TaxTMI 
TaxTMI 
2025 (6) TMI 1834
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....- which fetches capital gain tax payable in the year under consideration. However, the Assessing Officer on verification of ITR and other records, noticed that the assessee had neither disclosed any capital gain as per sec. 2(14) of the Act on the sale of the said immovable property nor provided any details of such capital gains in his return of income filed in ITR-4S. 3. Based on the aforesaid facts, Ld. Assessing Officer initiated proceedings u/s. 147 by issuing notice dated 31.03.2021 u/s. 148 of the Act after taking prior approval of the ld. PCIT as per provisions of section 151 of the Act. The statutory notice dated 31.03.2021 issued u/s. 148 and subsequent notice issued u/s. 142(1) with questionnaire dated 15.11.2021 stood un-responded by the assessee. The assessee, however, submitted his reply dated 20.02.2022 in response to notice u/s. 142(1) dated 24.12.2021, which as per Assessing Officer, was not found satisfactory. Thereafter, show cause notice dated 19.03.2022 was issued to the assessee, in response to which the assessee submitted his reply dated 21.03.2022, stating that the appellant/assessee had sold residential properties No. 15/28, 15/29 and 15/30 registered in ....
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.... extent of Rs. 9,31,060/- (sale consideration of Rs. 8,50,000/- plus Stamp Duty of Rs. 81,060/-) pertaining to purchase of first new residential house property No. 19/180, Tila Ammeri Khan, Ghati Mamu Bhanja, Agra, treating it as a new residential house property, but disallowed the balance claim of Rs. 28,04,546/- made by the assessee with respect to purchase of second new property No. 19/1, situated at Tila Ajmeri Ghati Mamu Bhanja, Agra consisting of 4 shops and one room, treating it as a commercial property and added the same to the total income of the assessee, vide assessment order dated 30.03.2022 passed u/s. 147 r.w.s. 144 and 144B of the Act. 7. Aggrieved, the assessee preferred an appeal before the ld. CIT(Appeals), who dismissed the appeal on the premise that during the A.Y. under consideration, the assessee was entitled for claim of deduction in respect of only one residential house property purchased within the stipulated period, where as in the year under consideration, the assessee had claimed deduction in respect of two separate and distinct properties, which as per Assessing Officer and conveyance deeds are sold by different sellers and situated at different loca....
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....invalid and bad in law and are in gross violation of provisions of section 151A of the Income Tax Act. 6-BECAUSE, upon the facts and in overall circumstances of the case the appellant denies its liability as per Impugned Assessment order as the same has been passed without complying to the provisions of section 144B of the Income Tax Act. 7-BECAUSE, upon the facts and in overall circumstances of the case the ld Commissioner of Income Tax (Appeals) NFAC was wrong and unjust in confirming the addition made by the ld Assessing officer without properly appreciating the facts of the case and ignoring the submission made and evidences filed during the course of assessment and appellate proceedings. 8-BECAUSE, upon the facts and in overall circumstances of the case the ld Commissioner of Income Tax (Appeals) NFAC was wrong and unjust in confirming the amount of long term capital gain wrongly computed by the Ld Assessing officer, taking incorrect amount of sale, cost of acquisition and indexed cost of acquisition into consideration while calculating the amount of long term capital gain. The Ld AO also failed to appreciate the fact that the share of the Assessee i....
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....he ground that one of the properties purchased is commercial property, whereas the nature of the property mentioned in the sale deed dated 04.02.2014 is residential. Learned AR has further submitted that the share of the assessee in the residential house sold by sale deed dated 29.08.2014 was only 50%, whereas the Revenue has computed the capital gain on 100% sale consideration. Prayed to set aside the impugned order and allow assessee's claim u/s. 54 of the Act in respect of the same. 12. Learned DR has submitted that the Revenue has already allowed benefit of section 54 in respect of one of the residential properties No. 19/180, Tila Ajmeri, Ghati Mamu Bhanja, Agra whereas the purchase deed dated 04.02.2014 with respect to second property No. 19/1, Tila Ajmeri, Ghati Mamu Bhanja, Agra specifically shows that there are 4 shops built at ground floor with one room at top floor, hence, the property not being residential, the assessee's claim u/s. 54 in respect of this commercial property has rightly been denied by the impugned order. 13. It is pertinent to give findings on the aforesaid issues formed on the basis of 11 grounds raised in the appeal. We first take up the point No....
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.... escaped assessment amounted to or was likely to amount Rs. 1,00,000/- or more. In the instant case, ld. Assessing Officer found that the income/sale consideration of Rs. 45,00,000/- under the head capital gain, which was not depicted in assessee's ITR, was surely over one lakh rupees. Hence, notice dated 31.03.2021 issued u/s. 148 of the Act before six years from the end of the assessment year 2015-16, falls within the time limit prescribed u/s. 149 of the Act of the old regime. 16. It further transpires from the perusal of the assessment order that prior approval of the jurisdictional Principal Commissioner of Income-tax was taken in accordance with section 151 of the Act of the old regime before initiating assessment proceedings u/s. 147/148 of the Act. Learned AR has, though, mentioned that such approval was casual and in a mechanical manner, however, failed to elaborate the same. The assessee has not made any efforts to procure the said approval either through the process of this Tribunal or by any other mode available under law. Hence, it cannot be accepted that the approval/sanction was given in a casual or mechanical manner by the sanctioning authority. 17. As regards....
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...."residential house" is not specifically defined under the Act, but the legislative intent makes it clear that the nature and usage of the property are key determinants of the true character of the said property. The property should not be predominantly commercial in character. In the present case, the immovable property in question admittedly consists of four shops at ground floor and one room at first floor, which is also substantiated by the conveyance deed dated 04.02.2014 submitted by the assessee through his paper book. In common parlance, shops are not capable to be characterized as residential house. Based on the composition and functional usage of the property, it is evident that the property purchased by the assessee was predominantly commercial in nature. The presence of a single room at the first floor of the commercial structure does not alter the dominant character of the property as the same is expected to be used for incidental and ancillary activities/for commercial purposes. The primary usage and income generation from the property appear to be from commercial activity and not from residential house, thereby disqualifying the eligibility of capital gains for exempt....