AS THE COST OF ACQUISITION. THE A.O TOOK THE COST AT RS. 2,0007 - AND REJECTED THE CLAIM OF RS. 3,64,0007 - . THE HON'BLE ITAT ALLOWED THE APPEAL OF THE ASSESSEE AND DIRECTED THE A.O TO ADOPT THE VALUE OF FLAT AS ON THE DATE ON WHICH THE ASSESSEE GOT THE POSSESSION OF THE FLAT. THE RATIO OF THE SAID JUDGMENT IS REPRODUCED AS UNDER: , 'IT IS NOW QUITE SETTLED THA T FOR THE PURPOSE OF COST OF ACQUISITION UNDER SECTION 48 AND 49, THE TENANCY RIGHTS IS TO BE TAKEN INTO CONSIDERATION. THIS IS EVIDENT FROM SUB - SECTION (2) OF SECTION 55. THE BUILDER HAS GIVEN THE ALTERNATE FLAT TO THE ASSESSEE ONLY BY VIRTUE OF SURRENDER OF TENANCY RIGHTS BY THE ASSESSEE. HAD THERE BEEN NO TENANCY RIGHT, THE BUILDER ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 8 WOULD HAVE NOT OFFERED ANY FLAT TO THE ASSESSEE, ON OWNERSHIP BASIS. THUS, IT IS A VALUABLE RIGHT ON WHICH COST OF ACQUISITION HAS TO BE DETERMINED. IT IS NOT A CASE THAT THE COST OF ACQUISITION CANNOT BE DETERMINED IN LIEU OF THE SURRENDER OF TENANCY RIGHT AT ALL. ONCE THE COST OF ACQUISITION IS DETERMINATE, THE BENEFIT OF SUCH ACQUISITION HAS TO BE GIVEN WHILE COMPUTING THE TAX ON CAPITAL GAIN. IN THE PRESENT CASE, THE TENANC Y RIGHT GOT CONVERTED INTO ACQUISITION OF A FLAT, WHEN THE ASSESSEE MUST HAVE GOT THE POSSESSION OF NEW FLAT CONSTRUCTED BY THE BUILDER. THUS, THE MARKET VALUE OF THE SAID FLAT AS ON THE DATE OF ITS POSSESSION WOULD BE THE COST OF ITS ACQUISITION AND, ACCO RDINGLY, SUCH COST DEDUCTIBLE WHILE COMPUTING INCOME BY WAY OF CAPITAL GAINS, WHETHER LONG TERM CAPITAL GAIN, AS THE CASE MAY BE. THIS IS AS THE HOLDING PERIOD OF THE CAPITAL ASSETS, BEING THE SAID RESIDENTIAL FLAT, WOULD ONLY COMMENCE FROM THE DATE THE AS SESSEE U/S PUT IN POSSESSION THEREOF AFTER ITS COMPLETION. ACCORDINGLY, WE SET ASIDE THE IMPUGNED BORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER AND DIRECT HIM TO TAKE THE VALUE OF THE FL AT FOR THE PURPOSE OF COST OF ACQUISITION FROM THE YEAR IN WHICH THE ASSESSEE GOT THE ACTUAL POSSESSION OF THE FLAT AND THEN ONLY HE SHALL COMPUTE THE CAPITAL GAIN. THUS, THE ASSESSEE'S GROUND IS PARTLY ALLOWED FOR STATISTICAL PURPOSES.' 11. SINCE FACTS OF THE INSTANT CASE IS IDENTICAL TO THE FACTS OF MRS. TAUQEER FATEMA RIZVI (SUPRA) RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE TRIBUNAL, THE AO IS DIRECTED TO RECOMPUTE THE LONG TERM CAPITAL GAIN ON SALE OF SHOP NO. 2, SUMEET SADAN BY TAKING THE COST OF A CQUISITION AS ON 04.04.1989 AT RS. 18,19,200/ - AND ALLOWING THE INDEXATION FROM FY 1989 - 90 TO THE DATE OF SALE. HENCE, GROUNDS OF APPEAL NO. 1 AND 2 ARE ALLOWED. 