Shri.n.rajarajanpan: Aqfpr 4579Q v. The Assistant Commissioner Of Income Tax,Corporate Circle - Xiv,Chennai 600 034

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.9.2020 CORAM THE HON'BLE DR.JUSTICE VINEET KOTHARIANDTHE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY Tax Case (Appeal) No.464 of 2017 Shri.N.RajarajanPAN: AQFPR 4579Q Appellant Vs. The Assistant Commissioner of Income Tax,Corporate Circle - XIV,Chennai 600 034. Respondent Tax Case (Appeal) filed under Section 260A of the Income TaxAct, 1961 against the order of the Income Tax AppellateTribunal, 'A' Bench, Chennai, dated 26.10.2016 made in ITANo.40/Mds/2016 and against the order of the Commissioner ofIncome Tax(Appeals)-7, Chennai-34 made in ITA No.10(CTT)A-72013-2014 dated 04.12.2015, and against the order of theAssistant Commissioner of Income Tax, Business Circle-XIV,Chennai-34, made in PAN No. , order dated 05.03.2013 inthe Assessment year 2010-2011. For Appellant : Mr.Kaushik for Mr.S.SridharFor Respondent : Mr.Karthik Ranganathan Senior Standing Counsel JUDGMENT (Delivered by DR.VINEET KOTHARI,J) The Assessee N.Rajarajan has filed this present Appealunder Section 260A of the Income Tax Act raising the followingpurported substantial questions of law arising from the orderpassed by the Income Tax Appellate Tribunal on dated 26.10.2016for the Assessment Year 2010-2011 dismissing the Appeal of theAssessee on two grounds:- "(i) Whether the Appellate Tribunal is correct insustaining the average value adopted on theconsideration of the SRO’s guideline value and theChartered Engineer’s valuation report to quantifythe cost of acquisition being the fair market value https://hcservices.ecourts.gov.in/hcservices/ as on 01.04.1981 in the recomputation of long termcapital gains despite the settled position on thesanctity of SRO’s guideline value for theunderstanding/for the determination of the fairmarket value? (ii) Whether the Appellate Tribunal is correct inlaw in sustaining the disallowance of the paymentsmade to clear the loan liability as part of the costof acquisition in the recomputation of long termcapital gains while overlooking the pre-existingcharge of the bank liability on the capitalasset/property under consideration when it gotvested by virtue of settlement deed dated 14.7.2004?(iii) Whether the Appellate Tribunal is correct inlaw in sustaining the disallowance of the paymentsmade to clear the loan liability as part of theexpenses incurred in connection with the transfer asprescribed in section 48 of the Act in therecomputation of long term capital gains which wasclaimed as alternative stand by the Appellant? (iv) Whether the Appellate Tribunal is correct insustaining the recomputation of long term capitalgains while overlooking the loss suffered consequentto the guarantee/mortgage of the property/capitalasset in relation to the loan transaction with thebank entered into by the company which legallymandated for set off as well as not disputed theloss suffered in the capital field?" 2. The relevant findings of the learned Tribunal are quotedbelow for ready reference:- "6.1 On appeal, the Ld.CIT(A) upheld the order ofId. Assessing officer with the following reasons. (1) The loan was not taken by Smt.Susila Ammalassessee’s mother. As mentioned earlier, the loanwas taken for business purposes by the aforesaidfirm. As one of the partners, Smt.Susila Ammal hadoffered her asset as collateral security. (2) The loan was finally settled by M/s. S.Albert &Co. Private Limited, the Company that subsumed theerstwhile firm, as per the Memo of Compromisebetween SBI and the company. 2. The relevant findings of the learned Tribunal are quotedbelow for ready reference:- "6.1 On appeal, the Ld.CIT(A) upheld the order ofId. Assessing officer with the following reasons. (1) The loan was not taken by Smt.Susila Ammalassessee’s mother. As mentioned earlier, the loanwas taken for business purposes by the aforesaidfirm. As one of the partners, Smt.Susila Ammal hadoffered her asset as collateral security. (2) The loan was finally settled by M/s. S.Albert &Co. Private Limited, the Company that subsumed theerstwhile firm, as per the Memo of Compromisebetween SBI and the company. (3) It is not the case that the bankers had takenover the possession of the impugned property, andthat the company was forced to