TMI Blog2022 (9) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... information available with the respondent to re-assess the LTCG claim. AO had considered the same documents during the earlier assessment proceedings and was satisfied with the claim of LTCG made under Section 54 of the Act. Petitioner is entitled to claim exemption under Section 54 of the Act on these admitted facts, as the conditions stipulated in Section 54 stand fulfilled. The New Property would be treated as the property purchased by the petitioner in his name and merely because he has included the name of his wife and the property has been purchased in the joint names, it would not disentitle the petitioner from claiming the exemption under the statutory provisions. Accordingly, the order dated 28th July, 2022 under Section 148A(d) of the Act, and notice issued under Section 148 by the respondent with respect to the Assessment Year 2015-16 are set aside. WP allowed. - W.P.(C) 13713/2022, CM APPL. 41874/2022 & CM APPL. 41875/2022 - - - Dated:- 22-9-2022 - HON'BLE MR. JUSTICE MANMOHAN AND HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA Petitioner Through: Mr. Robin Ratnakar David, Ms. Ruchi Khurana, Mr. Dhiraj Philip Mr. Samuel David, Advocates. Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scrutiny Selection ( CASS ) and the issue of capital gains was a specific issue identified for examination therein. The petitioner responded to the said notice and duly placed before the AO ( Assessing Officer ) all the relevant documents including the sale deed pertaining to the sale of the Delhi Property and the purchase of the New Property as well as the HDFC Bank statement. The learned counsel for petitioner states that after consideration of the aforesaid documents, the AO passed an assessment order on 07th November, 2017, under Section 143(3) of the Act by duly taking note that the petitioner had submitted all necessary details and documents. The AO specifically recorded the facts with respect to the deduction claimed by the petitioner under the head of capital gain in the assessment order and no addition or disallowance was made in the return. The relevant extract of the said assessment order reads as under:- The whole amount of the sale consideration was reinvested in a residential (house) property in Haryana which was acquired on 26th May 2015 for Rs 2,54,20,000- and stamp duty paid of Rs 15,25,200/. The AR submitted the necessary details and documents from time to ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty as exempt u/s 54. 5. He states that this was the only information provided to petitioner and there was no further information. The petitioner had duly replied to the show cause notice vide reply dated 06th June, 2022. He states that the information annexed to the show cause notice alleges that the sole basis for re-opening the assessment proceedings was on a conjecture that 50% of the ownership of the New Property in favour of the petitioner s wife since the New Property was purchased in the joint name of the petitioner and his wife. The evidence regarding the payment made from petitioner's account into which the sale proceeds of Delhi Property owned by him were deposited (not owned by wife) was ignored. He states that the respondent has passed the impugned order dated 28th July, 2022 under Section 148A(d) of the Act opining that the petitioner has claimed excess exemption of LTCG under Section 54 of the Act amounting to Rs. 65,27,400/- however, while passing the said order, the AO had failed to take into consideration the irrefutable documents filed on record which evidence that the entire sale consideration for the New Property has been paid by the petitioner. He s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual findings recorded by the Tribunal in this case are that it was the assessee who independently invested in the purchase of new residential house though in his own name but along with the name of his wife also and that it was the assessee who paid stamp duty and corporation tax at the time of the registration of the sale deed of the house so purchased and has also paid commission and legal expenses in connection with the purchase of the, house. The Tribunal further records that whole of the purchase consideration has been paid by the assessee and not even a single penny has been contributed by the wife in the purchase of the house. The Tribunal also noted the argument that the property was purchased by the assessee in the joint names with his wife for shagun purpose and because of the fact that the assessee was physically handicapped. The Tribunal further concludes that as a matter of fact, the assessee was the real owner of the residential house in question. 9. On the aforesaid facts, we are of the view that the conditions stipulated in section 54F stand fulfilled. It would be treated as the property purchased by the assessee in his name and merely because he has include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing exemption. We also find judgments of other High Courts giving the benefit of section 54F(1) of the Act when the house of the assessee is purchased jointly with his wife. In the case of CIT v. V. Natarajan [2006] 287 ITR 271 (Mad), though this case was decided in relation to section 54 of the Act, the said section is in pari materia of section 54F(1) of the Act. Likewise, the Punjab and Haryana High Court in the case of CIT v. Gurnam Singh [2010] 327 ITR 278 (P H) took the same view while discussing the provisions of section 54 of the Act which is again in pari materia of section 54F(1) of the Act. (Emphasis supplied) 10. We also find merit in the submission of the learned counsel for petitioner that the re-assessment has been initiated on the basis of change of opinion, which is not permissible. There is no new information available with the respondent to re-assess the LTCG claim. The AO had considered the same documents during the earlier assessment proceedings and was satisfied with the claim of LTCG made under Section 54 of the Act. 11. The petitioner is entitled to claim exemption under Section 54 of the Act on these admitted facts, as the conditions stipul ..... 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