TMI Blog2019 (6) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... mother of the assessee as joint owner and paid the half of the consideration; the assessing officer in absence of adverse evidence should have accepted the joint ownership of the assessee. The assessee has clearly discharged his onus by proving the fact that assessee was joint owner of the flat along with his mother, therefore, in our view, the assessee is entitled for the benefit of LTCG. In the result, the grounds of appeal raised by assessee are allowed. - ITA No. 4844/Mum/2017 - - - Dated:- 29-5-2019 - Shri G.S. Pannu, Vice-President And Shri Pawan Singh, Judicial Member For the Appellant : Shri Anil Sathe (AR) For the Respondent : Shri Ajay Kumar Keshri (DR) ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. This appeal by assessee is directed against the order of ld. Commissioner of Income-tax (Appeals)-3 [for short the ld. CIT(A) ], Mumbai dated 27.04.2017, which arise from the assessment order dated 15.01.2014 passed under section 143(3) for Assessment Year 2011-12. 2. Brief facts of the case are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer. On verification of documents furnished by society, the Assessing Officer find that transfer details reveals that on 04.09.2009, this flat was registered in the name of assessee only. On 06.05.2010 an entry was made in the name of assessee Mrs. Malati Apte (mother of assessee). The assessee was asked to clarify the discrepancies vide notice dated 16.01.2014. The assessee furnished its reply dated 10.01.2014 (as recorded by Assessing Officer in para-5.6). In the reply, the assessee stated that original sale-deed (agreement to sale) was in the name of assessee and his mother. Society by mistake entered the name of assessee only, which was subsequently rectified vide endorsement dated 06.05.2010 and the name of his mother was also entered. The contention of assessee was not accepted by Assessing Officer. The Assessing Officer took the view that only one electricity bill was produced by assessee for the month of June 2010 which clearly states that the property was registered in the name of assessee only. The share certificate clearly indicates that flat was registered in assessee s name only. Subsequent entry made on 06.05.2010 by inserting the name of his mother t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Purchase agreement in which the name of Mrs. Malati Apte was included (b) The General Power of Attorney executed by the person from whom the appellant and his mother had purchased the flat, which contained an assertion by him that the flat had been sold by him to the appellant and Mrs. Malati Apte. (c) Copy of Share certificate of the Society and the memorandum of transfer which contained the name of Mrs. Malati Apte at the first instance (d) Certificate of the Society issued to the collector of stamps dated 10th December 2008 which clearly states that the purchasers were the appellant and Mrs. Malati Apte his mother. (e) The sale deed which gave rise to the capital gain, in which there was a clear assertion that after verification the purchasers were satisfied about the title of the appellant and his mother Mrs. Malati Apte. 3. The learned CIT(A) erred in not appreciating that while the purchase deed was a Xerox copy, the contents thereof namely the ownership of the appellant and his mother stood fully corroborated by the documents set out in the preceding ground. 4. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal owner of the flat along with memorandum of transfer recording the transfer entries. The Assessing Officer not appreciated the fact that initially, the memorandum of transfer dated 28.02.1998, in the record of the society contained the name of Smt. Malati Apte (Mother of assessee) the society added the name of assessee and his mother after satisfaction of joint ownership. This memorandum of transfer affirmed the fact that mother of assessee was having equal right, title and interest in the said property which cannot be denied totally. The society issued a certificate dated 10.12.2018 to the Collector of Stamp, Mumbai Metropolitan Regional Development Authority (MMRDA) stating that assessee as well as his mother are bonafide member of the society. The insertion of assessee s mother name in the purchase-deed was a bonafide mistake which was corrected immediately at the time of execution of the documents and her name was included. The mother of assessee has already included the share of proceed of her share while computing capital gain at the time of filing her return of income. The inclusion of entire sale proceed in assessee s hand would amount to double taxation. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 22.03.1980, the name of mother of assessee was inserted subsequently i.e. after execution of agreement to sale. The agreement to sale is a type document; however, the name of mother of assessee is inserted by handwriting. The document produced i.e. agreement to sale by assessee is a manufactured and self-serving document. 9. We have considered the rival submission of the parties and have gone through the order of authorities below. The Assessing Officer while passing the assessment order, made addition of ₹ 35,45,420/- on account of capital gain to the total income of assessee. Before making addition, the Assessing Officer noted that assessee claimed to have sold a residential flat which was jointly owned by him and his mother and 50% of sale proceeds was offered for taxation in his own hand. The assessee was asked to substantiate his claim and to prove the joint ownership. The assessee filed his reply dated 26.11.2013. In reply, the assessee stated that he do not have the electricity, society and receipts which has been destroyed. The assessee furnished the electricity bill for the month of June 2010. The Assessing Officer conducted the enquiry from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of Attorney dated 4th August 1986 in the name of assessee and his mother, agreement to sale dated 22.03.1980 in the name of assessee and his mother is inserted by handwriting. Copy of receipt of consideration for purchase of said flat dated 17th October 1980 for ₹ 18,000/- and copy of agreement to sale for sale of the flat executed by assessee and his mother dated 11.06.2010. 11. On sale of said residential flat, the assessee as we1ll as her mother received equal (50% each) of sale consideration. The copy of Demand Draft/Banker s cheques received by assessee and his mother is also placed on record. The Assessing Officer has not disputed the fact that mother of assessee offered the gain received by her on sale of said residential flat. Narrow dispute before us is if the assessee was also joint owner of the said flat. The bone of contention on which revenue as well as assessee locked their horn is the agreement to sale dated 22.03.1980. In the said agreement to sale the name of mother of assessee is inserted by handwriting and necessary corrections were made in the said document. The perusal of said agreement to sale reveals that the said ..... 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