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2023 (8) TMI 1277 - AT - Income TaxShort term capital gain or long term capital gain of capital assets - sale of building with land - denying indexed cost of acquisition and indexed cost of improvement claimed by the assessee - different treatment in the hands of co-owner of the property - HELD THAT:- We find valid point in the submission of assessee that once in the hands of one of the co-owner of the property the claim for long term capital gain has been accepted by the AO along with cost of acquisition and indexation thereon in our view claim has to be allowed in the hands of the assessee being the other co-owner. This view is supported by the decision in the case of Jaswant Rai [1996 (10) TMI 484 - PUNJAB AND HARYANA HIGH COURT] Also in the case of CIT vs. Smt. Laxmi B Menon [2003 (4) TMI 38 - KERALA HIGH COURT] agreeing with the judgments of Vimal Chand Golecha [1992 (12) TMI 33 - RAJASTHAN HIGH COURT] and Dr. B.L. Ramachandran Rao [1997 (2) TMI 28 - MADRAS HIGH COURT] held that the land has to be assessed as long term capital asset and the building has to be assessed as a short term capital asset for the purpose of levy of capital gains tax. Following the above decisions similar view has been taken in the case of JCIT vs. Ashok Kumar Arora. Therefore, even if we accept the alternative claim of the assessee that capital gain has to be computed on land and building separately the position in the assessee’s case. Even if capital gain computed on the land and on the building separately as a long term capital asset and as a short term capital asset respectively still there is no liability arises on the assessee to pay additional tax on account of capital gains. We direct the AO to allow indexation on cost of acquisition and cost of improvement while computing the long term capital gain as was done in the case of the co-owner and the assessee’s brother Shri Harsh Bansal. Appeal of assessee allowed.
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