TMI Blog2023 (8) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... essed as long term capital asset and the building has to be assessed as a short term capital asset for the purpose of levy of capital gains tax. Following the above decisions similar view has been taken in the case of JCIT vs. Ashok Kumar Arora. Therefore, even if we accept the alternative claim of the assessee that capital gain has to be computed on land and building separately the position in the assessee s case. Even if capital gain computed on the land and on the building separately as a long term capital asset and as a short term capital asset respectively still there is no liability arises on the assessee to pay additional tax on account of capital gains. We direct the AO to allow indexation on cost of acquisition and cost of improvement while computing the long term capital gain as was done in the case of the co-owner and the assessee s brother Shri Harsh Bansal. Appeal of assessee allowed. - Shri Narendra Kumar Billaiya, Accountant Member And Shri Challa Nagendra Prasad, Judicial Member For the Assessee : Shri Gautam Jain, Adv. For the Revenue : Shri Vizay B. Vasanta, CIT DR ORDER PER C.N. PRASAD, J.M. This appeal is filed by the assessee ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dividual filed his return of income on 24.07.2019 declaring total income of Rs. 60,24,620/- comprising of long term capital gains of Rs. 59,10,401/- and income from other sources at Rs. 1,24,222/-. The Assessing Officer in the draft assessment order passed u/s 144C of the Act dated 29.09.2021 denied long term capital gain claimed by the assessee in the absence of copy of purchase deed of the property, bills, vouchers, etc. to prove the cost of improvement as the assessee did not furnish the details as called for by the Assessing Officer. The long term capital gain declared by the assessee at Rs. 59,10,401/- was denied and the Assessing Officer computed the long term capital gain at Rs. 1,13,39,599/- on the sale of property. Accordingly a draft assessment order was passed. The assessee filed his objections before the DRP along with various details including purchase deed, sale deed, copy of bank statements, copy of approval from Municipal Corporation of Delhi for construction of the building and provided the details of cost of construction and contended that the land on which the construction was made constituted long term capital asset since the land was acquired in 1979 and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of capital gain is long term capital gain. Ld. Counsel submits that it is apparent from the draft order of assessment that the floors sold after construction are long term capital asset since the land on which the floors has been constructed and sold held for as long as 40 years. It is submitted that learned Assessing Officer therefore computed long term capital gain on the sale of three floors in the instant year. It is submitted that the only dispute before DRP was to the computation of long term capital gain whereby the learned Officer had denied the cost of acquisition being fair market value of property as on 01.04.2001 and cost of improvement on the said property after indexation, which has now been accepted and no more in dispute. It is also submitted that mere fact that the floor were constructed after demolition of the old super structure does not alter the nature of capital gain i.e. long term capital gain particularly when identical claim stands accepted in the case of brother of the appellant namely Sh. Harsh Bansal. 7.1 The Ld. Counsel for the assessee further referring to page 32 to 38 of the PB which is the assessment order dated 26.11.2021 passed u/s 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Vimal Chand Golecha and the Hon ble Madras High Court in the case of Dr. B.L. Ramachandran Rao, held that the land has to be assessed as long term capital asset and the building has to be assessed as a short term capital asset for the purpose of levy of capital gains tax. Following the above decisions similar view has been taken by the Hon ble Delhi High Court in the case of JCIT vs. Ashok Kumar Arora [161 Taxman 101]. Therefore, even if we accept the alternative claim of the assessee that capital gain has to be computed on land and building separately the position in the assessee s case emerges as under: - Statement of computation of capital gain on the land and on the building separately as a long term capital asset and as a short term capital asset Particular As per return of income (Land Building) Land Building Nature of capital asset Long term capital gain Long term capital gain Short term capital gain Sales Consideration 1,72,50,000 1,30, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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