TMI Blog2022 (11) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... e find convincing force in the submissions of assessee. Hence, the appeal of the assessee is allowed. So far as the objection of case of co-owner, no scrutiny assessment was initiated, is concern, we find that this fact was brought by assessee at the earliest possible action. Revenue has not taken any action for reopening the case of co-owner and thereby accepted the capital gain and exemption on same transaction, therefore, the assessee cannot be treated indifferently for similar transaction. Thus, the objection raised for the revenue is not acceptable to us. Hence, the ground of appeal of the assessee is hereby allowed. - ITA No.631/AHD/2019 - - - Dated:- 7-10-2022 - Shri Waseem Ahmed, Accountant Member For the Assessee : Shri Parin Shah, A.R For the Revenue : Shri Atul Pandey, Sr. D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-5, Ahmedabad, dated 26/02/2019 arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . expenses of Rs. 8,93,050/- only. As per the AO the cost of purchase of furniture cannot be made part of cost of acquisition of sold out property. Similarly, cost of construction for new property cannot be included in the amount of exemption under section 54 of the Act as the same is incurred for purchase of the new property. Likewise certain misc. expenses incurred for purchase of new property was not supported by documentary evidences. Thus the AO, re-worked the value of capital gain and exemption under section 54 of the Act and made addition of Rs. 29,27,396/- in the following manner: Sr.No. Description Amount Rs. Remarks 1 Residential Unit 48,00,000/- As per deed, it is constructed. Page No.12 is photo copy of property,. It complete Unit. 2 Stamp Duty 2,35,500/- 3 Registration Charges 48,500/- 4 Brokerage 48,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by observing as under: 3.4 I have carefully considered the assessment order, ground of appeal, submission made by the appellant and material available on record. It is seen that the appellant sold one property jointly held, having 50% share, for Rs.1,90,00,000/- and got Rs.95 lakhs. It is seen that after considering all documents and material available on record, the A O calculated 50% share of the appellant at Rs.39,81,604/- in the property allowing cost of acquisition of sold out property after considering land cost and cost of construction at Rs.79,63,208/-and calculated long term capital gain in the hand of the appellant at Rs.55,18,396/-. 3.5. The AO further considered the investment made by the appellant for the purchase of new property and after allowing the stamp duty, registration charge and brokerage and society transfer calculated the exemption u/s.54 of Rs.51,82,000/- having 50% share of the appellant of Rs.25,53,000/- and thus determined the long term capital gain at Rs.29,27,396/- . 3.6. The AO allowed the investment in the purchase of new property for calculating the exemption u/s 54 of the Act and further construction in newly purchased property was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity before making addition. The ld. DR vehemently supported the order of the authorities below. 10. We have heard the rival contentions of both the parties and perused the materials available on record. The AO, reworked value of capital gain and exemption claimed under section 54 of the Act by disallowing certain items from the cost of acquisition. We note that property was sold and new property was purchased jointly by the assessee with Shri Yogesh N Patel being 50% shareholder and 50% of sale consideration was received by him/ Yogesh N Patel. 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 of his co-owner who declared similar capital gain and claimed similar exemption. The return of the co-owner has been accepted by revenue under section 143(1) of the Act. Therefore, in our considered view when, the long term capital gain and exemption claimed by the co-owner has been accepted, then the assessee cannot be treated indifferently. In this regard we find support and guidance from the order of coordinate bench of this tribunal in case of M. Ambalal Desai v. ITO [IT Appeal No. 187 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of the assessee's share comes to Rs. 4,16,314. Indexed cost as per section 48 of the Act is worked out at Rs. 24,22,947/-. As per stamp duty authority the assessee's share being 6.25% of sale value in the property comes to Rs. 25,56,310/-. Thus Capital Gain comes to Rs. 1,33,363/-, which was taxable in the hands of the assessee. The Capital Gain of Rs. 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-ownercasei. e. Smt. Prabhaben Harshadrai Desai, relevant part of the assessment order is extracted below;: 3. On perusal of records and details submitted by the assessee it was found that the assessee was co-owner having share of 6.25% in the property sold for Rs. 2,00,00,001/- on 19-1-2009 situated at Survey No. 86, L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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