TMI Blog2013 (5) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... and. CIT(A) will allowing the claim of assessee has relied on the order in the case of his brother who was also one of the signatory of the sale deed executed on 12.12.2007 where AO had accepted the gift of undivided share in the land of 40% to him vide gift deed dated 20.11.2007 as genuine and has held the sale proceeds to be a capital receipt form the sale of the said land and also allowed the claim for deduction u/s 54. DR could not bring any material on record to show that whether any remedial action was taken by the Department in the case of assessee's brother or not. Thus as decided in UOI vs Kamodini Dalal and Another (2000 (12) TMI 101 - SUPREME Court) that it is not open to the Revenue to accept a judgement in the case of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also made in the name of another son of Shri Radhakrishna Gupta. The AO observed that those two sons of Shri Radhakrishna Gupta were having 40% share each and Shri Radhakrishna Gupta 20% share in the entire undivided land. Thus the assessee became 40% owner of the land held by Shri Radhakrishna Gupta. On 12th December, 2007 the entire property was disposed off to five parties namely (i) Super Diamond Nirman Ltd. (2) Tripada Developers Pvt. Ltd. (3) Khushboo Holdings Pvt. Ltd. (4) Sugam Enclave Pvt. Ltd. and (5) Arnab Vyapar Pvt. Ltd. by way of eight separate conveyance deeds. The total consideration received was Rs.1,71,03,350/- out of which 40% amounting to Rs.68,41,340/- was claimed by the assessee as his capital receipt. Out of this rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndivided land and the assessee and his brother have signed for their undivided proportionate shares. The ld. AO was unjustified in law in stating that the gift was incorrect and tax planning was not made within the frame work of law. 3.3. The ld. CIT(A) has also observed that the ld. AR of the assessee has filed a copy of the assessment order in the case of Shri Sushil Kumar Gupta wherein on identical facts the AO has taxed the gain on sale of his share of land under the head "Long Term Capital Gain". The ld. CIT(A) has observed that he has gone through the said assessment order of Shri Sushil Kumar Gupta to whom his father had gifted the undivided 40% proportion of the land vide the gift deed dated 20.11.2007 and in the same manner he so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the appeal was heard exparte qua the respondent assessee. 6. After considering the submissions of the ld. DR we find that the undisputed facts of the case are that the assessee received a gift of 40% undivided share in land from his father Shri Radhakrishna Gupta vide gift deed duly executed before the Registrar on 20.11.2007. the said land was sold to five person on 12.12.2007 by way of a sale deed which was executed by the assessee, his father Shri Radhakrishna Gupta and his brother Shri Sushil Kumar Gupta, the co-owners of the said undivided land. The total consideration received on the sale of the land was Rs.1,7103,350/- out of which the assesee's 40% share was Rs./68,41,340/- which was claimed by the assessee as his capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which his brother Shri Sushil Kumar Gupta had received 40% share of the land as gift from his father was accepted as genuine sale proceeds deduction u/s 54 of the IT Act was also allowed. Therefore, in our considered opinion, the Revenue was not justified in the very same set of facts in the case of the assessee for holding that it was a tax planning by the assessee to evade payment of tax and thereby holding the gift of land to the assessee by his father as not genuine and treating the sale proceeds from the sale of the land as income from other sources and adding of the same to the income of the assessee. Thus we do not find any reason to interfere in the order of the ld. CIT(A) which is hereby confirmed and the grounds of appeal of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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