Decided on December 16,2008



K.S.S. Prasad Rao, J.M. - (1.) THIS appeal filed by the Department having been aggrieved by the order passed by CIT(A), dt. 4th May, 2007 for asst. yr. 2002-03 in the; case of assessee.
(2.) Though initially the Department has taken a ground, later on it has modified the ground and accordingly admitted. Therefore, the sole issue raised by the Department is that on the facts and circumstances of the case that the learned CIT(A) has erred in deleting the addition of Rs. 2,62,263 made by the AO under the head "Capital gain" on sale of plot by adopting index cost of purchase of plot during the year 1990-91, particularly when the title of the plot was issued by the society on 27th June, 1990. Both the parties were heard regarding the issue raised by the Department and its legal implications.
(3.) DURING the course of hearing learned representative of the Department has vehemently argued supporting the order passed by the AO and assailing the order passed by the learned CIT(A) contending inter alia that the learned CIT(A) has not properly appreciated the fact that the title of plot having been issued by the society to the assessee on 27th June, 1990 and this should be taken as date of purchase of the plot and accordingly indexed cost of the acquisition is to be calculated as per the provisions applicable thereto. But the learned CIT(A) has erroneously accepted the contention of the assessee that the said plot was handed over to the assessee in 1971 itself on payment of full amount of cost of the said plot. The assessee is not able to categorically prove before the AO that the said plot was purchased by the assessee in 1971 after paying full consideration thereof. Therefore, the AO was very much justified in coming to the conclusion that the said plot was purchased by the assessee only on 27th June, 1990 when the Patta relating to the plot was issued to the assessee. Accordingly, the AO was justified in taking the cost of acquisition as on 27th June, 1990 only. Disregarding this material evidence the learned CIT(A) has directed the AO to accept claim of the assessee. Therefore, the learned CIT(A)'s order is liable to be set aside by restoring the order of the AO by allowing the appeal of Department.;

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