sell the property andliquidate the loan as per the Memo of compromise.The Bankers had given a possession notice on04.12.2005, following which the Company got its acttogether, and entered into the Memo of Compromise.It is seen from the schedule of payments furnishedby the appellant that the first payment for liquidation loan was made in April, 2007, and thelast on February 2010. (4) The appellant has failed to controvert thefinding in the assessment order that the salesconsideration was not utilized to clear the loanliability. (5) In any case, appellant’s grandmother was just aguarantor. The primary responsibility for the loanstands on the borrower, i.e. the Company that hadtaken over the firm. The charge of the bank was onthe company, and not appellant's grandmother. Thecompany was able to discharge the loan throughnegotiation and structuring without alienating theimpugned property which was a collateral. Once theloan was restructured as per the Memo of compromise,the same was honored by the company as per theschedule of payment filed. It is of crucialimportance to note that the entity which took theloan, liquidated it without disturbing the natureand possession of the impugned property that was acollateral. When the property in question is sold ata later date how does the interest paid by anotherentity for its own loan be transferred as theliability of assessee’s grand mother?Aggrieved, the assessee is in appeal before us. 7. We have heard both the parties and perused thematerial on record. The ld. A.R relied on thedecision of Co-ordinate Bench of Chennai Tribunal inthe case of M/s.Sivanandha Mills Ltd., in ITANos.1216 & 2016/Mds/2013 to the proposition that thepayment of loan liability to the State 'Bank ofIndia, settled through the Debt Recovery Tribunalis having a direct nexus with transfer of capitalassets and it is to be deducted from the saleconsideration of capital assets and accordinglycapital gains to be computed. In our opinion, thedecision cannot be applied to the facts of thepresent case. In this case, the property was givenas a collateral security for the loan availed byother than the assessee, which is a M/s.S.Albert &(Co., as pointed out by the AO in his assessmentorder and neither the assessee nor the assessee'sgrandmother who settled the property in favour ofthe assessee, is borrower nor a party to the suit,the mortgage debt cannot be considered as a cost ofacquisition of property so as to give deductionwhile computing the capital gains from the transferof the property. If the consideration of sale ofproperty apportioned towards the outstanding debt inbank, the assessee is having very well right to claim from the borrower of the bank whose debt wassettled. In view of this we do not find any anyinfirmity in the order of the Ld. CIT(A). The sameis confirmed." claim from the borrower of the bank whose debt wassettled. In view of this we do not find any anyinfirmity in the order of the Ld. CIT(A). The sameis confirmed." 3. On the issue of average of valuation governed byRegistered Valuer and Sub-Registrar Valuation for determiningthe Fair Market Value (FMV) of the property as on 1.4.1981, thelearned Tribunal followed its earlier view in the case ofM/s.Kutty Flush Doors in ITA No.2017/Mds/2014 dated 29.10.2014and therefore, upheld the order of the learned Commissioner ofIncome Tax (Appeals) vide para 4 of its order, which is alsoquoted hereunder for ready reference:- "4. We have heard both the parties and perusedthe material on record. In this case, Ld. CIT (A) had considered the average of registeredvaluer and Sub-Registrar valuation fordetermining the FMV of the property as on 1.4.1981. This decision of Ld. CIT(A) is basedon the order of the Tribunal, Chennai Bench inthe case of M/s.Kutty Flush Doors in ITA No.2017/Mds/2014 dated 29.10.2014. Being so, we do not find any infirmity in the order of Ld.CIT(A). The same is confirmed." 