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2022 (7) TMI 1146 - AT - Income TaxLTCG OR STCG - assessee had entered into joint development agreement with the builder M/s.Siddharth Finance & Housing Ltd. on 19.08.2011 and admitted capital gain on transfer of 73% undivided share of the land in exchange of 27% built up area - HELD THAT:- In this case, there is no doubt with regard to fact that for the impugned assessment year only a sum of Rs.60,17,104/- is received by the assessee from sale of flats. Therefore, we are of the considered view that the Assessing Officer ought to have taxed consideration received during the assessment year 2015-16 only instead of taxing entire consideration received by the assessee, including consideration received for earlier financial years. Therefore, we are of the considered view that the Assessing Officer as well as learned CIT(A) were erred in taxing total consideration received by the assessee amounting to Rs.4,89,35,461/- for the assessment year 2015-16 on the basis of admission of the assessee. Hence, we direct the Assessing Officer to consider amount received for the assessment year 2015-16 alone and compute capital gain from transfer and determine whether it is short term or long term depending upon period of holding of asset by the assessee. Computation of capital gain on sale of shares of M/s.Akshaya JMB Properties Pvt.Ltd - assessee has sold 41,325 shares for consideration of Rs.4,46,69,825/-. - capital gain on sale of shares - HELD THAT:- Evidences placed by the assessee clearly shows that the assessee has transferred 41,325 equity shares on three dates to different persons and different rates and also received consideration through cheque. The evidences filed by the assessee further strengthened fact that entire consideration has been received through cheque and purchasers have confirmed transactions. The parties have entered into MoU to set out terms & conditions of sale of shares, but nowhere specified manner in which share price is to be determined. Therefore, we are of the considered view that the Assessing Officer has completely erred in replacing full value of consideration of Rs.13,63,10,512/- as against actual consideration received by the assessee at Rs.4,46,69,825/- and computed long term capital gain and hence, we direct the Assessing Officer to adopt consideration as received by the assessee for transfer of 41,325 equity shares of M/s.Akshaya JMB Properties Pvt.Ltd. for consideration of Rs.,4,46,69,825/- and compute long term capital gain in accordance with law. Cost of acquisition of shares of M/s.Akshaya JMB Properties - According to the assessee, actual cost of equity shares acquired by the assessee works out to Rs.53.87/- per share, whereas the Assessing Officer has adopted face value of equity shares @ Rs.10/- per share - HELD THAT:- The matter needs further examination from the Assessing Officer. Hence, we set aside the issue to file of the Assessing Officer and direct the A.O to reconsider the issue after considering relevant materials and decide correct amount of cost of acquisition of shares sold by the assessee. Addition u/s.56(2)(vii)(b)(ii) - AO has made addition towards difference in sale consideration for transfer of UDS in 11 flats devolved to the share of assessee as per MOU and observed that there is difference between sale price and market value of flats - HELD THAT:- We are of the considered view that issue of application of section 56(2)(vii)(b)(ii) of the Act, needs to go back to the file of the Assessing Officer to give one more opportunity of hearing to the assessee to ascertain correct facts with regard to market value of flats sold by the assessee and sale consideration received for transfer of property and thus, we set aside issue to the file of the Assessing Officer and direct the Assessing Officer to re-examine claim of the assessee in accordance with law. Addition u/s.50C - Addition made towards UDS involved in flats sold by the assessee - as per AO the assessee has registered 440 sq.ft of UDS for consideration of Rs.3,30,000/-, whereas guideline value of 440 sq.ft was at Rs.6,60,000/-.- HELD THAT:- Assessee pleaded for one more opportunity of being heard before the Assessing Officer to justify her case with reference to guideline value of the property and consideration for transfer of UDS. Hence, we set aside the issue to the file of the Assessing Officer and direct the Assessing Officer to reconsider the issue in accordance with law. Disallowance of exemption claimed u/s.54 & 54F - AO has disallowed exemption claimed u/s.54 on the ground that the assessee does not qualify for exemption u/s.54 however, allowed deduction for only one flat - HELD THAT:- As assessee pleaded for one more opportunity of being heard before the Assessing Officer to justify her case to verify eligibility of the assessee for claim of exemption u/s.54 & 54F. Therefore, we are of the considered view that the issue needs to go back to the file of the Assessing Officer for further examination of claim of the assessee. Hence, we set aside the issue to file of the Assessing Officer and direct the A.O. to reexamine claim of the assessee in accordance with law and decide the issue.
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