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2021 (4) TMI 209 - ITAT SURATReopening of assessment u/s 147 - undisclosed capital gain - AIR information that assessee has sold a piece of land and the income is chargeable to the extent of capital gain has escaped from assessment - sale of said land assessee along with other co-owners received consideration - as per purchase deed, share of both the co-owners was 50% but in the transfer deed/sale deed assessee has shown consideration of 25% along with other co-owner - The assessee calculated capital gain on 1/4th of consideration - HELD THAT:- CIT(A) confirmed the action of AO by taking view that when no specific share was mentioned in the purchase deed, the share of co-owners are equal. On the death of one of the co-owners, three legal heirs became owners of the property along with surviving co-owner with their cumulative share which cannot be more than 50%. CIT(A) further held that the total income as defined in section 2(45) of the Act is to be computed as per provision of the Act. The income is taxable in the hand of the person to whom it belongs. A literal interpretation of the provisions leads to the conclusion that a right person is liable to pay tax on his income and no option is available to tax income in the hands of person other than one in whose hands it is taxable. There is no ambiguity in sect ion 2(45) of the Act that only a right person is liable to pay tax on his income and no option is available to tax income in the hand of person other than whose hands it is taxable. The Income Tax is leviable only on the real income and not on any hypothetical or on presuming income. The appellant before the Lower Authorities has clearly by placing documentary evidence in the form of sale deed, copy of sale consideration and by confirmation by co-owner has proved that assessee has received only 25% of the sale consideration. In our view, the AO as well as the ld. CIT(A) wrongly presumed that in absence of the specific share in the purchase deed the assessee was having 50% share. Income Tax is leviable only on the real income which the assessee has proved beyond doubt that assessee has received only 25% of the sale consideration, thus, the grounds of appeal raised by assessee are allowed.
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