TaxTMI 
TaxTMI 
2022 (10) TMI 477
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.... framed under section 144/148 dated April 20, 2015 also kindly be quashed. 3.1 Rs. 20,80,533 : The learned Commissioner of Income-tax (Appeals) erred in law as well as on the facts of the case in enhancing the long-term capital gain of Rs. 10,74,200 and confirming the addition of Rs. 10,06,333 made by the Assessing Officer on account of long-term capital gain despite the fact that the investment was made by the husband of the assessee in the property and the resultant profit from the same has been declared in his return of income. The addition so made, confirmed and enhanced by the learned Commissioner of Income-tax (Appeals) is totally contrary to the provisions of law and facts on the record and hence the same kindly be deleted in full. 3.2 The learned Commissioner of Income-tax (Appeals) further erred in law as well as on the facts in confirming the denial of deduction of Rs. 10,06,333 claimed under section 54F invested in the new house. The denial of deduction so claimed and confirmed by the learned Commissioner of Income-tax (Appeals) is totally contrary to the provisions of law and facts on the record and hence the same kindly be deleted in full. 4. The learned Assessin....
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....y him in his return of income. The Assessing Officer, however, disagreed with the reply of the assessee, stating that since the property is in the name of the assessee, the capital gain should be assessed in her hands only, and thus, made addition of Rs. 10,06,333 on account of long-term capital gain (however, granted the benefit of indexed cost of acquisition of Rs. 15,03,667). The Assessing Officer further observed that since the new property was in the name of the husband, hence exemption under section 54 cannot be allowed. Being aggrieved, the assessee preferred an appeal before the learned Commissioner of Income-tax (Appeals). The learned Commissioner of Income-tax (Appeals) issued notice under section 251(2) dated November 23, 2017 for enhancement of income. In response, the assessee furnished reply vide written submissions dated December 21, 2017 and January 3, 2018, the same were considered but could not find favour with the learned Commissioner of Income-tax (Appeals). Finally, he dismissed the appeal of the assessee by observing as under : "I have gone through the assessee's submission and the Assessing Officer's findings. 1. The documents in respect of the ho....
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....the appellant is that the husband had taken housing loan from LIC for this purpose. However, from a perusal of the returns filed by him he was shown income from SOP (being the property under consideration here at 815 Mahaveer Nagar-I) which means this property was self-occupied/vacant so to show income from this on notional basis means he had rental income from the other property on which the loan could have been taken. This point was never neither clarified by the Assessing Officer nor examined. Hence in the absence of any such cogent evidence that the amount claimed as loan from LIC was invested in the property under sale (here in this appeal) at 815, Mahaveer Nagar-I, the benefit of indexation was therefore not to be allowed to be indexed. Further, if this was the only property, which was sold in November 2009, where did the appellant reside in the intervening period of construction on the new house because as per agreement dated October 22, 2009 for reinvestment, the purchased property at A-33, Jaishree Vihar, Ladpura, Kota was only a plot measuring 30 x 54 = 1620 sq. ft. only for Rs. 2,50,000 no rental expenses for the whole year or period where the construction was under pr....
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....g Officer on account of long-term capital gain. The denial of deduction of Rs. 10,06,333 claimed under section 54F was also denied. The learned authorised representative appearing on behalf of the assessee submitted that the assessee has sold property situated at 815, Mahaveer Nagar-I, Kota, the details of which are available on record for a consideration of Rs. 25,00,000 on November 19, 2009 which was valued by Sub-registrar at Rs. 25,10,000 whereas the resultant capital gain was not offered for taxation on the ground that since the said property was purchased by the husband of the assessee in her name and all the funds were arranged and invested by the husband, thus he was the actual owner of the property and, therefore, resultant capital gain was offered by him in his return filed on October 11, 2010 and also claimed exemption under section 54 of Rs. 11,00,000. This fact was noted down by the Assessing Officer. However, he disagreed and made addition of Rs. 10,06,333 by granting relief of indexation and also denied exemption under section 54 of the Income-tax Act by holding that the new property was purchased in the name of husband whereas in fact new property was purchased in t....
