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2015 (4) TMI 43 - ITAT AHMEDABAD

2015 (4) TMI 43 - ITAT AHMEDABAD - TMI - Share in the property sold - capital gain computation - CIT(A) held assesseee's share as 1/18th, instead of 1/6th determined by the Assessing Officer on the basis of Form 6A dated 08/11/1983 - Held that:- Since assessee along with his sons had 1/6 share, Assessing Officer taxed the entire share in his hand without considering the share of his sons ignoring the fact that they had received their share of payment and reflected the sale consideration in t .....

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on. Considering these facts and circumstances, CIT(A) was justified in directing the Assessing Officer to treat the disclosed capital gain 1/18th share. This reasoned finding CIT(A) needs no interference from our side. - Decided against revenue. - ITA. No.2008/Ahd/2011 - Dated:- 13-3-2015 - Shri Shailendra Kumar Yadav And Shri Anil Chaturvedi JJ. For the Appellant : Shri M. K. Singh, Sr. D.R. For the Respondent : Shri S. N. Divetia, A.R. ORDER Per Shailendra Kumar Yadav, J.M: This appeal has bee .....

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om other sources. Assessing Officer in assessment order has observed as under: "During the year under consideration the assessee filed his return of income with showing pension income. Income from other sources alongwith income of long term capital gain on sale of urban agriculture land of ₹ 38,05,558/- against which the assessee invested ₹ 36,00,000/- in bond issued by national highway authority of India and claimed deduction u/s. 54 EC of ₹ 35,30,058/- ( duly restricted) .....

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said land. The Form no 7/12 of the F.Y. 2006-07 generated through software of the Govt. of Guj'araf dated 07.08.2010 vide Sr. NO.3274052 and abstract of form 6 which was registered on 19.03.2007 vide Registry No. 6697 (Copies are forming part of the order hence enclosed with the assessment order). It is also noticed by the undersigned that Smt. Diwaliben Chunilal, W/o. Shri Chunilal Devidas was expired on 8.10.1992. After that, Shri Chunilal D. Patel, father of the assessee, who was expired .....

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ritances Name mention in copy of 7/12 i.e. name of the agriculturists Name mentioned in the sale deed i.e. name of the seller persons 1 Sh.Ramanlal Chunilal Sh. Chunilal Devidas Sh.Ramanlal Chunilal 2 Sh.Chimanlal Chunilal Sh.Ramanlal Chunilal Sh.Chimanlal Chunilal 3 Sh.Baldevhai Chunilal Sh.Chimanlal Chunilal Sh.Baldevhai Chunilal 4 Sh.Ratilal Chunilal Sh.Baldevhai Chunilal Sh.Ratilal Chunilal 5 Smt. Vimalaben Chunilal Sh.Ratilal Chunilal Smt. Chandrikaben Alias Minalben Jagdishkumar 6 N.A. Smt .....

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the benefit of the indexation from the date of holding the property by the assessee i.e. F.Y. 2004-05. It is also noticed that assessee has taken indexation for the year 198I i.e. from the date of acquisition of property by the previous ower i.e. not accordance with the under section 48(iii) of the Act. This said query raised during the course of hearing and detailed discussion made with the A.R. of the assessee. Thereafter the undersigned has issued show caused issued on 15.11.2010............. .....

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urn of income filed by the assessee for the A.Y. under consideration. The inspector of this office has been deputed for the service of the aforesaid notice which has been served accordingly. However, the assessee vide his submission dated 02.12.2010 which have been received by this office on 02.12.2010 in which the assessee asked for the adjournment for 3 to 4 days which has been granted and the hearing is reaffixed on 08.12.2010. In response to the said notice the asses sees vide his reply date .....

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s name with the block number i.e. 308 C (308 ) is entered vide aforesaid form from 08.11. 1983. So considering the reply of the assessee and also evidence thereon, the year which was mentioned in the show caused for indexation is 2004-05 instead of 1983- 1984. If is very much clear from the assessee's reply dated 09.12.2010 that the assessee agreed for the proposed addition in regards to sec. 48(iii). In the section 48(iii) it is clearly mentioned for the application of the indexation. In se .....

