TMI Blog2022 (6) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the perusal of the above record. The ld.CIT has not given due credence to the reply filed by the assessee and passed this revision order. However, it can be seen from the co-owner, assessee s brother Shri Vijay Patel s case that similar deduction was being allowed by the ITO (International Taxation), Baroda after detailed inquiry, wherein the assessee s brother has also given detailed reply dated 12.12.2011. After considering the above reply, the ITO(International taxation) has accepted the returned income and allowed the deduction by passing order under section 143(3) of the Act dated 29.12.2011 and that assessment order was not subject matter of revision or reopening by the Department, but in the case of the assessee being co-owner of the same properties, a show cause notice under section 263 of the Act dated 23.8.2013 was issued and explanation was called for from the assessee. Here it is to be noted that ld.CIT has not verified, what happened to other co-owner viz. assessee s brother Shri Vijay Patel case which assessment has attained finality. Thus different treatments cannot be given on the same set of facts in respect of different co-owners of a common piece of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o been invested by the assessee in the capital gain bonds. Thus, entire amount of long term capital gain has been invested in purchase of new flat under section 54 and 54F of the Act and in capital gain bonds under section 54EC of the Act. The assessee filed her return of income admitting the above capital gain on 20.7.2009 and declared a total income of Rs.1,09,210/-. The return was processed under section 143(1) of the Act, and thereafter taken for scrutiny assessment and notices under sections 143(2) and 142(1) of the Act were served upon the assessee. The assessee submitted various details as are required under the notice and on perusal of the submissions and relevant records, the AO satisfied with the claim of exemption under section 54 and 54F of the Act and passed an order under section 143(3) of the act on 23.8.2011 accepting the returned income. 3. The ld.CIT-1, Baroda issued a show cause notice under section 263 of the Act, on the ground that order passed by the AO was erroneous and prejudicial to the interest of the Revenue on the following grounds: On perusal of records it is seen that the assessee had sold properties and received sale proceeds of Rs. 1,44,58,17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty, which is an open plot and therefore, as explained above, I have claimed deduction U/s 54F. 5. However, the reply was not accepted by the ld.CIT on the ground that the assessee has not furnished any evidence in support of such contentions that residential house was constructed on one plot. The sale deed of two plots are identical and sale deed for Plot no.34 does not mention anywhere that there was residential building sold through the sale deed. From the sale deed itself apparent that both were only plots of land, though the contentions of the assessee that two different kinds of properties were sold were not supported by documents; there is nothing on record to prove when the construction was made; what was the size of the construction; when approval was taken; when the completion certificate was acquired. The assessee has failed to furnish before the AO any evidence in support of claim and the AO had also not examined this issue properly and had not brought any evidence on record in support of the contentions that two different kinds of properties were sold by the assessee, and the assessee has also made 100% deduction, though the assessee owned only 50% share in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the facts and circumstances of the case and in law no such fresh assessment is required to be made as the same will unnecessarily prolong the proceedings. 7. The ld.counsel, Shri Manish J. Shah appeared on behalf of the assessee submitted a Paper Book wherein a copy of reply dated 2.9.2013 filed by the assessee to the show cause notice issued under section 263 of the Act, which was reproduced by the ld.CIT in his impugned order. There is one more reply dated 12.11.2013, wherein the assessee also enclosed various other documents viz. (i) copy of the property card issued by City Survey Office; (ii) copy of sale deed for Plot Nos.34 and 35, (iii) copy of Income-tax acknowledgements for earlier years (to show that rental income from the above property), (iv) copy of bank accounts, (v) copy of Will, and (vi) copy of citations. 7.1 The ld.counsel has also brought to our notice page no.14 of the Paper Book, wherein property sketch issued by the Competent Authority (in Gujarati) for Plot Nos.34 and 35 as well as property tax paid by the assessee. Thus, he contended that the ld.CIT has not appreciated the reply filed by the assessee and also not perused docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion that Plot No.34 does not mention anywhere that there was a residential building sold through the sale deed. Further, CIT absolutely erred in stating that the assessee has made 100% claim of deduction whereas she has only 50% as co-owners in the above properties and from going through the Sale Deeds both the lands are vacant lands. Thus, the above finding of the ld.CIT is not correct from the perusal of the above record. The ld.CIT has not given due credence to the reply filed by the assessee and passed this revision order. However, it can be seen from the co-owner, assessee s brother Shri Vijay Patel s case that similar deduction was being allowed by the ITO (International Taxation), Baroda after detailed inquiry, wherein the assessee s brother has also given detailed reply dated 12.12.2011. After considering the above reply, the ITO(International taxation) has accepted the returned income and allowed the deduction by passing order under section 143(3) of the Act dated 29.12.2011 and that assessment order was not subject matter of revision or reopening by the Department, but in the case of the assessee being co-owner of the same properties, a show cause notice under section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot reject the claim of the assessee whereas in the case of the brother of the assessee in the identical facts and circumstances, the same was accepted. Accordingly on this count, we are not convinced with the finding of the authorities below. Hence, we set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is partly allowed for the statistical purposes. 12. Another Co-ordinate Bench in the case of Rajeshkumar Shantilal Patel (supra) held as follows: 14. Considering the aforesaid factual and legal discussion, we accept the contention of ld. AR for the assessee that once, the similar STCG offered by the co-owner has been accepted by the revenue, and the assessee is also entitled for similar relief. We find convincing force in the submissions learned AR for the assessee. Hence, the appeal of the assessee is allowed. So far as the objection of learned DR for the Revenue is that the case of co-owner of Shri Dipakbhai Dalpatbhai Rana, no scrutiny assessment was initiated, is concern, we find that this fact was brought by assessee at the earliest possible action. The Revenue has not taken an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