4. On the second issue of average value, question No.1 issought to be raised before us in the present Appeal. However,the learned Senior Standing Counsel for the Revenue pointed outthat this was on the own admission of the Assessee before thelearned Tribunal as quoted in para 4.3(b) of the order passed bythe learned Commissioner of Income Tax (Appeals), which is alsoquoted below for ready reference:- "The appellant has taken an alternate ground, thatthe Assessing Officer may be directed to adopt theaverage of the value adopted in the computation ofLong Term Capital Gains and the value adopted inthe recomputation done in the assessment. Insupport of the alternate grounds, the appellant hascited the judgement of Hon'ble Madras High Court inthe case of CIT v. J.Chelladurai, reported on 204Taxmann 251, and the decision of ld. ITAT, Chennai'C' Bench in the case of DCIT vs. M/s.Kutty FlushDoors & Furniture Company Private Limited (ITANo.2017/Md/2014 dated 29.10.2014)." 5. In view of the submission of the Assessee himself inthis regard, we cannot permit the said question of law to beraised before us under Section 260A of the Act again andtherefore, question No.1 is answered against the Assessee and infavour of the Revenue. 6. However, on the issue of computation of Long TermCapital Gains in the hands of the Assessee, the facts in brief https://hcservices.ecourts.gov.in/hcservices/ which has led to filing of the present Appeal as discussed bythe learned Tribunal are thus:-The Assessee received 3 acres of land under a SettlementDeed dated 14.7.2004 out of the total land of 11.53 acresbelonging to various family members out of which the Assessee'sGrandmother Mrs.Susila Ammal settled 3 acres of land in favourof the Assessee Mr.N.Rajarajan. The said land entirely seems tohave been mortgaged by the various joint owners of the propertywith State Bank of India and upon defaults in repayment, in theproceedings before the DRT by the Company M/s.Albert and Co.Ltd., which took over the Partnership Firm of M/s.Albert &Company, in which the said Settler Mrs.Susila Ammal was aPartner, settled the land, in an One Time Settlement (OTS) inO.A.No.2387 of 2001 before the DRT to square up the saidsettlement of 9.60 Crores in favour of M/s.ASREC India Limited,the Assignee of the debt by the State Bank of India, the land inquestion was required to be sold and payment made to the saidASREC India Limited on the following dates:- 7. The sale deed in question has been produced before uswhich is dated 17.2.2010 and it appears to be made in favour ofone M/s.Martin Property Develoeprs (Pvt) Ltd. and the variousparts of the land including the land belonging to the SettlorMrs.Susila Ammal, which was only a collateral security for thesaid debt of the Company, was also part of the sale of land forsettlement of the dues of the State Bank of India. The saidland in question is shown at Serial No.32 of the mortgaged assets with the State Bank of India for which Sale Notice dated3.12.2005 and Possession Notice dated 4.12.2005 were issuedunder SARFAESI Act. The Assessee, who got the land in questionunder the Settlement Deed dated 14.7.2004 has claimed before theAuthorities below the apportionment of the settlement of dues ascost of improvement under Section 48 of the Act in proportion ofthe sale of various parts of the land to the tune ofRs.1,06,76,905/-vide Table given at page 9 of the paper bookwhich is also quoted below for ready reference:- ALLOCATION OF LOAN SETTLEMENT TO SBI OF 9 CR. 60 LAKHS BY SALE OF LAND AT TUTICORIN The said sum of Rs.1,06,76,905/- is computed as under:-Proportionate to selling price of 3 Acres:2,18,52,839--------------- x 9,60,00,000 = Rs.1,06,76,905/- 19,64,86,941 8. Thus, the Assesee claimed that a sum of Rs.1,06,76,905/-was part of his contribution of the Settlement amount ofRs.9,60,00,000/- being the amount agreed in OTS to clear up thedues SBI, through its Asset Reconstruction Company, ASREC (India)Ltd. and therefore, the said amount forms part of 'cost ofacquisition or cost of improvement' under Section 48 read withSection 49 of the Income Tax Act and the same is liable to bededucted from the sale value of land to compute capital gains taxliability. However, the same was disallowed by the Authoritiesbelow for the reasons narrated in the order of the learnedTribunal. 9. During the course of hearing of the present appeal, wedirected the Assessee to produce the said Documents for ourperusal so that prima facie, we can have a look at the facts ofthe case, as they emerged for the Settlement of the property infavour of the Assessee and Sale thereof to clear the cloud overthe title of the Assessee and to ascertain whether the samecould form part of the cost of acquisition or cost ofimprovement under Section 49 of the Act or not. The Assessee,accordingly, has produced these documents. 