2018 (4) TMI 2009

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....ore, AO could not have reopened the assessment after completion of four years, since assessment was originally completed u/s.143(3). Learned AR contended that as per the reasons recorded, there is no failure on the part of the assessee to disclose fully and truly all material facts. 3. We have considered rival contentions and carefully 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....

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....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 and 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 the 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....

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.... 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, accordingly, 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 assessee 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 valu....