TaxTMI 
TaxTMI 
2013 (8) TMI 754
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....lowing Dept's appeal that the earlier CIT (A) had allowed fresh evidence had remitted the matter to A.O. on the limited point that the Agreement dated 03-12-1973 between Appellant and her husband showing Appellant was 50% owner of the property with funds contributed by her husband had not been filed before the A.O. 5. The learned CIT (A) erred in sustaining the A.O.'s order who had not limited himself to the re-examination of the said fresh evidence viz. Agreement dated 03-12- 1973 but proceeded beyond the said limit and referring to other papers such as Balance Sheets of Appellant and her husband which were not fresh evidence. 6. It is prayed that the order of CIT (A) holding appellant is not entitled to deduction u/s.54 may be reversed." 2. Impugned assessment order is dated 30/12/2010 framed under section 143(3) r.w.s. 254 of Income Tax Act,1961(the Act). The Tribunal had set aside the matter to the file of AO vide its order dated 12/3/2010, copy of which is filed at pages 13 to 17 of the paper book. The dispute was in respect of grant of exemption under section 54 of the Act with regard to sale consideration received by the assessee in respect of Khar property of which....
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....he said agreement had been filed before Assessing Officer. In fact, both' the parties agreed that the matter may be restored to the Assessing Officer for examination of the various additional evidences filed by the assessee before the CIT (A). We agree that fresh examination is necessary as the Assessing Officer had not been given opportunity in respect of the additional evidences filed before the CIT (A). We, therefore, restore this issue to the file of the Assessing Officer for passing a fresh order after necessary examination of the evidences filed before the CIT (A) and after allowing of opportunity of hearing to the assessee." 4. The another issue which was set aside by the Tribunal in the case of assessee as well as in the case of husband of the assessee was regarding a sum of Rs. 25.00 lacs which was claimed by them against long term capital gain as payment made to tenant for vacation of the property. Ld. CIT(A) has granted this relief and this issue in the case of assessee was restored back to the file of AO with the following observation. "2.1.2 We have heard both the parties, perused the records and considered the matter carefully. The dispute is regarding allowabil....
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....s assess's claim for deduction of compensation of Rs.25,00,000/- paid to tenant Shri Ramesh Bhagwandas Nichlani is held to be allowable." However, AO did not allow the claim under section 54 of the Act to the assessee as according to AO the assessee did not bring enough material on record to prove that the assessee is 50% owner of the property. According to AO sale agreement dated 3/3/2004 only showed that the assessee was owner of the land. The AO also observed that no income has been shown by the assessee from the property which was sold and also the fact that rent receivable from tenants was not offered to tax. The observation of AO for not allowing the exemption under section 54 is as under: "10.Regarding the claim of exemption of the assessee under section 54 of Rs.1,96,17,250/- the assessee had not brought enough material to prove that the assessee is a 50% owner of the property, since the recital of the sale agreement dated 03/03/2004 shows that the assessee was the owner of the land only. Also the Assessing Officer has correctly pointed out that in the balance sheet of the assessee for the year ended 31/03/2003 the assessee is shown to be the owner of the land. Also n....
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.... by the assessee and her husband in equal proportion. For the sake of convenience clauses 2 & 3 are also reproduced below: "2.While the Ground and the First Floor are let out, the Second Floor is used by Smt. Sheela and Shri Bhagwandas for their own residence. 3. In case the property is sold the net sale proceeds will be shared by the two owners in equal proportion." 8. It was submitted by Ld. AR that as in the case of husband of the assessee the AO himself had allowed exemption under section 54 on purchase of new residential property of which assessee is also co-owner of 50%. He submitted that department cannot take different stand in the case of the assessee as assessee's case is on sound footing that she is owner of the land upon which the property was constructed and which has been sold. He submitted that section 54 nowhere conveys that for the purpose of availing exemption under section 54 the seller of the property should be the owner of the said property. The main requirement is that long term capital gain has been computed in respect of transfer of a long term capital asset being building or land appurtenant thereon to the income of which is chargeable under the he....