TaxTMI 
TaxTMI 
2016 (3) TMI 600
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.... allowing the appeal on the issues raised by the Revenue and in reversing the order of the CIT(Appeals) on the said issues and in doing so whether the Tribunal acted perversely? II) Whether the Tribunal failed to appreciate that the Divorce petition and/or decree read with other agreements and/or documents clearly establish the intention of the parties therein that the assessee was a co-owner of the property in question providing 50% of the consideration for acquiring the said property and/or by virtue of mutual agreement the ex-husband of the assessee parted with 50% of the property in question in favour of the assessee by way of alimony and as such Section 49(1)(iii) of the I.T. Act will be applicable and whether the Tribunal was justified in holding that 50% of the cost of acquisition of capital gains in the hands of the assessee and whether the said findings of the Tribunal are perverse? III) Whether the Tribunal is justified in upholding the disallowance made by the Assessing Officer of claim of the assessee for Rs. 50,000/- as brokerage for computation of long term capital gains and in doing so whether the findings and/or reasoning and/or decisions of the Tribunal are b....
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.... his nominee. The assessing officer also observed that since the flat at 9, Mandeville Gardens was owned exclusively by the former husband of the assessee and the sale proceeds from the said property were utilized to purchase the matrimonial house at 25, Mandeville Gardens, therefore the former husband of the assessee was the full owner of the newly purchased matrimonial house. The assessing officer on the aforesaid basis held as follows:- "...In the circumstances, the assessee could not get the benefit of cost of acquisition u/s 48 of the I.T. Act, 1961, as she did not contribute any investment to purchase the flat at 25, Mandeville Gardens, Calcutta. In Section 49(2) it was cleared that the self generated acquired property's cost of acquisition is taken to be nil." The assessing officer by the aforesaid order also disallowed the claim for brokerage. The assessee preferred an appeal before the Commissioner of Income Tax (Appeals) (hereinafter referred to as 'the CIT(A)') against the order of the assessing officer. The CIT(A) by his order dated 14th February, 2002 allowed the appeal of the assessee and held as follows:- "He has further disallowed the claim of brokerage pai....
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....ence of divorce resulted in splitting the sale consideration and the rent received if let out to be split during the intervening period....We are unable to convince ourselves that the assessee who did not participate in the acquisition of the said property and was merely a nominee in the happier days could get the liability of the cost of acquisition subsequent to divorce for which she never contributed. The word 'devolution' has to be understood in the manner it was for the purpose of changing "hands from one owner to another even inter vivos without disturbing the status of the entity which becomes owner thereof without having to undergo corresponding devolution. In other words, the assessee in this case having parted from her husband was afforded 50% of the consideration which in fact could not be termed as asset entitled to capital gains. The learned CIT(A) proceeded to consider the application of the provisions of section 49(1)(iii) by holding that the property was acquired by the assessee from her exhusband. It was on account of alimony that the husband mutually agreed to part with 50% thereof as is noted in the decree of divorce dated 12.01.94. There was no intention before ....
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.... our view, the receipt of that amount must be looked upon as a capital receipt. In view of this, we do not think it necessary to consider whether the said receipt could be regarded as casual receipt or in the nature of a windfall." Ms. Asha Ghutghutia learned counsel appearing on behalf of the revenue contended that the Tribunal did not hold that the 50% of the sale consideration given to the wife was on account of alimony. We are not impressed by the submission advanced by the learned counsel for the revenue. The Tribunal has categorically held that:- "It was on account of alimony that the husband mutually agreed to part with 50% thereof as is noted in the decree of divorce dated 12.01.1994." She contended that the assessee cannot make out a new case. We are unable to agree with this contention either. It was open to the assessee to contend that the receipt was capital in nature and therefore not taxable. She must have been advised to claim benefit on the basis of capital gains. When the alternative case, which the assessee could have made, has not only been found against her but has also been put forward as an answer to her claim, it is not improper to grant her the benefi....