Capital gains not chargeable: Tribunal rules no cost of acquisition in FSI transfer

The Tribunal dismissed the department's appeal, affirming that no capital gains are chargeable due to the absence of a cost of acquisition in the transfer of Floor Space Index (FSI), in line with the decisions of the Coordinate Bench.

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Issues involved: The judgment deals with the issue of the deletion of a specific amount by the Assessing Officer (AO) regarding the transfer of development rights of additional Floor Space Index (FSI) and whether it should be assessed as long-term capital gains.

Summary of Judgment:

Issue 1: Deletion of amount by AO

The Respondent Co-op. Housing Society's building was constructed in 1971 on a plot of land in Mumbai. In 1991, the Municipal Corporation relaxed FSI rules, and the Society received additional FSI which was sold to developers. The CIT(A) allowed the appeal of the assessee Society, stating that no capital gains shall be exigible. The Coordinate Bench in the assessee's own case for the assessment year 2006-07 also held that the amount received on the sale of FSI is not taxable under capital gains. The Tribunal upheld the CIT(A)'s decision, stating that the gain arising on the transfer of FSI/TDR is chargeable to tax under capital gains, but as there is no cost of acquisition, there will be no liability to capital gains.

Issue 2: Applicability of Coordinate Bench Decision

The AR pointed out that the impugned issue is now covered by the decision of the Coordinate Bench in the assessee's own case. Since the issue has been decided by the Coordinate Bench and there is no deviation in facts, the Tribunal dismissed the appeal filed by the department, upholding the decision of the CIT(A) and the Coordinate Bench.

In conclusion, the Tribunal dismissed the department's appeal, following the decisions of the Coordinate Bench and holding that no capital gains are chargeable due to the lack of cost of acquisition in the transfer of FSI.

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