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.... of various years are enclosed. Following construction in the assets side and loan from LIC in the liability side. Also kindly refer paper book pages 117-112 wherein statement of repayments and repayment certificate issued by LIC in the name of Shri Satya Narain Agarwal is enclosed. Please refer pages 8 and 9 of the Commissioner of Income-tax (Appeals) order where W/S reproduced. Husband showing rental income : Shri Satya Narain Agarwal has been showing rental income from the subjected property since assessment year 2006-07, when it was first earned, up till assessment year 2010-11 when it was sold (refer paper book pages 102 to 107). The same was even assessed by the Department during various years in his return of income is as follows : A.Y. Amount (Rs.) ROI Dated 2006-07 90,000 3-8-2006 2007-08 96,000 26-6-2007 2009-10 1,20,000 20-8-2009 2010-11 90,000 11-10-2010 Thus, Shri Satya Narain Agarwal's name has been showing the subjected property in his books all this while. Moreover, he was offering rental income from the said property since long and the Department has also been accepting the same happily. Thus, now when the assessee is disclosing capital aga....
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....ellant only. The Revenue if permitted, shall not be going to gain anything extra inasmuch as the tax rates at both the heads are same. On the contrary, it will result into double taxation of same income. Alternatively, if the Revenue wishes to consider the subjected property in the hands of the appellant only then the taxability of long-term capital gain and rental income should have been considered in her hand only by suitably modifying the assessments made in the case of husband. Double taxation not permissible : The admitted facts are that Shri Satya Narain Agarwal (the husband of the assessee) has duly disclosed the long-term capital gain arising from the sold property in his return of income filed on dated October 11, 2010 (paper book 105-107) for the assessment year 2010-11 because he was the real and sole buyer of subjected property and the Department has happily accepted and assessed the same. The husband of the assessee also claimed exemption under section 54 in his return of income which was also accepted and assessed by the Department. Clubbing of income : The assessee acted in accordance with the Act : 5. Section 64 talks about clubbing of income, which is reprod....
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....e material available on record and gone through the orders of the authorities below. The learned authorised representative has specifically argued that the assessee was only an ostensible owner whereas the actual beneficiary was her husband. It was also submitted that the assessee had not invested any amount in the purchase of the property and the entire investment was made by the husband of the assessee Shri Satya Narain Agarwal and in support of the same, the assessee had filed affidavit which is at paper book pages 82-83. It was also submitted that the appellant was not even as "assessee" under the Income-tax Act when the property was purchased and had no income of her own. According to the learned authorised representative, all the investments were made by the husband and shown in his books of account. It was submitted that the cost of construction was carried out by the husband was also borne by him and in this regard he has taken loan from LIC of Rs. 8,00,000 and was paid off by him. Our attention was also drawn towards repayment certificate at paper book pages 117 to 122. It was also submitted that Shri Satya Narain Agarwal was also showing rental income from the subjected p....
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....her husband contrary to law. The learned Commissioner of Income-tax (Appeals) had rightly decided the issue of claim of indention by holding that there is no basis with the Assessing Officer to allow the claim of indexation in the hands of the assessee because the Assessing Officer was under impression that husband of the assessee had invested in purchase as well as construction of the house whereas both the factual position are not arising out of the facts mentioned before the tax authorities. Since the purchase of the property was exclusively in the name of the assessee in 1994 and there is no evidence on record of any joint names or later inclusion of her husband's name in the same and further there is no evidence on record that the purchase consideration was paid by the husband, therefore, we are of the view that the indexation amount was payable in the hands of the assessee herself. As regards the claim of construction on the said property is concerned, in this regard the claim of the assessee is that the husband of the assessee had taken housing loan from the LIC for this purpose. However, from the record and the perusal of returns filed by the husband of the assessee, he....