TaxTMI 
TaxTMI 
TaxTMI 
2015 (4) TMI 47
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....is no meaning in applying cost as of Accounting year 2003-04 as HUF Income is added is to be deleted." 1.1 Later on, the Appellant has also raised an additional ground as under: Without prejudice to the above three grounds, in any case, the Lower Authorities erred in computing the taxable Long Term Capital Gain by taking the sale consideration in the hands of the assessee at Rs. 13,33,333/- when in fact the Sale Deed specifically mentions that he gets the sale consideration of Rs. 4,00,000/- only, and therefore, the calculation of the taxable capital gain of Rs. 11,71,597/- which is far much more than the actual sale consideration of Rs. 4,00,000/- is patently bad in law." 2. At the outset, learned A.R., Mr. J.P. Shah has informed that considering the additional ground now raised and ground no.3 being dependent upon the additional ground. The grounds no.1 and 2 are not pressed. 3. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) dated 21.12.2011 were that the Assessee in individual capacity has filed a return of income at Rs. 1,82,280/-, however the assessment was completed on the assessed income of Rs. 12,84,474/- after making an addition of ....
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....y after the receipt of notice from Income Tax Department. The return of income in the HUF capacity has been furnished on 21/09/2011. The said return is to be treated as non-est as the same has not been furnished within the stipulated time provided u/s 139 of the IT Act and hence no cognizance of the said return is to be taken. All this sequence of events proved that the property belongs to assessee's Individual and therefore long term capital gain arising out of the sale of the above property is to be taxed in the hands of Individual. As per family tree furnished by the assessee, the assessee is having only 1/6th share received from Babulal Group in the said property. The assessee acquired rights in the said property on the death of Shri Rohitkumar Babulal on 19/02/2004 and therefore the cost of acquisition is to be considered for F.Y.2003-04 of 463 u/s.49 r.w.s. 48(iii) of the Act." 3.3 In respect of determination of the year of cost inflation index, the AO has discussed as under: "Cost inflation index for the year in which the asset is transferred /(Divided By) ~ Cost Inflation Index for the first year in which the asset was held by the assessee or [ for the year beginning on t....
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....irst Appellate Authority, learned CIT(A) has upheld the action of the AO in the following manner: "2.4 I have carefully considered the facts of the case and the submissions made by the appellant and the arguments taken by the A.O. The written submissions made by the appellant indicate that the appellant has contested the both the cost of acquisition adopted by the A O as well as the taxation of the capital gain in his individual capacity. As far as the controversy regarding cost of acquisition is concerned, from the perusal of grounds of appeal raised at para-2.1 above, it would be seen that the appellant has not challenged the action of the A O through any ground of appeal and hence no adjudication is required to be made to the controversy. As far as the action of the A O of taxing the amount of money as capital gains in the hands of the appellant is concerned, the same has been found to be a legally correct action. The Id A O has rightly pointed out that the P.A. No. used for the registration of the documents is that of appellant as an individual and not as HUF and hence legally the seller of the property is the individual and not the HUF. I have gone through the English version....
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....i Harish Babulal is also blessed by children. So, the argument of the Assessee is that the property was not acquired in the Year 2003 but it was acquired way back after the death of his father hence the cost of acquisition index as on 1.4.1981 was to be applied by the AO. For this legal proposition, he has placed before us today a computation of capital gain as under: "Fair market value of the entire property on 01.04.1981 according to the Valuation Report of registered valuer M.C. Dalai on page 53 of the paper book. Rs.44,93,000/- Value of assessee's 1/6th share of the assesse therein on 01.04.1981. Rs. 7,48,833/- Indexed cost thereof is 7,48,833 x 582/100 Rs.43,58,208/- Capital loss is (Rs.43,58,208 Less Rs. 13,33,333/- Rs.30,24,875/-" 5.2 Mr. Shah has placed reliance on a decision of Hon'ble Gujarat High Court pronounced in the case of CIT Vs. Gautam Manubhai Amin, 38 taxmann.com 42 (Guj.) wherein it was decided as under: "6. Heard Shri K.M. Parikh, learned advocate appearing on behalf of the Revenue and considering the material on record and the impugned order passed by the learned ITAT as well as the order passed by the CIT(Appeals), the question which is....
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....perty; Ld. DR has pleaded. 7. We have heard both the sides at some length. We have perused the orders of the authorities below in the light of a short compilation filed before us. On perusal of the sale deed stated to be registered on 27th of March, 2009 we have noted that the executors of the sale deed were the family members of the Assessee. Meaning thereby the Assessee was not the only seller of the property but the property in question was sold jointly by all the members of the family. The property in question was sold for a consideration of Rs. 80 lac. 8. It is worth to mention at this stage that although we have found that the property in question was inherited by the Assessee but we are not going to disturb the status under which the assessment was completed. The assessment order was passed by the AO in the "status of individual" which is not going to be disturbed especially when ground no.1 and 2 are not pressed by learned A.R. before us. With this legal finding now we proceed hereinbelow. 9. The next issue is as per ground no.3 raised before us that whether the Revenue Authorities were correct in adopting the index price in A.Y.2003-04 instead of 1.4.1981. In this regar....
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....ion is required to be adopted as on 1.4.1981, i.e., 100 instead of 463 as alleged by the AO. Since, the family tree was not disclosed in the assessment order therefore, at this stage of second appeal it is not clear that whether the dates as mentioned were verified by the AO or not. The only reference which we have noticed is in paragraphs 3, 4 & 5 of the sale deed. Therefore, the AO is required to investigate this issue in the light of the dates mentioned in the said registered sale deed, especially, the date of death of the father of the Assessee. If it is found to be prior to 1.4.1981 then naturally the year of inheritance shall be held as 1.4.1981 for the purpose of fixation of cost indexation. With these remarks this issue raised as per ground no.3 of ground of appeals is restored back for denovo adjudication. This ground may be treated as allowed but for statistical purpose only. 9.1 An another issue has been raised through additional ground which pertains to the cost of acquisition. The cost on one hand, as AO had adopted at the figure of Rs. 1,28,666/-; but on the other hand the Assessee had adopted Rs. 7,48,833/-. As far as the claim of Assessee is concerned, reliance was....