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2016 (4) TMI 355 - AT - Income TaxRectification of mistake - offering for tax the capital gain on sale of land in the current year which related the subsequent year i.e AY 2009-10 - Held that:- The income offered by the assessee in the current year i.e AY 2008-09 under the head capital gain be rectified as the said income accrued and was assessed in the AY 2009-10. The both the authorities below had failed to appreciate that if the same income was assessed to tax in two assessment years it would be bad in law and also would be a mistake apparent liable for rectification u/s 154 of the Act regardless of the fact that it might had happened be due to assessee’s mistake. Accordingly we delete LTCG of ₹ 3,02,93,202/- from the current year ₹ 3,02,93,202/- as apparent mistake from records and direct the AO accordingly. Addition under the head “income from other sources” - Held that:- We find that the assessee during the course of assessment proceedings could not file the sale deed in respect of plot at survey no.132 on Mumbai-Pune Highway which was duly shown by assessee in the revised return of income filed u/s 139(5) of the Act. The details of sale considerations from both the plots at survey no.68 and 132 were shown while calculating the capital loss in the revised return of income. The ld. CIT(A) allowed the appeal of the assessee subject to quantification by holding that the same would be considered under the head capital gains and accordingly deleted the addition of ₹ 1,20,00,000/-. However, we find merit in the ground as raised by the revenue to set aside the proceedings to the file of the AO in view of the violation of Rule 46A of the Rules. In our view, the ld.CIT(A) has rightly deleted the addition under the head “income from others sources” and therefore the order of ld. CIT(A) does not require any interference at our end. However, in order to meet principle of natural justice we are of the opinion that the matter be restored to the file of the AO for a limited purpose of examining the sale deed and delete the addition accordingly. Addition under the head income from house property by estimating the rent of property - Held that;- We find that the rent from the rental properties located in Khar area have been shown at ₹ 15,808/- and water charges ₹ 4,94,282/- and property tax ₹ 54,532/- were claimed in respect of the said property. The AO further observed that the five flats were occupied by the partner and their family members. The AO estimated the rent in respect of rented property at ₹ 30 to 50 sq. ft. and thus arrived at notional income of ₹ 28,23,840/- which was increased by water charges of ₹ 4,94,982/- and from the total rental charges allowed standard deduction of 30% u/s 24 of the Act and worked out the total income from house property at ₹ 23.,21,775/- which was confirmed by the ld.CIT(A) on the ground that low rent was charged by the assessee from the partners and his family members. As it is clear from the above the AO has failed to prove/bring on record by any cogent evidence that the rent of comparable properties in the vicinity where the assessee’s property was located and we find that the estimation of rent by AO is a purely guess work and based on estimation, conjecture and surmises, which in our opinion, cannot be sustained. We, therefore, delete the addition Estimation of LTCG - Held that:- AO and CIT(A) had taken different method of valuation to in order to ascertain the FMV on 1.4.1981. It was also pointed out that there was a building in the plots sold. Under the present circumstances and facts, we are of the view that the ends of justice would be met if the assessee is supplied the copy of final valuation report by the valuation officer and after allowing the opportunity to the assessee the matter is decided afresh and de nova as per law. We therefore set aside the matter to the file of AO with the direction to supply a copy of the valuation report to the assessee and after allowing reasonable opportunity decide the matter afresh as per law.
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