G.C. Gupta, J. - (1.) The assessee has come up in appeal u/s. 260A of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') against an order dated 9th December, 2003 passed by the Income Tax Appellate Tribunal (hereinafter referred to as 'the tribunal') 'E' Bench Kolkata in ITA No. 461 (Kol.) of 2002 relating to the assessment year 1997 -98. By an order dated 25th November, 2004 the appeal was admitted on the following substantial questions of law: - - "I) When the learned Members of the Tribunal themselves recorded that they refrain from commenting on the direction of the learned CIT(Appeals) on the issue of admissibility of deduction under Sec. 54 of the I.T. Act which the Revenue has not agitated before the Tribunal was justified in 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 Sec. 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 based on irrelevant materials and/or evidence and/or by failing to take into consideration relevant materials and/or evidence and/or law and as such the same are perverse - After hearing the learned advocates we have formulated the following substantial question of law under the proviso to Sub -section (4) of Sec. 260A of the Act for the purpose of determining the real question in controversy between the parties. IV) Whether 50% of the sale consideration received by the assessee with respect to the matrimonial house situated at 25, Mandeville Gardens, Calcutta was taxable in the hands of the assessee despite the fact that the Tribunal arrived at a finding that the said amount was paid on account of alimony?
(2.) Briefly stated the facts and circumstances of the instant case are as follows: - - Shrimati Roma Sengupta the assessee herein married Mr. D. Chowdhury in the year 1966. The marriage was dissolved on 12th January 1994 by a decree of divorce passed in Mat Suit Number 626 of 1993. The assessee filed her return of income for the assessment year 1997 -98 disclosing an income of Rs. 44,870/ - and long -term capital gain consequent to sale of 50% of her share in the matrimonial house at 25, Mandeville Gardens, Calcutta sold at Rs. 22,81,500/ - and sought to deduct 50% of the cost of acquisition amounting to Rs. 5,18,002/ -. The assessee claimed exemption u/s. 54 of the Act with respect to the aforesaid long -term capital gain. The assessee further claimed deduction of brokerage amounting to Rs. 50,000/ - from the amount of capital gain. The return was processed u/s. 143(1) later on the assessee received a notice u/s. 148 alleging that income had escaped assessment.
(3.) In the course of the reassessment proceedings the assessee was asked to furnish inter alia evidence against the cost of acquisition of the matrimonial house. The assessee contended that the matrimonial house at 25, Mandeville Gardens was acquired using the sale proceeds of a flat situated at 9, Mandeville Gardens, Calcutta and that she was a co -owner of the said matrimonial house, having 50% share therein.;