TMI Blog2021 (2) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... e transaction, therefore, in our view, the assessee cannot be treated indifferently for similar transaction. Thus, the objection raised by the learned DR for the revenue is not acceptable to us. - I.T.A No.3665/AHD/2015 - - - Dated:- 12-2-2021 - Shri Pawan Singh, Hon'ble Judicial Member And Dr. Shri Arjun Lal Saini, Hon'ble Accountant Member For the Assessee : Shri Mitish Modi CA For the Revenue : Mrs. Anupama Singla - Sr.DR ORDER PER PAWAN SINGH, JUDICIAL MEMEBER: 1. This appeal by Assessee is directed against the order of ld. Commissioner of Income Tax (Appeals)-2, Surat, hereinafter referred as Ld. CIT (A) , dated 16.09.2015 for assessment year (AY) 2008-09. 2. Perusal of records shows that impugned order was passed by the ld. CIT(A) on 16.09.2015. However, the appeal was filed on 30.12.2012. Further perusal of record reveals that registry has notified to the assessee about the defect of delay of 10 days in filing the appeal before the Tribunal. The assessee has filed an application for condonation of delay. In the application, the assessee stated that order of ld. CIT(A) was received on 21.10.2015. There was renovation work in the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y The AO ) in making the addition of ₹ 15,77,900/- invoking the provisions of Section 50C of the Act arbitrarily and purely on presumption, assumption and surmises for the alleged Capital Gain on transfer of the land and hence, liable to be set aside. (2) On the facts and in the circumstances of the case and in law, both the lower authorities have grievously failed to see that the valuation report given by the DVO on making reference by the AO, without affording an opportunity to the appellant being heard and hence, the order passed by both the lower authorities solely relying upon the DVO's report given in pure violation of the principles of natural justice, is without jurisdiction, illegal, bad in law and liable to be struck down. (3) Both the lower authorities have grievously erred in not properly appreciating the entire correspondences made in the course of assessment proceedings and/or appeal/remand proceedings already being supplied with the appeal memo forming part of the statement of facts including cogent explanations and submissions made in writing by the appellant on various dates along with the various enclosures attached with the said submission an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding short term capital gain on transferred the said land of ₹ 1,78,500/-. The assessee sold his land at the Fair Market Value (FMV) prevailing at the time of transfer of land while executing the sale deed on 19.02.2008. During the reassessment, the assessee complied all notices. The assessee filed objections against the initiation the re-assessment proceedings for alleged escapement income from taxation and for invoking provision of section 50C of the Act. The AO reopened the case of assessee on the basis of information from Sub- Registrar-1, Surat about the sale deed executed on 19.02.2008 wherein the Stamp Valuation Authority determined the value of land at ₹ 40,06,800/- for the purpose of stamp and recovered the additional stamp duty from the purchaser. The assessee received sale consideration of ₹ 4,25,500/- only being 50% share in the said land. The AO disregarded the submission of assessee and substituted the value by adopting the deeming value adopted by Stamp Valuation Authority and applied the provision of section 50C of the Act and made addition accordingly. The AO made addition purely on assumption and presumption. The AO solely relied upon the valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as return in response to notice under section 148 of the Act. The assessee during the assessment, vide application dated 22.12.2011 raised objection that assessee and his co-owner Shri Dipakbhai Dalpatbhai Rana sold the agricultural land for a sale consideration of ₹ 8,51,000/- and that the share of assessee being 50% is ₹ 4,25,500/-. The assessee also specifically stated that assessee offered Short Term Capital Gain (STCG) on sale of such asset. Similarly, the co-owner of assessee also offered similar STCG. The Revenue accepted the STCG offered by his co-owner. However, the addition was made against the assessee by invoking the deeming provision. The learned AR of the assessee submits that Revenue cannot treat the assessee indifferently than his co-owner. In his co-owner case the Revenue has accepted STCG. However, in assessee s case, the addition is made by invoking of deeming provision of section 50C of the Act. 10. The learned AR for the assessee submits that the Hon'ble Madras High Court in the case of CIT Vs. Kumararani Smt. Meenakshi Achi reported in 292 ITR 624 held that the assessee is also entitled for the benefit enjoyed by other co-owner whose valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Authority. We have further noted that during re-assessment the assessee vide his application dated 22.12.2011 stated that the assessee was joint-owner with Shri Dipakbhai Dalpatbhai Rana being 50% shareholder and 50% of sale consideration was received by him /Rana. The assessee has placed on record copy of application dated 22.12.2011 along with the copy of return of income with computation of total income for AY 2008-09 of his co-sharer. No finding for accepting the similar capital gain in co-owners case, and treating the assessee indifferently, is given either by the AO or by the ld.CIT(A). Though, during the first appellate stage, the ld CIT(A0 referred the matter to the DVO, however the addition based on deeming provision under section 50C of the Act was upheld. 13. Before us, the AR of the assessee vehemently submitted that once the similar capital gain as offered by the assessee on transfer of same asset has been accepted by the Revenue in assessee s co-owners case, the assessee cannot be treated indifferently and relied on various case laws as noted (supra). The learned AR of the assessee also relied on the decision of Coordinate Bench in M.Ambalal Desai vs. ITO ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has submitted valuation report of the property from Govt. Approved Valuer who has arrived value of property at ₹ 66,61,020 as on 01.04.1981. The value of the assessee s share comes to ₹ 4,16,314. Indexed cost as per section 48 of the Act is worked out at ₹ 24,22,947/-. As per stamp duty authority the assessee s share being 6.25% of sale value in the property comes to ₹ 25,56,310/-. Thus capital gain comes to ₹ 1,33,363/-, which was taxable in the hands of the assessee. The capital gain of ₹ 1,33,363 has now been shown by the assessee in the Return of Income filed in response to notice u/s 148 of the Act. However, the assessee has not declared suo moto Long Term Capital Gain as he has not filed return of Income. The assessee has consciously not filed return of income to avoid payment of tax. Therefore, Penalty proceedings u/s. 271(1)(c) of the Act are initiated on this issue for concealment of income. 10. We have noted that identical worded assessment order was passed in other co-owner case i.e. Smt. Prabhaben Harshadrai Desai, relevant part of the assessment order is extracted below;: 3. On perusal of records and details submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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