TaxTMI 
TaxTMI 
2021 (9) TMI 853
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....ent properties which were held jointly along with her father namely Shri Krishnakant G. Vakharia, and others. The assessee on the sale of such properties declared the capital gain of Rs. 2,32,16,098/- in the manner as discussed below: S. No. Description of the property Sale deed Regn No/Date of sale Total sales consideration; Sahre in the sales consideration Date of purchase Cost of purchase Indexed cost of purchase Long term capital gain 1 Survey No. 91 Paiki Khoraj Agri Land 17220/2014 6,30,00,000/- 15.05.2009 5,32,645/- 8,63,020/- 27,36,980/- 23.12.2014 36,00,000/- 2 Survey No. 91 Paiki Khoraj Agri Land 17217/2014 1,20,00,000/- 23.03.2001 18,200/- 2,74,979/- 23,54,097/- 23.12.2014 24,00,000/- 3 Survey No. 81 Paiki Khoraj Agri Land 17221/2014 9,20,00,000/- 25.07.1983 31,750/- 2,74,919/- 1,81,25,021/- 23.12.2014 1,84,00,000/- 3.1 However, the Ld. Pr. CIT found that the property bearing survey no. 91/khata no. 1489 admeasuring 12393 sq. mtrs. was jointly sold by the assessee along with her father. The impugned property was purchased in two instalments. Firstly, it was purchased by the father of the assessee Shri ....
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....d 24/02/2020 submitted that she had made payment for the purchase of property bearing survey no. 91/khata No. 1489 for Rs. 5,32,645/- against the total cost of purchase at Rs. 35.20 lacs. Thus, the investment made by her in the property under consideration comes only at 5.71% only. Accordingly, the assessee has taken share in the sale consideration of the impugned property at 5.71% out of the total consideration. 3.7 Furthermore, remaining amount of sale consideration was declared by her father in his return of income after claiming the proportionate cost of acquisition. 3.8 All the facts for the purchase and sale of impugned property were duly verified by the AO during the assessment proceedings and thereafter the claim of the assessee was accepted. 3.9 It was also submitted that the assessee and her father, both are paying taxes at the maximum marginal rate and therefore it can be seen that there was no loss incurred by the Revenue. 3.10 The assessee with regard to the claim made u/s 54B of the Act, submitted that the necessary facts during the original assessment proceedings u/s 143(3) of the Act, were duly verified and therefore the same was allowed by the AO in the Assessm....
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....maining land of 10053 sq.mtrs. Further, since the A.O. has adopted total sale consideration at Rs. 6,38,23,950/- for 12393 sq.mtrs. for which the average rate of sale consideration has been worked out to Rs. 5150/- per sq.mtr. and accordingly, the assessee's share in the sale consideration for 2340 sq.mtrs. of land is worked out at Rs. 1,20,51,000/- which is further required to be replaced by Rs. 1,20,49,962/- as proposed in the show cause notice so as to arrive at the logical figure of sale consideration based on the facts now appraised afresh. 3.4 Considering the above facts as appraised on a fresh perusal of the records now made available, the capital gain in the hands of the assessee is directed to be computed as under:- Sr. No. Description of Ihe properly Total sale consideration Share of assessee Sale consideration Date of purchase Cost of purchase Indexed cost of acquisition LTCG to be recomputed. LTCG by assessee 1 Survey No.91 Paiki Khoraj Aqri. Land 63823950 16.88% 12051000 15.05.2009 1760000 2351645 9199355 2736980 2 Survey No.91 Paiki Khoraj Aqri, Land 12246700 20% 2449340 23.03.2001 18200 45903 2403437 2354....
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....reflected on page 19 of the said sale deed. The bank statement filed by the assessee also reflected the said amount cleared on 09.02.2015. 4.1 During the course of present revisionary proceedings, the assessee has contended that she had purchased the agricultural land and claimed the amount of Rs. 21,04,500/- for which the copy of purchase deed has been filed. On going through the same, it is noticed that the assessee has not filed the required copy of the purchase deed but filed the copy of purchase deed registered at Sr.No.5315 of 2009 through which Shri Krishnakant G. Vakharia and the assessee made purchase from Chandresh R. Patel and others. Thus, the assessee has not substantiated her claim for the deduction u/s 54B of the Act. Here only a purchase deed is available in respect of property in the form of shop at Sanand which has been found to be filed during the course of assessment proceedings. Since the assessee has sold non-agricultural land, the available deduction on purchase of shop would be governed by the provisions of section 54B or section 54F of the Act. Section 54B of the Act allows deduction in respect of purchase of new agricultural land which is not the case of....
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....val contentions of both the parties and perused the materials available on record. The order passed by the AO in any proceedings can be revised under the provisions of section 263 of the Act if it is found erroneous insofar prejudicial to the interest of revenue. The twin conditions i.e. erroneous and prejudicial to the interest of revenue has to be satisfied for invoking the provisions of section 263 of the Act. There can be a situation that the order passed by the AO is erroneous but not prejudicial to the interest of revenue and vice versa. In that situation, such order cannot be subject to the revision under section 263 of the Act. In the case on hand, let us see whether the error highlighted by the learned Pr. CIT under section 263 of the Act causes any prejudice to the interest of revenue. In the case on hand the assessee has declared her amount of share in the sale consideration in the joint property under dispute amounting to Rs. 36 lakh- whereas the learned Pr. CIT has held that the amount attributable to the assessee in the sale consideration stands at Rs. 1,20,49,962/- only. Admittedly, there is no dispute in the total value of the sale consideration as well as the cost ....
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....satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the revenue. If one of them is absent - if the order of the ITO is erroneous but is not prejudicial to the revenue or if it is not erroneous but is prejudicial to the revenue - recourse cannot be had to section 263(1). 7.3 In view of the above, we hold that even there is any error in the order of the AO but it does not cause any prejudice to the revenue and therefore the same cannot be revised under section 263 of the Act. 7.4 Moving to the 2nd allegation raised by the learned Pr. CIT under section 263 of the with respect to the deduction claimed by the assessee under section 54B of the Act. In this regard we find that the order which is under revision under section 263 of the Act was passed under section 143(3) read with section 147 of the Act. The proceedings under section 147 of the Act was initiated on account of difference in the amount of sale consideration shown by the assessee viz a viz the value determined for the purpose of the stamp duty under the provisions of section 50C of the Act. In this connection, we refer....
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.... computed at Rs. 1,83,42,982/- as against Rs. 1,81,24,Q21/-, Hence, there is under assessment of Rs. 2,18,961/- (Rs. 1,83,42,982 - Rs. 1,81,24,021). 3. In view of the above facts, I have reason to believe that income chargeable to tax has escaped assessment of Rs. 3,12,648/-(Rs. 44,347 + Rs. 49,340 + Rs. 2,18,961) within the meaning of Section 147 of the IT Act and the assessee has also not disclosed fully and truly all relevant facts and materials necessary for the assessment Therefore, I am satisfied that it is a fit case for re-opening the assessment u/s.147 of the IT Act for the A.Y.2015-16. 7.5 The reopening was made on the allegation that the assessee has understated the amount of sale consideration of the property and therefore the AO framed the assessment under section 143(3) read with section 147 of the Act considering the sale consideration declared by the assessee viz a viz the value adopted for the stamp duty purposes under section 50C of the Act. As such, there was no issue in the re-assessment proceedings with respect to the provisions of section 54B of the Act. Now the controversy arises whether the learned Principal CIT can widen the scope of the assessment which....