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and not from the 1980-81 as taken by the assessee. Therefore, the indexation claimed by the assessee has been restricted as under :- Working of indexation on L T.C..G is as under: Rs.(50,0001- ***) x 551/116 = ₹ 2,37,500/- Total Amount of the property after applying the 'indexation as above ₹ 2,37,500/- Less: Cost of indexation shown by the assesse ₹ 2,75,500/- The excess deduction claimed by the assesse ₹ 38,000/- Therefore, the made an addition of 38,000/-. on acco .....

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rsigned. Here, assessee has when another stands that, amount of ₹ 1,13,95,000 received by him as well as his family members out of the total sale consideration ₹ 6,85,00,000/- . Now, here once again assessee tries to hide the facts of the sale deed and also the ownership of the land. As mentioned earlier and information gathered from the collector office by issuing notice u/s. 133(6) of the IT. Act through the inspector working in the office of the undersigned as well as from the sal .....

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ee and not of his family members. So, the distribution' of the amount, amongst the family members before the making payment of LT.C.G. is not correct as per the Income fax Act. Moreover, the assessee shown the amount of sales consideration is a/so wrong. Looking to the share of the assessee in the land, the assessee has been received of ₹ 1,14,16,667/-( 1/6th share of Rs..6,85,00,000/-) where in the reply the assessee mentioned that he alongwith his family members has received ₹ .....

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lly the share holder of the said property. So the addition, regarding the amount received due to the said transaction, comes to 1,14,16,667/-, after considering the reply of the assessee and evidences thereof is added to the total income of the assessee instead of the addition proposed in the show caused dated 15.11.2010 i.e. of ₹ 1,37,00,000/-. Penalty u/s, 271(1)(c) of the I.T. Act has been initiated separately on this ground as the assessee is frequently changed his stands. The assessee .....

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he property sold, it is submitted that the appellant had 18th share as against 1/6th assessed by the Assessing Officer. It is not disputed by the AO that the property sold was ancestral in nature it devolved to the appellant and his brothers from their forefather. Even, the extract of record of right in Form No.6 (See P.19-20) it is evident that the said property was ancestral and vide Entry 2974 dated 10.8.1982, the names of the appellant and his three brothers and their mother were entered. Th .....

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d land being ancestral property, each coparcener had share in this property and upon division, the 1/6th share was divided between the appellant and his two sons in accordance with the principles of Hindu Law. Thus, the appellant had rightly claim 18th share in this property. If may be noted that both the other co-owners, Shri Jagdish Patel and Shri Shailesh Patel are assessed to fax and have filed their return of income for A.Y. 2008-09 declaring the capital gain in respect of this property. Th .....

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ank Deposit, aggregating to ₹ 35,30,058 whereas Shri Shailesh Patel has claimed exemption u/s 54 and investment in NHAI totaling to ₹ 35,22,833/-. The same is evident from the computation of income enclosed. As a result, the computation of capital gains made by AO would get revised as under: Total sale consideration ₹ 1,14,16,667 Less; Exemption u/s 54EC (Self) ₹ 36,00,000 Exemption u/s 54 (Jagdish) ₹ 30,17,000 CGS Bank (Jagdish) ₹ 7,17,000 Exemption u/s 54 (S .....

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same, CIT(A) has granted relief to the assessee by directing Assessing Officer to treat assessee s share in property during assessment year 1/18th instead of 1/6th determined by Assessing Officer. 4. Same has been opposed on behalf of Revenue inter alia submitted that CIT(A) was not justified in directing the Assessing Officer to treat the assessee s share in property sold during year as 1/18th instead of 1/6th determined by Assessing Officer on the basis of Form 16 dated 08.11.1993. Accordingly .....

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o share of assessee only. Assessing Officer assessed assessee s share in property 1/6th instead of claimed by him at 1/18th. Stand of assessee has been that it was an ancestral property jointly held by other brothers and family members. Assessee submitted the details of complete family along with authorities evidencing the owners of property and assessee's share. However Assessing officer went by deed of convenience in which five persons names were mentioned as second party and next- generat .....

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