10. We may add here that though the High Court, in theprocess of hearing the Appeals under Section 260A of the IncomeTax Act, should hear only on the substantial question of lawand are bound by the findings of facts returned by the IncomeTax Appellate Tribunal and unless such findings of facts arefound to be perverse, they are binding on the High Courts andHigh Court is not expected to go into the veracity of thefinding of facts returned by the Tribunal. But on a reading ofthe documents adduced before us, prima facie, we found that thecontention raised before the learned Tribunal and before us isabout the contribution of the Assessee for the clearance of themortgage charge was not being considered as the cost ofacquisition or improvement and without going into such relevantfactual things, the Tribunal, which it was duty bound to do soas a final fact finding body, but it has disallowed the claim ofthe Assessee even though a ground in that regard was raisedbefore it. In our opinion, the order of the learned Tribunal istherefore rendered perverse and the learned Tribunal is requiredto re-examine the facts on the basis of the legal position. 11. As far as the legal position in this regard isconcerned, the issue seems to have been settled by the Hon'beSupreme Court in the judgment in the case of R.M.Arunachalam,etc. v. CIT (227 ITR 222). 11. As far as the legal position in this regard isconcerned, the issue seems to have been settled by the Hon'beSupreme Court in the judgment in the case of R.M.Arunachalam,etc. v. CIT (227 ITR 222). 12. We may add here that the said case arose before theHon'ble Supreme Court to consider the question whether theestate duty paid by the legal heirs who inherit the property inrespect of the inherited portion, would form part of cost of acquisition or not. The Hon'ble Supreme Court held that itwould not form part of cost of acquisition. But, whilediscussing the legal position in this regard and referring tothe decisions of various other High Courts cited before theHon'ble Supreme Court, the Hon'ble Supreme Court held as under:- "13. The submission regarding diversion in relationto the amount paid by way of estate duty has beenraised by the assessee for the first time before thisCourt. Before the Tribunal as well as before the HighCourt the contentions urged on behalf of the assesseewere confined to a claim for deduction by way of costof acquisition or cost of improvement under S.48 ofthe Act. The questions referred to by the Tribunal tothe High Court have to be considered in the light ofthe said submissions. The submission regardingdiversion involves the question whether apart fromthe deductions permissible under the expressprovision contained in S.48 of the Act, deduction onaccount of diversion is permissible in the matter ofcomputation of capital gains under the Act. This isan entirely independent issue which has not beenconsidered by the Tribunal or the High Court. Itcannot be permitted to be raised for the first timeat this stage. We, therefore, do not propose to gointo this question. 14. While we are affirming the impugned judgment ofthe High Court, we are unable to endorse the view ofthe Kerala High Court in Ambat Echukutty Menon vs.CIT (supra) to which reference has been made by theHigh Court in the impugned judgment. In that case,the assessee, as one of the heirs, had inheritedproperty from the previous owner who had mortgagedthe same during his life-time and after his death theheirs, including the assessee, had discharged themortgage created by the deceased. The said propertywas subsequently acquired under the Land AcquisitionAct and for the purpose of capital gains the assesseesought deduction of the amount spent to clear themortgage. The High Court held that the capital assethad become the property of the assessee by successionor inheritance on the death of the previous ownerunder S.49(1) of the Act and the cost of acquisitionof the asset is to be deemed to be the cost for whichthe previous owner acquired it, as increased by thecost of any improvement of the assets incurred orborne either by the previous owner or by theassessee. According to the High Court, having regardto the definition of the expression 'cost ofimprovement' contained in