TMI Blog2012 (11) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... given to this tribunal order in quantum proceedings, the resultant capital gain will not be in positive figure but it will be a long term capital loss only although the same may be at a lesser amount than declared by the assessee. But still since no penalty is imposed by the A.O. in respect of capital loss declared by the assessee the present penalty cannot survive because penalty has been imposed by the A.O. on the positive capital gain - in favour of assessee. - I.T.A.No. 1075 & 1423 /Ahd/2010 - - - Dated:- 5-10-2012 - SHRI A. K. GARODIA, AND SHRI KUL BHARAT, JJ. Appellant by: Shri S N Soparkar, Sr. Adv. Respondent by: Shri T. Shankar, Sr. DR O R D E R PER SHRI A. K. GARODIA, AM:- These are cross appeals of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- claimed by the assessee and claim of old liabilities amounting to Rs.3,15,214/-. However, in respect of adoption of fair market value as on 01.04.1981, the CIT(A) has held that the assessee cannot be said to have submitted inaccurate particulars, as the fair market value adopted by the assessee was based on valuation report of valuer. The Ld. CIT(A) erred in law and on facts in directing the A.O. to recompute the concealed income in the light of the above finding. The CIT(A) further erred in law and on facts in holding that if as a result of his finding the assessee's liability towards long term capital gain is affected, the A.O. shall compute the same, which in turn, will give the tax sought to be evaded and therefore, the resultant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to Mrs. Uma K. Seth, widow of one of the brothers for vacation of the property at Rs. 19,72,000/- as against Rs.59,16,000/- on the ground that the dispute between Mrs. Uma K, Seth and the rest of the family members included properties other than "Premkutir" also and therefore he ascribed certain proportion of the total payment made, as a result of mutual agreement, for the purpose of vacation of the property in question. 3) For the purpose of computing capital gains, the fair market value as adopted by the Assessing Officer was Rs.2,40,000/- as on 01/04/1981 as against Rs.45,60,000/- adopted by the assessee on the basis of a valuer's report. 4) The Assessing Officer did not allow the claim of old liabilities amounting to Rs.3,15,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that fair market value of the flat as on 01.04.1981 as declared by the assessee should be adopted by the A.O. It is further submitted that since it is held that the market value of the flat as on 01.04.1981 as declared by the assessee is to be adopted for working out capital gain/loss of the assessee, the net result will be capital loss because total capital loss declared by the assessee was of Rs.96,85,664/- out of which, the share of the assessee was 1/7th i.e. Rs.13,83,666/- and the A.O. computed total long term capital gain at Rs.1,66,35,950/- and worked out the share of the assessee to the extent of 1/7th at Rs.23,05,136/-. It is further submitted that while doing so, the A.O. adopted the indexed cost of acquisition at Rs.10,72,800/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.23,05,136/- and no penalty is imposed by him in respect of long term capital loss declared by the assessee at Rs.13,83,666/- but not allowed by the A.O. in the assessment order. Since as per the tribunal order in quantum proceedings, it is held by the tribunal that fair market value of the flat as on 01.04.1981 as declared by the assessee has to be adopted by the A.O. and after effect is given to this tribunal order in quantum proceedings, the resultant capital gain will not be in positive figure but it will be a long term capital loss only although the same may be at a lesser amount than declared by the assessee. But still since no penalty is imposed by the A.O. in respect of capital loss declared by the assessee and not allowed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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