9. WE HAD CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT ISSUE UND ER CONSIDERATION IS SQUARELY COVERED NOT ONLY BY THE ORDER OF THE TRIBUNAL IN THE CASE OF MRS TAUQEER FATEMA RIZVI (SUPRA) BUT ALSO BY THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF ABRAR ALVI 117 TAXMAN 95. CIT(A) HAS DECIDED THE ISSUE BY FOLLOWING THE DECISION OF THE TRIBUNAL IN CASE OF MRS TAUQEER FATEMA RIZVI (SUPRA). RESPECTFULLY FOLLOWING THE ORDER OF THE BOMBAY HIGH COURT AS WELL AS TRIBUNAL AS STATED ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR CONFIRMING THE ADDITION MADE U/S.50 C OF THE IT ACT. 8. THE FACT OF THE PRESENT CASE IS QUITE IDENTICAL TO THE CASE RELIED UPON THE LD. REPRESENTATIVE OF THE ASSESSEE. UNDOUBTEDLY, ACCORDING TO THE SAID DECISION THE ACQUISITION COST HAS BEEN ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 9 CONSIDERED WHEN THE ASSESSEE ACQUIRED THE RIGHT OF OWNERSHIP IN LIEU OF TENANCY. ACCORDINGLY, THE COST OF ACQUISITION WAS CONSIDERED ON THE DAY OF EXECUTION OF THE AGREEMENT BY WHICH THE ASSESSEE OBTAIN THE OWNERSHIP RIGHT. IN THE INSTANT CASE ALSO THE ASSESSEE GOT THE OWNERSHIP RIGHT IN LIEU OF HIS RET IREMENT FROM M/S. SONI & ASSOCIATES. THE ASSESSEE HAS A LREADY TAKEN INTO CONSIDERATION THE MARKET RATE OF THE AREA @ 1200 PER SQ. FT. AND ACCORDINGLY ASSESSED THE LONG TERM CAPITAL GAIN IN BOTH THE YEARS. COST OF INDEXATION HAS ALREADY BEEN ASSESSED IN VI EW OF THE PREVALENT MARKET RATE IN THE A.Y. 1998 - 99 , THEREFORE, IN THE SAID CIRCUMSTANCES AND IN VIEW OF THE SAID DECISION OF HONBLE ITAT IN ITA. NO.3947/M/2016 TITLED AS ACIT VS. SHRI KRISHNA PHARMACY DATED 19.04.2018. ACCORDINGLY, W E SET ASIDE THE FINDI NG OF THE CIT( A) ON THIS ISSUE AND HELD THAT THE COST OF ACQUISITION IS LIABLE TO BE DEDUCTED FROM THE LONG TERM CAPITAL GAIN IN SUM OF RS.1,03,51,756/ - AND ACCORDINGLY DECIDE THIS ISSUES IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NO. 8 9. ISSUE NO. 8 IS IN CONNECTION WITH THE LEVYING THE INTEREST U/S 234B OF THE ACT WHICH IS CONSEQUENTIAL IN NATURE, THEREFORE, THERE IS NO NEED TO DECIDE THE ISSUE SEPARATELY. APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED. ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 10 I.T.A.NO. 5505 /M/201 3 6 . THE FACT O F THE PRESENT CASE IS QUITE SIMILAR TO THE FACTS OF THE CASE AS NARRATED ABOVE WHILE DECIDING THE ITA. NO.5504 /M/201 3 ABOVE THEREFORE, THERE IS NO NEED TO REPEAT THE SAME . HOWEVER, THE FIGURE IS DIFFERENT. THE FINDING GIVEN ABOVE WHILE DECIDING THE APPEAL BEA RING IT A. NO.5504 /M/201 3 IS QUITE APPLICABLE AS MUTATIS MUTANDIS IN THIS CASE ALSO . ACCORDINGLY, THE PRES ENT APPEAL IS ALSO BEING HEREBY ALLOWED ON SIMILAR LINES . 7 . IN RESULT, APPEAL S FILED BY THE ASSESSEE ARE HEREBY ORDERED TO BE ALLOWED . ORDER P RONOUNCED IN THE OPEN COURT ON 13. 03 .2019 . SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 13. 0 3 .2019 V IJA Y ITA. NO.5504/M/2013 & 5505/M/2013 A.Y.2006 - 07 & 2007 - 08 11 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI