2018 (8) TMI 1771

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....47 of the Income Tax Act, 1961 (hereinafter called as 'Act') by an order dated 27.03.2015. The Assessing Officer (AO) observed that the assessee has sold property bearing No.15-10-19/2B located in TS No.143/26, Maharanipeta, Visakhapatnam for a consideration of Rs. 7,25,000/- to Smt.Raavi Neelima and the Sub-Registrar office(SRO) value of the property was Rs. 10,25,000/-. The property sold by the assessee comprises of superstructure with RCC roof in second floor with a plinth area of 876 sft and also super structure in third floor with 300 sft. The property was acquired by the assessee from his father after his demise and subsequently, constructed the building in the said plot of land. However, the assessee has not filed the return of incom....

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....; _________________ Long Term Capital Gains : Rs.5,20,214/- B) Short term capital gains on sale of construction Portion       Sale consideration of superstructure : Rs.4,89,509/- Less : Cost of construction of superstructure   [876.06 sft (RCC) X Rs. 370 + 300 sft(ACC) XRs.230]   Rs.3,93,120/-   [Since the assessee has not furnished any documentary evidences for the cost of construction of building, the structure rates prescribed by the Manual of Stamp Duty & Registration in A.P. vide C&IG Proceedings No.MV1/10370/03, dated 14.08.2004 are adopted.]   Short term capital gains Rs.96,389/- Against the long term capital gains of Rs. 5,20,214/- and the....

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....on u/s 263. Apart from the above, the Ld.AR argued that the assessee has admitted the capital gains under 'short term capital gains' and the tax rate for short term capital gains is 30% and no indexation benefit is available. Whereas, in the case of long term capital gains, the tax rate is 20% and indexation benefit is available. Therefore, admission of income under the head 'short term capital gains' instead of 'long term capital gains' though erroneous, is not prejudicial to the interest of the revenue. Further, the Ld. AR also argued that the Ld.Pr.CIT has directed the AO to adopt the cost of acquisition of 48.67 sq.yards at Rs. 60/- per sq.yard by relying on the order of the Tribunal in the case of Smt.C.Girija Vs. ACIT-1 vide ITA No.42....

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....th the parties and perused the material placed on record, The assessee is Head Constable working in II Town Police Station, Visakhapatnam. He had sold the property located at D.No.15-10-19/2B located at TS No.143/26, Maharanipeta, Visakhapatnam for a consideration of Rs. 7,25,000/-. However, 50C value of the property was of Rs. 10,25,000/-. Since the assessee did not file the return of income, the AO reopened the assessment by issue of notice u/s 148 to verify the taxability of capital gains on account of the sale of the property. The AO issued the notices and the assessee filed the return of income and furnished the details admitting capital gains at Rs. 22,350/- under the head 'short term capital gains' and admitted the total income at Rs....

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....revenue since the tax rates under the short term capital gains are higher than the long term capital gains and no indexation benefit is available for the short term capital gains. Therefore, on this reason, the Ld.Pr.CIT is not permitted to invoke the jurisdiction u/s 263. 5.2. It is found from the assessment order that the assessee had filed the details and made the submissions in respect of computation of capital gains and the assessment was completed after examination of the details furnished by the assessee. The issue with regard to the computation of capital gains, cost of acquisition of the property, cost of construction, sale consideration and applicability of 50C were duly verified by the AO before completion of the assessment. S....

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....am. Both are different locations and the rate applied by the Hon'ble ITAT for the property at Waltair cannot be applied to the property located at Maharanipeta which are two different locations and the rates are varied in both the locations. Therefore, on this issue also, the Ld.Pr.CIT has not made out any specific case with tangible information to hold that the assessment made by the AO was erroneous and prejudicial to the interest of the revenue. Similarly, in the case of short term capital gains on sale of the superstructure, the Ld.Pr.CIT directed the AO to apply the rates as prescribed by the Stamps and Registrations Department of Andhra Pradesh vide C&IG proceedings No.MV1/10370/03 dated 14.08.2004 , instead of applying the rates as a....