TaxTMI 
TaxTMI 
2021 (8) TMI 959
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....s, the Assessing Officer observed that assessee has escaped his liability to pay tax on long term capital gain arising out of sale on immovable property i.e. open land. On query, the assessee explained that the assessee society was merely acting as a facilitator and the capital gain on the sale of property was belonged to the individual members who were the real owners since the investment was made by those individual members. It was further submitted that the impugned capital gain was fully disclosed in the return of income of the individual member and in the case of the 4 members, the cases were selected for scrutiny and assessment were finalized u/s. 143(3) of the Act. In these four cases, the Assessing Officer have accepted the long term capital shown in the return of income The assessee has submitted that these facts indicate that the department has accepted that the gain from the sale of land was rightly shown in the return of income by the individual members. In this regard, the assessee has also enclosed the copies of assessment order passed in the case of individual members for the assessment year 2015-16. The Assessing Officer has not agreed with the submission of the ass....
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....ntion that all such four assessment orders u/s. 143(3) have been issued in the jurisdiction of JCIT, Range-3(3), Ahmedabad. The scrutiny orders accepting the impugned capital gains have been issued in following cases: Babubhai P. Patel Vaishali B. Patel Madhuben Patel Babubhai Patel - HUF The facts have been perused once again as per ratio laid down in the case of Jute Corporation of India Ltd. - 187 ITR 688 (SC). The factual position emerges as is indicated in the chart below:- Name of the Assessee Share Cert. No. Amt of Share cont Share Cost Indexed Cost Sale Value Capital Gain Exemption Net Gain Total Income Tax Paid Babu bhai Patel 12 250 16.26 1200000 2622653 19512000 16889337 15889337 0 784920 79294 Babu bhai Patel HUF 15 250 16.) 1240000 2726797 20163000 17436203 17436203 0 712210 69465 Ketan Patel 13 250 10.84 800000 1753665 13008000 11254335 5000000 6254336 750730 1614002 Ketan Patel HUF 16 250 6.78 500000 1090166 813 0000 7039834 7039814 0 407320 1620....
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....on ofRs. 1.65 crores plus two flats measuring 2250 soft. In tact the payment of cheques is made by Hash by issuing cheques in the name of individual Member and not the Society. This fact stands admitted because assessee has filed a return declaring capital gaain against part money received against his plot. Thus it becomes clear that it is the individual member who are liable to tax in respect of transfer to plots and the Society being only a facilitator of Post Office Some more details have been discussed in this respect while adjudicating the appeal of Punjabi Coop House Building Society Ltd. in ITA No, 310/Chdf20l2 and 556/Chd/2012 which have been adjudicated little later in this order itself. Accordingly we find no force in the submissions and this ground is rejected." The appellant also invited my attention to the circular of the CBDT No, 9 dated 25.3. 1 969 wherein it has been instructed as under: "1 . Instructions were issued in 1955 to the effect that in the case of tenant co-partnership cooperative housing societies, the income from each building should be assessed in the hands of the individual members to whom it had been allotted, notwithstanding the fa....
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....judicated as the overall decision would take care of such procedural matters. In view of above facts and the ratio laid down in the case laws (supra), the addition made by the AO is not sustainable. Therefore, the addition made by AO is hereby deleted. The ground No.1 to 4 of appeal is allowed." 5. During the course of appellate proceedings before us, the ld. Departmental Representative has relied on the order of Assessing Officer. On the other hand, ld. counsel has filed paper book comprising detail and copies of document furnished before the lower authorities during the course of assessment and appellate proceedings. The ld. counsel has supported the order of ld. CIT(A). 6. Heard both the sides and perused the material on record. Without reiterating the facts as elaborated above in this order, the Assessing Officer has taken a view that the long term capital gain on sale of plot of land to be taxed in the hands of the assessee society whereas the assessee pleaded that such long term capital gain will be taxable in the hands of the members of the assessee society who were the real owners of the land. The Assessing Officer has made impugned addition of Rs. 11,55,30,8....