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2022 (6) TMI 1157 - AT - Income TaxRevision u/s 263 - Admissibility of deduction u/s 54 and 54F - as submitted claim of deduction u/s 54 and 54F has been accepted in the case of the assessee’s brother, who was owning 50% share in the above property - HELD THAT:- It is seen from the paper book that the assessee has made a detailed reply to the show cause notice by producing relevant document viz. sale deed; property tax receipts, copy of Income-Tax Returns for earlier years showing rental income from the above property; copies of bank accounts and copy of the Will executed by the assessee’s father. Without appreciating the above documents, the ld.CIT has come to a conclusion that Plot No.34 does not mention anywhere that there was a residential building sold through the sale deed. Further, CIT absolutely erred in stating that the assessee has made 100% claim of deduction whereas she has only 50% as co-owners in the above properties and from going through the Sale Deeds both the lands are vacant lands. Thus, the above finding of the ld.CIT is not correct from the perusal of the above record. The ld.CIT has not given due credence to the reply filed by the assessee and passed this revision order. However, it can be seen from the co-owner, assessee’s brother Shri Vijay Patel’s case that similar deduction was being allowed by the ITO (International Taxation), Baroda after detailed inquiry, wherein the assessee’s brother has also given detailed reply dated 12.12.2011. After considering the above reply, the ITO(International taxation) has accepted the returned income and allowed the deduction by passing order under section 143(3) of the Act dated 29.12.2011 and that assessment order was not subject matter of revision or reopening by the Department, but in the case of the assessee being co-owner of the same properties, a show cause notice under section 263 of the Act dated 23.8.2013 was issued and explanation was called for from the assessee. Here it is to be noted that ld.CIT has not verified, what happened to other co-owner viz. assessee’s brother Shri Vijay Patel case which assessment has attained finality. Thus different treatments cannot be given on the same set of facts in respect of different co-owners of a common piece of land which are subjected to capital gains. If such action on the part of Revision Authority is approved, it would militate against the principle of equality of law as enshrined in the Article 14 of the Constitution. Further, it is seen that the ld.CIT has not taken any steps for reopening the case of other co-owner viz. Shri Vijay Patel and thereby accepted similar long term capital gain and claim of deduction under section 54 and 54F of the Act on the said transaction. Therefore, in our considered view, the assessee cannot be treated differently for similar transaction. This ground of appeal of the assessee is allowed on this preliminary aspect, and Revision Order under section 263 of the Act is hereby quashed. - Decided in favour of assessee.
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