TaxTMI 
TaxTMI 
2015 (4) TMI 43
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....apital gain on sale of urban agriculture land of Rs. 38,05,558/- against which the assessee invested Rs. 36,00,000/- in bond issued by national highway authority of India and claimed deduction u/s. 54 EC of Rs. 35,30,058/- ( duly restricted) after taking benefit of indexation from 1980-81. On verification of submission made by the assessee, Sale deed of the land it is notice that during the F.Y. 2007-08 the assessee with others had sold urban Agriculture Land of Rs. 6,85,00,000/-. The assessee has requested to furnish the abstract of 7/12 in respect of sold land. The AR. of the assessee vide his letter dated 26.10.2010 submitted the copy of-sale deed as well as copy of 7/12 and also Form NO.6 i.e. the proof of ownership of the said land. The Form no 7/12 of the F.Y. 2006-07 generated through software of the Govt. of Guj'araf dated 07.08.2010 vide Sr. NO.3274052 and abstract of form 6 which was registered on 19.03.2007 vide Registry No. 6697 (Copies are forming part of the order hence enclosed with the assessment order). It is also noticed by the undersigned that Smt. Diwaliben Chunilal, W/o. Shri Chunilal Devidas was expired on 8.10.1992. After that, Shri Chunilal D. Patel, fat....
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....rned to the office of the undersigned with remarks "LEFT" by the postal authority. Though the earlier notices as well as the show caused notice dated 15.11.2010 which were served upon him on the address mentioned on the return of income filed by the assessee for the A.Y. under consideration. The inspector of this office has been deputed for the service of the aforesaid notice which has been served accordingly. However, the assessee vide his submission dated 02.12.2010 which have been received by this office on 02.12.2010 in which the assessee asked for the adjournment for 3 to 4 days which has been granted and the hearing is reaffixed on 08.12.2010. In response to the said notice the asses sees vide his reply dated 09.12.2010 which have been submitted in the tapal of the office of the undersigned is reproduced as under: - The assessee has not denied for the proposed addition as per the sec. 48(iii) on which the show caused issued. The assessee is only objected in his reply dated 09.12.2010 regarding the year of acquiring the property and for that, the assessee now submitted further evidences like Form N0.6 dated 08.11.1983 vide entry No. 2940. In the said evidence, it is mention....
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.... by issuing notice u/s. 133(6) of the IT. Act through the inspector working in the office of the undersigned as well as from the sale deed it is very much cleared that, the ownership of the land is of only 5 (Five) persons. So the amount received on sale of the land is distributed among them only as per the proportionate shares. The assessee has having the share of 1/6th in the said property. So the assessee has taken plea .that, the amount received from the total sale proceeds and invested by his family members are exempted u/s. 54 of the I.T Act is not correct, as the ownership of the property is belongs only to the assessee and not of his family members. So, the distribution' of the amount, amongst the family members before the making payment of LT.C.G. is not correct as per the Income fax Act. Moreover, the assessee shown the amount of sales consideration is a/so wrong. Looking to the share of the assessee in the land, the assessee has been received of Rs. 1,14,16,667/-( 1/6th share of Rs..6,85,00,000/-) where in the reply the assessee mentioned that he alongwith his family members has received Rs. 1,13,95,000/-, Therefore, there is no doubt about the share of the assess....
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....that the said land being ancestral property, each coparcener had share in this property and upon division, the 1/6th share was divided between the appellant and his two sons in accordance with the principles of Hindu Law. Thus, the appellant had rightly claim 18th share in this property. If may be noted that both the other co-owners, Shri Jagdish Patel and Shri Shailesh Patel are assessed to fax and have filed their return of income for A.Y. 2008-09 declaring the capital gain in respect of this property. The copy of statement of income with ack Are enclosed herewith. As regards the quantifications of capital gains, the appellant submits that AO has allowed exemption u/s 54EC in respect of investment in NHAI Capital Gains Bond for Rs. 36 lakh, however, when the entire 1 /6th share is to be taxed by AO in the hands of the appellant, the exemption claimed u/s 54 by the said two co-owners should also be allowed to the appellant. Shri Jaddish Patel has claimed investment in house property and CGS Bank Deposit, aggregating to Rs. 35,30,058 whereas Shri Shailesh Patel has claimed exemption u/s 54 and investment in NHAI totaling to Rs. 35,22,833/-. The same is evident from the computation ....
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....s third-party confirming the deal. On this basis alone, Assessing Officer treated assessee's share at 1/6 as against 1/18 declared by assessee. As Assessing Officer ignored following facts while reaching above conclusion - i. in relevant 7/12 record for agricultural land with revenue officer, name of assessee along with his two sons namely- Jagdish Ramanlal and Sailesh Ramanlal were there since 21.06.2005 much before the sale of property in question. This was an evidence of ownership of assessee along with his two sons. In view of above, the share of property in the name of assessee's sons cannot be treated as assessee. ii. name of assessee's sons along with sons of assessee's brothers are mentioned in conveyance deed as party on the third part confirming the deal. iii. payment of sale consideration is separately made to each of the co-owners including assessee's sons. Assessee only received 1/18th of total consideration received on transfer. iv. assessee's both the sons have declared the capital gain on account of transfer of this land in respect of their 1/18 share. Therefore it is clear that the share of assessee is only l/18th and remaining 1....