S.55(1)(b) of the Act, in order to entitle the assessee to claim a deduction inrespect of the cost of any improvement, theexpenditure should have been incurred in making anyadditions or alterations to the capital asset thatwas originally acquired by the previous owner and ifthe previous owner had mortgaged the property and theassessee and his co-owners cleared off the mortgageso created, it could not be said that they incurredany expenditure by way of effecting any improvementto the capital asset that was originally purchased bythe previous owner. This decision has been followedin subsequent decisions of the High Court in SalayMohamad Ibrahim Sait vs. ITO & Anr. (1994) 210 ITR700 (Ker) and K. V. Idiculla vs. CIT (1995) 214 ITR386 (Ker). A contrary view has been taken by theGujarat High Court in CIT vs. Daksha Ramanlal (1992)197 ITR 123 (Guj). In taking the view that in a casewhere the property has been mortgaged by the previousowner during his life-time and the assessee, afterinheriting the same, has discharged the mortgagedebt, the amount paid by him for the purpose ofclearing off the mortgage is not deductible for thepurpose of computation of capital gains, the KeralaHigh Court has failed to note that in a mortgagethere is transfer of an interest in the property bythe mortgagor in favour of mortgagee and where theprevious owner has mortgaged the property during hislife-time, which is subsisting at the time of hisdeath, then after his death his heir only inheritsthe mortgagors interest in the property. Bydischarging the mortgage debt his heir who hasinherited the property acquires the interest of themortgagee in the property. As a result of suchpayment made for the purpose of clearing off themortgage the interest of the mortgagee in theproperty has been acquired by the heir. The saidpayment has, therefore, to be regarded as cost ofacquisition under S.48 r/w S.55(2) of the Act. Theposition is, however, different where the mortgage iscreated by the owner after he has acquired theproperty. The clearing off the mortgage debt by himprior to transfer of the property would not entitlehim to claim deduction under S.48 of the Act becausein such a case he did not acquire any interest in theproperty subsequent to his acquiring the same. InCIT vs. Daksha Ramanlal (supra) the Gujarat HighCourt has rightly held that the payment made by aperson for the purpose of clearing off the mortgagecreated by the previous owner is to be treated ascost of acquisition of the interest of the mortgagee in the property and is deductible under S.48 of theAct." 13. While overruling the Judgment of the Kerala High Courtin the case of Ambat Echukutty Menon v. CIT, the Hon'ble SupremeCourt has clearly held that in the later part of the aforequoted part that that by discharging the mortgage debt, hisheir, who has inherited the property with the charge ofmortgage, such legal heir acquires the interest of the mortgageein the property and as a result of such payment made for thepurpose of clearing off the mortgage, the heir and the saidpayment, therefore, has to be regarded as cost of acquisitionunder Section 48 read with Section 55(2) of the Act. However,where the mortgage is created by the owner or heir himself afterhis acquiring the property, the payment to redeem the mortgagewill not be cost of acquisition or improvement under Section 48of the Act. 14. Therefore, the encumbrance by way of mortgage whetherby way of direct mortgage or as collateral security, as is thecase in hand and if that encumbrance has to be cleared off bythe legal heir or person in whose favour the property has beensettled like the Assessee before us, the amount paid by theAssessee to clear that encumbrance has to be treated as part ofcost of acquisition or cost of improvement under Section 48/49of the Act. 15. The said provisions are also quoted below for readyreference:- 14. Therefore, the encumbrance by way of mortgage whetherby way of direct mortgage or as collateral security, as is thecase in hand and if that encumbrance has to be cleared off bythe legal heir or person in whose favour the property has beensettled like the Assessee before us, the amount paid by theAssessee to clear that encumbrance has to be treated as part ofcost of acquisition or cost of improvement under Section 48/49of the Act. 15. The said provisions