TaxTMI 
TaxTMI 
2024 (9) TMI 198
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....lgorithm for allocation of cases of three different assessees having common interest in a single property to a single assessing officer for assessment. Hence, omission of addition in cases of other two co-owners of the property wherein assessees is an owner may be because of lack of proper care and the diligence. This cannot be a reason for deletion of addition made. * The NFAC erred in not considered that the assessee himself has admitted in grounds no. I of appeal that even if the deemed rent is taxable, the assessing officer ought to have added Rs.39.33,917/- (1/3 of 1,18,01,752) since he is a co- owner having 1/3 share in property. In above manner, the assessee has disputed only taxable share of deemed rental income in assessee's hand however, the NFAC has deleted the addition in entirety. * The Led. NFAC has erred in allowing assessee's ground related to treatment of LTCG offered by the assessee at Rs.25,75,90,104/- as STCG at Rs. 29,76,76,017/- on the ground that there was no addition made in the case of other two co-owners of the same property for the same assessment year. The NFAC has not considered that the assessments of three different co-owners were complete....
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....order of the CIT(A) on three counts. a. NAFC has erred in deleting the addition of Rs 1,81,01,752/- on account of deemed rental income from the flats owned by assessee, these flats were allotted to assessee as a result of joint development agreement. b. NAFC has erred in taxing capital gain as Long Term Capital Gain (LTCG) declared by assessee instead of Short Term Capital Gain (STCG) as assessed by AO. c. NAFC has erred in deleting the addition of Rs 4,75,590/- made by AO on account of rental of plant and machinery. 4. The brief facts of the case are that the assessee, an HUF filed its return of income on 30.11.2020 declaring an income of Rs.2,75,83,189/-. Thereafter the assessee revised its return of income on 25.03.2021 by declaring an income of Rs.27,51,54,480/-. The assessee has entered into a Joint Development Agreement (JDA) with one Brigade Enterprises Ltd. for development of his lands which were earlier used by the assessee for agricultural purposes. During the course of assessment proceedings. The AO observed that the assessee has received rental income in respect of plant & machinery from one entity. The AO observed that the assessee has not reflected this income ....
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....e assessee, observing that the assessee in his case has held the flats for sale and not for self-occupation and has ultimately sold the flats in subsequent years. The ld. CIT(A) was of the view that no material has been brought on record by the AO for concluding that the flats were to be used by the assessee for self-occupation. The ld. CIT(A), relying on the judgement of the Hon'ble Mumbai Bench of the Tribunal in the case of Sachin R. Tendulkar v. DCIT [2018] 172 ITD 266 (Bom) allowed the appeal of the assessee. Besides this, the ld. CIT(A) was also of the view that the AO is not correct in discriminating the assessee from the other two co-owners who were also part of the JDA and in their hands no addition qua deemed rental has been made by department. Similarly, the ld. CIT(A) allowed the appeal of the assessee on the issue of short term capital gain of long term capital gain. The relevant findings of the ld. CIT(A) are as under: - "7.8.4 I have perused the documents on record and it is seen that the facts and circumstances of the case under consideration as well as the facts and circumstances of the case of other two co-owners are similar. In respect of the remaining two ....
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....ial) were received on 24.06.2017 & 28.12.2018 and Occupancy Certificate (Final) was received on 25.06.2019. The assessee has sold the flats. The flats, in question, are undoubtedly in the nature of capital assets. Since, the asset itself has come into existence only after final occupancy certificate is received, the asset does not qualify the holding period for the treatment of those assets as long term capital assets. In light of the above, the gain arisen from sale of capital assets cannot be treated as long term capital assets and will be subject to tax under the head "Short Term Capital Gain"," As against the long term capital gain offered by the appellant of Rs. 25,75,90,404/-, the AO computed the short term capital gain of Rs. 29,76,76,017/-." 7. The ld. CIT(A) also observed that for AYs 2014-15 and 2015-16 the cases of the assessee were assessed u/s. 143(3) of the Act and the department treated the gain under similar facts as long term capital gain. Therefore, in view of the principle of consistency also the ld. CIT(A) allowed the appeal of the assessee. So far as the last issue as to the taxation of income from flat instead of plant and machinery the CIT(A) held that the....
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.... relied upon by the Ld DR in the case of Dimple Enterprise(supra) is a decision rendered in completely different set of facts as in that case the unsold flats were kept as stock in trade. However, in the present case neither such facts are there nor the DR has argued that the assessee has been keeping these flats as stock in trade. Therefore, the decision relied upon by the Ld DR is not applicable to the facts of the case at hand. 11. In respect of the second issue whether the gain arose to the assessee on sale of flats would be long term capital gain or short term capital gain, we observe that the assessee has sold flats, in which land component is also embodied. Undisputed facts are that assessee has acquired the land somewhere in 1960 and the rights in flats, allotted to assessee has been accrued on 15-12- 2010 and other was entered on 19.06.2013, when the Joint Development agreements were entered into by the assessee. No material has been brought on record by the AO or by DR before us to refute these factual observations made by the NAFC. Further in AYs 2014-15 and 2015-16. The gain attributable to this land was earlier assessed by the department as long term capital gain. The....