TMI Blog2022 (6) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... ect amount of capital gain after making necessary reference to the DVO for ascertaining the fair market value of the plot as on the date of sale as well as on 1.4.1981 - HELD THAT:- We find merits in the contentions of the assessee that the addition made by the AO is just on the basis of presumptions and assumptions without any valid basis. Accordingly we set aside the issue to the file of the AO with the direction to refer the matter to DVO for ascertaining the fair market value of the plot as on the date of sale as well as on 1.4.1981 and compute the long term capital on the basis of said report after affording reasonable opportunity of hearing to the assessee. Ground no. 2 is allowed for statistical purposes. Long term capital gain o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm upon reconstitution retirement of a partner. We also note that a specific provision was inserted by Finance Act, 2021 w.e.f. 1.4.2021 providing for making such deemed addition on account of capital gain upon retirement of a person from the partnership firm which are applicable for AY 2021-22 and not to the year under consideration. Accordingly we set aside the order of ld CIT(A) and direct the AO to delete the addition. Appeal of assessee allowed. - I.T.A. No. 1330/Kol/2017 - - - Dated:- 27-6-2022 - Shri Rajpal Yadav, Vice-President And Shri Rajesh Kumar, Accountant Member For the Appellant : Shri Soumitra Choudhury, Advocate For the Respondent : Shri Sailen Samaddar, Addl. CIT ORDER PER SHRI RAJESH KUMAR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has shown nil capital gain on the sale of said plot by taking the FMA as on 1.4.1981 without any basis. The order of the AO was confirmed by the Ld. CIT(A) by passing a very cryptic order. 5. After hearing the parties and perusing the material on record and also impugned order, we note that the AO has computed short term capital gain on sale of plot titled deed no. 1369 of 2011 which was sold for a consideration of Rs. 17 Lakhs having the stamp value of Rs. 21,60,004/- as per Stamp Valuation Authority. The assessee had 1/4th share in the said plot which was acquired on 17.05.1978 with a price of Rs. 20,000/-. The assessee computed long term capital gain at nil whereas the AO computed assessee s share being 1/4th of the long term capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmation of addition of Rs. 1,29,329/- by Ld. CIT(A) as made by the AO on account of long term capital gain on sale of plot. 7. Since the issue raised by the assessee in ground no. 3 is similar to ground no. 2 wherein the AO has computed the capital gain on the basis of presumptions and assumptions by taking the value of plot measuring 16405.125 sq. ft on estimated basis. Consequently we restore the issue to the file of the AO as the same direction to ascertain the fair market value as on the date of sale as well as on 1.4.1981 by referring the matter to the DVO and accordingly assess the long term capital gain falling to the share of the assessee. Ground no. 3 is allowed for statistical purpose. 8. The issue raised in ground nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83,358/- and the assessee s share @ 12.5% was calculated at Rs. 80,72,920/-. Similarly the value of assets attributable to the share of the assessee were calculated at Rs. 10,33,466/- by applying 12.5% to the total assets of the firm of Rs. 82,67,688/- and thus computed the short term capital gain at Rs. 70,39,460/- and added the same to the income of the assessee. 10. The Ld. CIT(A) confirmed the order of AO by passing a cryptic and nonspeaking order as to how the assets of the firm could be subjected to taxation in the hands of the assessee partner who retired from the year by taking deemed sale consideration as per provision of Section 50C of the Act. 11. The Ld. A.R. vehemently submitted before us that the AO has grossly erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the material on record, we note that during the year the assessee has retired from the partnership firm w.e.f. 15.1.2011 in which the assessee was having 12.5% share in the profit. The Firm was having various assets as given above aggregating to Rs. 82,67,688/-. The AO calculated the short term capital gain by computing the deemed sale consideration at Rs. 6,45,83,358/- u/s 50C of the Act and assessee s share was calculated at Rs. 80,72,920/-. Similarly the proportionate asset cost which fall to the assessee s share was calculated at Rs. 10,38,460/- and thus calculated the short term capital gain at Rs. 70,30,31,460/- which was added to the income of the assessee. We have also perused the provisions of Section 9B and also analysed the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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