TaxTMI 
TaxTMI 
2022 (5) TMI 1422
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....owever, was subsequently reopened by him on the basis of information received that the assessee had sold an immovable property along with other co-owners for a total consideration of Rs.5,11,50,000/- as per the sale deed dated 29.07.2011 (valuation for the purpose of stamp duty Rs.6,11,49,300/-) and the capital gain arising from the said sale was not offered to tax. A notice under Section 148 of the Act accordingly was issued by the Assessing Officer on 24.04.2014 after recording the reasons. Thereafter, a notice under Section 143(2) of the Act as well as 143(1) of the Act was issued by the Assessing Officer, in response to which written submission was filed by the assessee - a gist of which as given by the Assessing Officer in his order was as under:- "1. The property was sold by Shri Ganpatbhai Kevaldas Patel vide agreement for sale in the month of December, 2000 for the consideration of Rs.53,26,000/- and paid amount of Rs.3,26,000/- on the date of banakhat and balance amount of Rs.50,00,000/- in cash on various date by the buyer Shri Ganpatbhai K. Patel. The property was sold to Hamadbhai Alibhai who is party of third part in the sale deed. 2. Hamadbhai Alibhai Party at thi....
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....rising out of the sale of property as per agreement for sale has been shown by late Shri Ganpatbhai K. Patel in his return of income filed for the A.Y.2001-02. Hence, it can safely be concluded that the capital gain has not been charged in the A.Y.2001-02 at the time of transfer of property u/s.53A of transfer of property Act. Moreover, the payments were stated to have been made in cash to Shri Ganpatbhai K. Patel. However, no evidences have been furnished by the assessee. Therefore, the adjustment of Rs.53,26,000/- cannot be allowed from the sale consideration. 3. In respect of payment made to Hamadbhai Alibhai of Rs.2,29,00,000/- for surrendering his right in the land is not acceptable because the assessee has not furnished any documentary evidences regarding payment made to Hamadbhai Alibhai. In this connection, the assessee was specifically requested to produced Hamadbhai Alibhai vide show cause notice dated 10/03/2016 for verification of facts that the actual payment were made to Hamadbhai Alibhai as mentioned in the sale deed. In this connection the A.R. of the assessee as per order sheet entry dated 23/03/2016 has sought time up to 28/03/2016 for furnishing letters Hamadbh....
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....f the Act read with Section 147 of the Act on 30.03.2016. 5. Against the order passed by the Assessing Officer under Section 143(3) r.w.s. 147 of the Act, an appeal was preferred by the assessee before the learned CIT(A) and after considering the submissions made by the assessee as well as the material available on record, the learned CIT(A) deleted the addition of Rs.2,24,61,868/- made in the hands of the assessee on protective basis for the following reasons given in paragraph Nos. 5 - 5.2 of her impugned order:- "5. Ground of appeal No. 2 is against the addition of Rs.2,24,61,868/- on account of long term capital gain on protective basis in the appellant's hands. It is seen from the assessment order that the profit in respect of consideration received by the appellant's brothers and sister, namely, Naginbhai Gapatbhaipatel, HUF, Narshibhai Gapatbhaipatel, HUF and Arunaben Gapatbhaipatel has been assessed in the hands of the appellant. 5.1 During the course of appellate proceedings, the appellant has made the following submissions: "5. Addition of protective basis: 5.1 The learned AO has stated in last para of the assessment order as under: "Assessee has not fu....
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....note of the fact that the assessee's share in the property was actually 1/4th and not 1/3rd. The reasons given by the learned CIT(A) to arrive at this conclusion as contained in paragraph Nos. 4.2 to 4.2.6 of impugned order are reproduced below:- "4.2 I have carefully considered the assessment order, facts of the case and the submissions made by the appellant. The facts of the case in brief are that Shri Ganpatbhai K. Patel was the original owner of agriculture land Navi Sharat at Moje: Sarkhej, who entered into a sale transaction through banakhat dated 15.07.2000 with one Shri Hamad Ali before his death on 19.10.2010. Shri Hamad Ali further agreed to sell the property to Gopal G. Sutaria/Gopesh G. Sutaria. The land was to be converted into juni sharat for which a premium of Rs.2,85,30,000/- was to be paid vide City Deputy Collector, Ahmedabad letter No. CDC/TNC/PREMIUM/S.R.38/2010 dated 01.03.2011. The premium was been paid on behalf of the owner by the purchaser mentioned in sale deed dated 29.07.2011. The final registered sale deed was executed on 29.07.2011 ie in the A.Y.2012-13 wherein the legal heirs of Shri Ganpatbhai K. Patel put their signatures as per legal requirement.....