are also quoted below for readyreference:- ""Sec. 48. Mode of computation and deductions. -The income chargeable under the head "Capitalgains" shall be computed by deducting from the fullvalue of the consideration received or accruing asa result of the transfer of the capital asset thefollowing amounts, namely : (a) expenditure incurred wholly and exclusively inconnection with such transfer; (b) the cost of acquisition of the capital assetand the cost of any improvement thereto." Sec. 49 makes provision regarding the cost ofacquisition with reference to certain modes ofacquisition of the assets. Sub-s. (1) of S.49provided as under : "Sec. 49. Cost with reference to certain modes ofacquisition :- (1) Where the capital asset becamethe property of the assessee : (i) on any distribution of assets on the total orpartial partition of an HUF; (ii) under a gift or will; (iii) (a) by succession, inheritance or devolution,or (b) on any distribution of assets on thedissolution of a firm, BOI or other AOP, or; (c) on any distribution of assets on theliquidation of a company, or (d) under a transfer to a revocable or anirrevocable trust, or (e) under any such transfer as is referred to incl. (iv) or cl. (v) or cl. (vi) of s. 47 the cost of acquisition of the asset shall bedeemed to be the cost for which the previous ownerof the property acquired it, as increased by thecost of any improvement of the assets incurred orborne by the previous owner or the assessee, as thecase may be. Explanation. - In this sub-section the expression"previous owner of the property" in relation to anycapital asset owned by an assessee means the lastprevious owner of the capital asset who acquired itby a mode of acquisition other than that referredto in cl. (i) or cl. (ii) or cl. (iii) of this sub-section". The expressions "cost of improvement" and "cost ofacquisition" for the purpose of ss. 48, 49 and 50have been defined in S.55 of the Act. In cl. (b) ofsub-s. (1) of S.55 "cost of improvement" was thusdefined :"(b) "cost of improvement", in relation to acapital asset, - (i) where the capital asset became the property ofthe previous owner or the assessee before the 1stday of January, 1954, and the fair market value ofthe asset on that date is taken as the cost ofacquisition at the option of the assessee, meansall expenditure of a capital nature incurred inmaking any additions or alterations to the capitalasset on or after the said date by the previousowner or the assessee, and (ii) in any other case, means all expenditure of acapital nature incurred in making any additions oralterations to the capital asset by the assesseeafter it became his property, and, where thecapital asset became the property of the assessee by any of the modes specified in S.49, by theprevious owner, but does not include any expenditure which isdeductible in computing the income chargeable underthe head 'Interest on securities', 'Income fromhouse property', 'Profits and gains of business orprofession', or 'Income from other sources', andthe expression 'Improvement' shall be construedaccordingly." In sub-s. (2) of S.55 the expression 'cost ofacquisition' was defined in the following terms : "(2) For the purposes of ss.48 and 49, 'cost ofacquisition', in relation to a capital asset, - by any of the modes specified in S.49, by theprevious owner, but does not include any expenditure which isdeductible in computing the income chargeable underthe head 'Interest on securities', 'Income fromhouse property', 'Profits and gains of business orprofession', or 'Income from other sources', andthe expression 'Improvement' shall be construedaccordingly." In sub-s. (2) of S.55 the expression 'cost ofacquisition' was defined in the following terms : "(2) For the purposes of ss.48 and 49, 'cost ofacquisition', in relation to a capital asset, - (i) where the capital asset became the property ofthe assessee before the 1st day of January, 1954,means the cost of acquisition of the asset to theassessee or the fair market value of the asset onthe 1st day of January, 1954, at the option of theassessee; (ii) where the capital asset became the property ofthe assessee by any of the modes specified in sub-s.(1) of S.49, and the capital asset became theproperty of the previous owner before the 1st dayof January, 1954, means the cost of the capitalasset to the previous owner or the fair marketvalue of the asset on the 1st day of January, 1954at the option of the assessee."" 