9911796707
TMI Blog2023 (8) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Additional/Joint/Deputy/Commissioner of Income Tax/Income Tax Officer, National Ase- Assessment Centre, Delhi ("AO") has erred both in law and on facts in determining total income of the appellant at Rs. 1,04,15,420/-as against declared income of Rs. 60,24,620/- in an order of assessment dated 22.7.2022 under section 143(3) read with section 144C(13) of the Act. 2. That the learned AO/DRP has further erred both in law and on facts in determining the short term capital gain on sale of capital asset in the instant year by denying indexed cost of acquisition and indexed cost of improvement claimed by the appellant. 2.1 That finding of the learned DRP that "floors came into existence in FY 2018-19 and were sold within the same financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order on 22.07.2022, wherein the Assessing Officer examined all the evidences furnished and accepted the claim of the assessee in respect of cost of improvement and cost of acquisition. However, the Assessing Officer computed the short term capital gain on the sale of property both land and building under the head "short term capital gain" at Rs. 1,03,01,202/- without allowing indexation. 7. The Ld. Counsel for the assessee submits that in the year 1978, property located at B-1/116, Paschim Vihar, New Delhi was purchased by Late Sh. Sunder Lal Bansal, father of the assessee. That on account of demise of Late Sh. Sunder Lal Bansal, on 21.1.2011, the property was equally transferred to two sons namely Sh. Pradeep Bansal and Sh. Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 143(3) r.w.s. 144C(3) of the Act for the AY 2019-20 in the case of assessee's brother Shri Harsh Bansal who is the co-owner of the property having 50% share submits that the Assessing Officer has accepted the asset sold by the assessee as long term capital asset and accordingly computed the long term capital gains with indexation. 8. The Ld. Counsel without prejudice to the above contentions that the entire asset is to be treated as long term capital asset, submits that at best capital gain on land and building has to be computed separately. Reliance was placed on the decision of the Kerala High Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w is supported by the decision of the Punjab & Haryana High Court in the case of Jaswant Rai vs. CIT (supra). 12. We further noticed that in the case of CIT vs. Smt. Laxmi B Menon the Hon'ble Kerala High Court agreeing with the judgments of the Hon'ble Rajasthan High Court 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 alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2%) 1,06,21,936/- 80,06,813/- (75.38%) 26,15,123/- (24.62%) 1,06,21,936/- 80,05,536/- (75.31%) 26,23,995/- (24.69%) 1,06,29,531/- As could be seen from the above computation it is evident that 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. In the circumstances allowing the appeal of the assessee, 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. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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