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....D/o. Ganpatbhai Kevaldas Patel)" 4.2.5 All the 4 legal heirs have signed as per legal requirements. As has also been mentioned in para 17 of the assessment order, the appellant is one of the four heirs of Ganpatbhai K. Patel who died intestate, therefore, her 25% of share of total consideration received can only be taxed. The appellant can't be taxed for anyone else's share of taxable income. Accordingly, she is to be taxed for 1/4th of the sale consideration. 4.2.6 I find that the case of the appellant's sister who is one of the co-owners of the property in question and is therefore based on identical facts has been decided by the ld.CIT(A), Ahmedabad vide his order No. CIT(A)-3/- Wd.3(3)(1)/152/15-16 dated 20.07.2016 wherein after a detailed discussion, it has been held that the four heirs of Ganpatbhai K. Patel, of which the appellant is one, have to be taxed in respect of the total sale consideration received at 1/4th of the same. The AO in his order has erroneously mentioned that the appellant's share would be 1/3rd. I also find that nowhere during the appellate proceedings has the appellant given any documentary evidence to establish the sale of land to Ha....
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.... a sale deed dated 28.07.2011. The capital gain arising from the said sale thus was chargeable to tax in the hands of the assessee as well as the said brothers and sister in respect of their respective 1/4th share in the individual capacity and there was no justification on the part of the Assessing Officer in taxing the share of capital gain of other three brothers/sisters of the assessee in the hands of the assessee on protective basis since they all in their individual capacity were liable to tax on their share of capital gain. As noted by the learned CIT(A) in this regard in her impugned order, Capital Gain Tax in respect of her shares was duly charged in the hands of sister of the assessee namely Arunaben K. Patel. Similarly, the share of other two owners' capital gain was chargeable to tax in their hands in their individual capacity and direction to this effect was given by the learned CIT(A) vide her impugned order to the Assessing Officer. Although the learned DR, in reply to a query raised by the Bench, has submitted that he has no information about any action being taken in the hands of other two co-owners namely Naginbhai G. Patel and Narsinhbhai G. Patel, we find merit ....
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....ale deed was executed and registered; and, as clearly mentioned in the sale deed, the transferors were the assessee and other three co-owners being the legal heir of Shri Ganpatbhai K. Patel. Shri Hamad Ali had joined the said sale deed only as confirming party and received certain amount out of total consideration as stated therein. As regards the contention of the learned Counsel for the assessee that no consideration was received by the assessee on sale of her share in the immovable property, it is observed that a sum of Rs.53,26,000/- was already received by Shri Ganpatbhai K. Patel in the past from Shri Hamad Ali and the said amount was adjusted against the sale consideration agreed between the parties as per sale deed dated 28.07.2011. As specifically mentioned in Clause 12 of the sale deed, the party of the second part i.e. assessee and other co-owners being sellers had agreed to give credit for the said amount as the amount paid up by the party of the first part i.e. purchaser on the execution of sale deed. In our opinion, it therefore cannot be said that there was no consideration received by the assessee and the other co-owners on transfer of property vide sale deed dated....
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.... record by the Department that any sale consideration over and above Rs.54,26,000/- has been received by the heirs in this case. As per para 15 of the assessment order, the issue was referred to DVO and based on the computation contained in para 16 of assessment order the LTCG is computed at Rs.5,76,16,800/-. If the total amount of Sr.No.4 to 6 above is deducted (Rs.4,57,24,000/- as per evidence on record) from the computation of LTCG based on DVO, then the four heirs have to be taxed at Rs.1,18,92,800/-. The difference of opinion between appellant and the AO is because of jantri value of Rs.6,00,49,300/- has been taken by the AO as total sale consideration as per specific provisions of section 50C of IT Act, 1961. I also don't find any objection filed by the appellant against jantri value during assessment proceedings. Hence recourse to the provisions of Sec.50C by the AO is found to be correct. As the appellant is one of the four heirs of Ganpatbhai K. Patel, it is decided that the appellant has earned taxable Long Term Capital Gain of Rs.29,73,200/- (1,18,92,800 / 4) and the same is confirmed. The appellant gets relief of Rs.5,46,43,600/-. The ground No.2/additional ground i....