TMI Blog2015 (4) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... oned 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 been filed by the Revenue against the order of Commissioner of Income Tax (Appeals)-VI, Ahmedabad, dated 02.06.2011 for A.Y. 2008-09 on the following ground: 1) The Ld. Commissioner of Income tax (A) has erred in law and on facts in directing the Assessing Officer to treat the Assessee s share in the property sold during the year, as 1/18th, instead of 1/6th determined by the Assessing Officer on the basis of Form 6A dated 08/11/1983. 2. Assessee is individual and derives income from pension and from 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/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Ratilal Chunilal 5 Smt. Vimalaben Chunilal Sh.Ratilal Chunilal Smt. Chandrikaben Alias Minalben Jagdishkumar 6 N.A. Smt. Diwaliben Chunilal N.A. From the above it is crystal clear from the sale deed that, the assessee along with four other persons was the owner of the said land after the death of the father of the assessee i.e. after 10.5.2004. In short, the owner of the said land is only 5 (Five) persons according to the sale deed and therefore, total sale consideration is distribute among only in the 5 (Five) persons. Moreover, according to the section 48(iii) of the Income Tax Act the assessee is entitle for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form NO.6 dated 08.11.1983 vide entry No. 2940,. So the indexation would be applied from the first year of the property in which it was held by the assessee i.e. 1983-1984 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 account of excess deduction claimed by the assessee as a cost of indexation and added back to the assessee's total income. Penalty proceedings u/s. 271(1)(c) r.w.s. 274 of the .I.T. Act, is initiated for furnishing inaccurate particulars of income and concealing the income thereon. Now come to the second point that is of the ownership of the sale land. The assessee himself partly agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 has also furnished the in accurate particulars of the income by way of either shown payment to confirming party without any basis or introducing family members and shown the payment to them out of the received sale consideration to minimize the tax liabilities on the capital gain. 4. Matter was carried before the First Appellate Authority, wherein various submissions were made on behalf of assessee, which are as under: As regards the issue relating to the share of the appellant in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 3,63,284 Less: Cost of indexation as per AO ₹ 2,37,500 ₹ 1,25,784 In view of the above, the taxable capital gains worked out by AO, requires to be modified. Needless to state that the above working has been given without prejudice to the appellant's contention that his share is 18th and indexation is to be made from the year of acquisition of the previous owner. Having considered the 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, order of CIT(A) be set aside and that of Assessing Officer be restored. On other hand learned Authorized Representative supported the order of CIT(A). 4.1 After going throu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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