16. In view of the above, we do not consider it necessaryto go into other judgments cited before us as the position oflaw seems to be clear and the facts narrated above also primafacie indicate that the land of 3 acres in question, which wasin the form of collateral security with SBI, has been settled byMrs.Susila Ammal in favour of the Assessee and to clear off thatdebt, the sale of the land in question alongwith other parts ofthe land had to be undertaken in the settlement of dues tothe SBI under the OTS Settlement. 17. Therefore, while there is no doubt that the saidcontribution of the Assessee to the extent of the land settledin his favour would be part of cost of acquisition or cost ofimprovement of the asset acquired by him as per Section 48 andSection 55 of the Act, the computation of the same deserves tobe gone by the Tribunal, being a fact finding body, to find outwhether the said sum of Rs.1,06,76,905/- vide the Table quotedabove is correct amount or not and whether the advance of Rs.4Crores received from the Purchaser M/s.Martin Group on19.8.2009 vide Demand Draft payable to ASREC (India) Limited iscorrect fact or not. 18. Obviously, the High Court cannot be expected to do sucha computing exercise under Section 260-A of the Act. Therefore,a remand of the case to the Tribunal is necessary, since theseaspects of facts do not seem to have been properly placed beforethe Tribunal, as they are sought to be argued before us now withthe documents placed on record of the High Court under thedirections of the court. Therefore, we are of the opinion thata miscarriage of justice may happen, if all these facts areignored even at this stage. 19. It is needless to say that the Assessee ought to haveargued his case before the learned Tribunal on the relevantfacts and evidence as otherwise, the finding of facts renderedby the learned Tribunal will be binding on the High Court whiledisposing the Appeals under Section 260-A of the Act. But, evenon prima facie perusal of these facts before us, we are notinclined to ignore these facts which unfortunately, the Tribunalalso could not take into account for either they were notplaced before the learned Tribunal properly or even if they wereplaced before it, the learned Tribunal did not choose to go intoall those details in a more detailed manner. 20. Be that as it may, to avoid any miscarriage of justiceand to allow a fresh recomputation of "cost of acquisition" orcost of improvement properly under Section 48/49 and Section 55of the Act in the facts and circumstances of the case, wedispose of the present Appeal by setting aside the order of theIncome Tax Appellate Tribunal to that extent. 20. Be that as it may, to avoid any miscarriage of justiceand to allow a fresh recomputation of "cost of acquisition" orcost of improvement properly under Section 48/49 and Section 55of the Act in the facts and circumstances of the case, wedispose of the present Appeal by setting aside the order of theIncome Tax Appellate Tribunal to that extent. 21. Therefore, in respect of issue No.2 regardingcomputation of Capital Gain in the hands of the Assessee and tocompute the cost of acquisition properly in the light of thedecision of the Hon'ble Supreme Court cited supra, we remit thematter back to the learned Income Tax Appellate Tribunal todecide the Appeal of the Assessee on that ground once again. 22. In the circumstances, the questions with regard toCapital Gain Tax liability and computation of cost ofacquisition are answered in the aforesaid manner and thecomputation part is remitted back to the learned Tribunal asindicated above. The Appeal is, accordingly, disposed of. Noorder as to costs. Sd/- Assistant Registrar//True Copy// Sub Assistant Registrar To 1. The Registrar, The Income Tax Appellate Tribunal, 'A' Bench, Chennai The Income Tax Appellate Tribunal, 'A' Bench, Chennai 2. The Assistant Commissioner of Income Tax, Corporate Circle - XIV, Chennai 600 034. Corporate Circle - XIV, Chennai 600 034. 3. The Commissioner of Income Tax Appeals-7, Chennai-34. Chennai-34. 4. The Assistant Commissioner of Income Tax Business Circle-XIV, Chennai-34. Business Circle-XIV, Chennai-34. T.C.(A) No.464 of 2017 RV(CO)RV(05/11/2020)