9911796707
TMI Blog2014 (4) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of a land inherited from her ancestors, the Assessing Officer came to know that the assessee had capital gain of Rs.3,64,734/- in respect of her share for the impugned assessment year. He further noticed that assessment in respect of other legal heirs had been completed on the same basis. The Assessing Officer, therefore, issued a notice under section 148 of the Act on 07.03.2008 calling upon the assessee to furnish a return of income. In the meanwhile, since the assessee had died on 08.12.2007, her legal heir Sri Ahmed Mohd. Khan filed the return of income on 22.04.2008 declaring total income of Rs.19,320/- under the Head 'Income from House Property'. In course of re-assessment proceedings, the Assessing Officer noticed that the assessee along with 13 other family members had transferred the joint family property inherited by them at Miyapur admeasuring Ac.136.00. This property originally belonged to late Abdul Basith Khan who had two sons and three daughters. After the death of Sri Abdul Basith Khan some time in the year 1947, his eldest son Mr. Abdul Baquer Khan sold the entire land to one Mr. Ram Gnaneswar and 4 others in the year 1963. They in turn, sold the land to M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration should have been taken at 1/3rd. He further stated in the show cause notice that the cost of acquisition adopted by the Assessing Officer at Rs.2/- per sq. yard is not correct as the market value of dry agricultural land as on 01.04.1981 was Rs.2/- per acre as per the records of Joint Sub Registrar Office. 2.2. The third issue on which the assessment order was found to be erroneous and prejudicial to the interests of Revenue is, according to the CIT, the Assessing Officer had wrongly allowed the claim of deduction towards brokerage which is not supported by any evidence. On the aforesaid basis, the CIT noted that the correct long term capital gain for assessment year 2001-02 is Rs.11,19,133/- being 1/3rd of the net capital gain of Rs.33,57,400/-. Since the Assessing Officer had computed the capital gains at Rs.3,64,734/-, the CIT directed the assessee to show cause as to why the assessment order passed should not be set aside being erroneous and prejudicial to the interests of Revenue. In response to the show cause notice issued by the CIT, the assessee appeared before the CIT and made his submissions objecting to the conclusion drawn by the CIT that the assessment order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was actually paid to the parties and in support of such contention, the assessee furnished copies of the confirmation letter dated 11.03.2011 from MB Krishna Reddy, Managing Partner of M/s. Venkateswara Builders confirming paying of commission through account payee cheques. The assessee also contended that Sri MB Krishna Reddy in his sworn statement recorded under section 131 on 23.01.2006 had also categorically stated about payment of commission. The CIT however, did not accept the contentions of the assessee and held that the Assessing Officer while completing the assessment has committed an error by not disallowing the commission / brokerage claimed by the assessee. On the aforesaid reasons the CIT, ultimately held that the assessment order passed under section 143(3) read with section 147 of the Act is erroneous and prejudicial to the interests of Revenue and while setting aside the assessment order so passed directed the Assessing Officer to re-do the same as per the directions contained in the order passed under sec. 263 of the Act. Being aggrieved by the order passed by the CIT, the assessee is in appeal before us. 3. The learned A.R. submitted that the exercise of jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 263 of the Act. 4. The learned D.R. while supporting the order of the CIT submitted that the Hon'ble High Court while disposing of the appeal against the preliminary decree in para 19 of the judgment has observed that the preliminary decree continues till the final decree is passed. Therefore, the actual share of the parties cannot be determined on the basis of the preliminary decree. The learned D.R. submitted that the Assessing Officer having determined the share of the assessee at 1/6th of the total extent of land and also in the sale consideration, the assessment order passed has therefore, become erroneous and prejudicial to the interests of Revenue. So far as the issue of adopting of cost of acquisition and payment of brokerage is concerned, the learned Departmental Representative submitted that since the Assessing Officer while completing the assessment has not applied his mind to these issues. The CIT was justified in revising the assessment order under section 263 of the act. 5. We have heard the submissions of the parties and perused the orders passed by the Revenue authorities as well as other materials on record. As is apparent from the notice issued under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty in question. Therefore, in our view, the CIT cannot direct the A.O. to determine assessee's share in property as well as in capital gain as 1/3rd. Therefore, to that extent, CIT's direction cannot be sustained. However, if there will be any change in assessee's share as a result of the final decree to be passed by the Civil Court, the same has to be taken note by the A.O. and consequential action needs to be taken by him. 6. So far as the adoption of cost of acquisition as on 01.04.1981 at Rs.2/- per sq.yard by the Assessing Officer is concerned, it has to be noted that the assessee during the revision proceeding before the CIT had produced certified copies of the sale deeds in case of two comparable instances of sale of land in the same survey number at Rs.6/- per sq. yard. However, the CIT has refused to take cognizance of them on a flimsy ground that the assessee has failed to produce the original sale deeds. Such reasoning of the CIT in our view, is not at all acceptable. When the assessee is producing certified copies of the sale deeds, the CIT is bound to accept them and cannot insist upon the assessee to produce the original sale deeds which is an impossible act to do. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him as, stock-in-trade of a business carried on by him, such conversion or treatment ; or (v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section53A of the Transfer of Property Act, 1882 ( 4 of 1882) or (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, any immovable property. Explanation- For the purposes of sub clauses (v) and (vi), immovable property shall have the same meaning as in clause (d) of section 269UA)." Clause (v) and (vi) clearly say that any transaction involving allowing of the possession to be retained in pursuance of a contract or allowing the enjoyment of the immovable property would also amounts to a transfer. We find that in respect of the very same property, in the case of other co-owners in ITA Nos. 1220 to 1236/Hyd/09, the Tribunal considered the year of assessability and remitted the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
