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2018 (3) TMI 1823 - AT - Income TaxShort term capital gains - Transaction belong to the appellant individually OR transactions were required to be considered in the hands of AOP in which the appellant was a member with 1/7thshare - HELD THAT:- As seen that in para 6.1 of the assessment order for Assessment Year 2010-11 as per the ANNEXURE-1, it is noted by the AO that enquiries were conducted at the office of the sub-registrar, Kengeri and also at Banashankari to find out about the activities of the assessee in connection with investments made in immovable properties along with six others and the details of those properties are also mentioned in the same Para in which assessee’s share is worked out at 1/7th of the total value of such land. Hence this is apparent that the assessee is co-owner of these lands. As in the case of Smt. M. Lakshmi Vs. ITO [2017 (5) TMI 1706 - ITAT BANGALORE] held by the Tribunal in these two cases that the AO has not taken into account the expenditure incurred in respect of carving out 90 plots out of the total land purchased. It is also held by the Tribunal that some expenditure is bound to be incurred for this purpose. But the AO has not taken into consideration those expenses. Therefore, the matter is restored back to the file of AO for fresh decision with the direction that the claim of the expenditure incurred in levelling of the plot or otherwise relevant should be re-examined and the matter may be decided afresh. In the present case which is of a co-owner, respectfully follow this Tribunal order in the case of co-owners and set aside the order of CIT(A) in the present case also in all the three years and restore the matter back to the file of AO for fresh decision with the same directions as were given by the Tribunal in para 7 of the Tribunal order which is reproduced above.The AO should pass necessary order as per law as per above discussion after providing adequate opportunity of being heard to the assessee.
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