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7. Dissatisfied with the computation made by the Assessing Officer, it was contended by the assessee that on the death of her father, a family settlement was arrived between the parties. Her mother and sister have relinquished their shares in the year 1995. A family settlement was executed and this settlement was given effect in the municipal record. The alleged relinquishment deed considered by the Assessing Officer is nothing just to give a clear title to the vendee. For buttressing her contentions, MCD record was called for. Learned First Appellate Authority has directed the assessee to produce that record. After going through the record, Learned CIT(Appeals) arrived at a conclusion that mutation order was passed by the MCD on 30.3.1995 whereby the property has been mutated in favour of the assessee and her brother Shri Rattan Mehta. The other two legal heirs i.e. Mrs. Anju Mehta and Priya Vig had relinquished their shares in favour of the assessee and her brother. This fact has specifically been recorded. On the basis of this document, Learned CIT(Appeals) has directed the Assessing Officer to compute long term capital gain only on transfer of this capital assets.

8. With the assistance of learned DR, we have gone through the record carefully. Learned DR has submitted that Learned CIT(Appeals) has not given an opportunity to the Assessing Officer to rebut the evidence submitted by the assessee and, therefore, violation to sub-rule(3) of Rule 46A has been committed. We have confronted the learned DR to show that reliance put by the Learned CIT(Appeals) on the mutation order available on record of municipality which is maintained in the ordinary course by the public servant in performance of their statutory duty under the Land Revenue Act is factually incorrect. He was unable to controvert the findings of the Learned CIT(Appeals). On perusal of the assessment order, we find that the Assessing Officer did not consider this aspect rather he harped upon the alleged relinquishment deed. He has not discussed the issue in detail. Learned CIT(Appeals) has directed the party to produce the municipal record. This power has been exercised under sub-rule(4) of Rule 46A of the Income-tax Rule, 1962. In the ground of appeal, revenue has pleaded that Learned CIT(Appeals) has violated the conditions enumerated in sub-rule(3) of Rule 46A. Sub-rule (3) contemplates that Learned First Appellate Authority shall not take into account any evidence produced under sub- rule(i), unless the Assessing Officer has been allowed a reasonable opportunity to examine the evidence or documents or to cross examine the witnesses produced by the assessee, or to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant i.e. assessee. This rule does not apply to the evidence called for by the Learned CIT(Appeals) by exercising powers under sub-rule(4). Under this sub-rule, in a way, Learned CIT(Appeals) has exercised the powers of an Assessing Officer. He can direct any party to produce any evidence which can enable him to dispose of the appeal. Though there is no specific mention in the order of the Learned CIT(Appeals) that he is exercising powers under rule (4) but from reading of paragraph 5, it is impliedly discernible that assessee was asked to file the mutation order passed by the MCD, in respect of the property, in order to find out if the contention raised by the assessee in this regard was correct. This observation specifically makes it clear that it is the Learned First Appellate Authority in order to dispose of the appeal in accordance with law directed the party to produce mutation. Thus, there is no violation of rules. The relinquishment deed referred by the Assessing Officer executed by the mother and sister of the assessee in the month of October 2006 could be constituted for passing a better title to the vendee. It must have been insisted upon by the vendee in order to avoid any future litigation, otherwise from all practical purposes the assessee and her brother were made absolute owner of the property by way of a family settlement which has been given effect in the mutation order on 30.5.1995. Learned DR did not point out that this finding of the Learned CIT(Appeals) is factually correct. Taking into consideration these aspects, we do not find any merit in the appeal of the revenue. It is dismissed.