2017 (11) TMI 2028 - AT - Income Tax

LTCG - sale of immovable property - Co-ownership - said plot was ancestral property and all the four brothers were equally eligible to share th share in the sales proceeds during the year - HELD THAT - This property was distributed among the 7 members and Shri Dhansukhbhai became the registered part owner of the said property - When the property was sold to Karamtaa Steel Pvt. Ltd. and assessee and two brothers and legal heirs of 4th brother are the co-owners. We also find from the sale deed wherein all the assessee and three brothers name are mentioned in the sale deed. AO is not justified in adding the Long Term Capital Gain in the hands of the assessee. Therefore, we are of the opinion that AO and CIT(A) are not justifying this. We allow the appeal of the assessee and restore this issue to the file of AO and is directed to verify whether the sale proceeds received was distributed amongst co-sellers of the property and co-sellers have filed their individual returns. The AO is directed to verify the same and allow the claim. Ground allowed for statistical purposes. Deduction u/s 80C - HELD THAT - As assessee did not file anything before us also, therefore we confirm the finding held by the Ld. CIT(A). In the result, appeal on this ground is dismissed.

Summary

Issues:
1. Reassessment based on presumption and surmises without furnishing reasons recorded for reopening.
2. Adoption of market value for LTCG calculation under section 50c.
3. Addition of LTCG without considering taxes paid by co-owners.
4. Addition of LTCG without issuing notice under relevant sections.
5. Basis of addition of LTCG - substantive or protective.
6. Deduction of Rs. 1,00,000 under section 80C.
7. Interest charges under sections 234B & D and initiation of penalty under section 271(1)(c).

1. Reassessment based on presumption and surmises:
The appeal was filed against the order of the Commissioner of Income Tax (Appeals) relevant to the assessment year 2012-13. The appellant challenged the reassessment, arguing it was based on presumption and surmises without furnishing the reasons recorded for reopening. However, this ground was not pressed during the hearing.

2. Adoption of market value for LTCG calculation under section 50c:
The Assessing Officer adopted the stamp duty valuation under section 50c for calculating Long Term Capital Gain (LTCG) on the sale of immovable property. The appellant contested this valuation, stating the property was ancestral and belonged to four individuals, including the appellant. The property was sold in the appellant's name, but the sale proceeds were to be shared equally among the co-owners. The Tribunal found that the AO's addition of LTCG in the appellant's hands was not justified, considering the property's history and ownership structure.

3. Addition of LTCG without considering taxes paid by co-owners:
The appellant argued that all co-owners, including the appellant, had shown their respective shares of LTCG in their returns. The AO added the entire LTCG without considering this fact. The Tribunal observed that each co-owner had calculated and paid taxes on their share of LTCG individually. The Tribunal, supported by legal precedents, held that the AO's approach was unjustified.

4. Addition of LTCG without issuing notice under relevant sections:
The appellant contended that the AO did not issue summons to co-owners before making any enquiry. The Tribunal noted the lack of summons and found that the AO had added LTCG in the appellant's hands without considering the co-owners' individual returns. The Tribunal emphasized the importance of proper verification and individual assessments in such cases.

5. Basis of addition of LTCG - substantive or protective:
The Tribunal directed the AO to verify whether the sale proceeds were distributed among co-sellers and if individual returns were filed by co-sellers. Citing a decision of the Jurisdictional High Court, the Tribunal allowed the appeal and instructed the AO to ensure proper verification and distribution of sale proceeds among co-sellers.

6. Deduction of Rs. 1,00,000 under section 80C:
The appellant's claim for deduction under section 80C was not supported with any additional information during the hearing. Consequently, the Tribunal confirmed the finding of the Ld. CIT(A) and dismissed the appeal on this ground.

7. Interest charges under sections 234B & D and initiation of penalty under section 271(1)(c):
The Tribunal partially allowed the appeal, addressing various grounds related to LTCG additions, deductions under section 80C, and directing the AO to verify the distribution of sale proceeds among co-sellers. The judgment was pronounced on 16.11.2017, with different outcomes for each issue raised in the appeal.