9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (9) TMI 1174 - AT - Income TaxComputation of long term capital gain assessable - assessment in the hands of co-sharer - land of the assessee as situated within 8kms. from municipality - Held that - The value of the property ought to be taken at ₹ 39,36,290/- as on 1.4.1981 after giving benefit of indexation, which value would come to ₹ 2,48,77,353/- and capital gain come in the share of the assessee would be only ₹ 40,880/-. Apart from the above, we have been appraised ourselves with the latest order of the AO computing the capital gain in the hands of a co-sharer. Two co-owners cannot be treated differently for the same transaction. Therefore, we are of the view that addition made by the AO in the hands of the assessee is not sustainable. We allow the appeal of the assessee partly and direct the AO to take taxable capital gain in the hands of the assessee at ₹ 40,880/- equivalent to the one assessed in the hands of Shri Dashrathbhai Somabhai Prajapati, the other co-sharer. In view of the above discussion, appeal of the assessee is partly allowed.
Issues Involved:
1. Reopening of assessment under sections 147/148 of the Income Tax Act, 1961. 2. Computation of long-term capital gain. 3. Geographical location of the land and its classification as a capital asset. 4. Validity of reference to the District Valuation Officer (DVO) under section 55A for valuation as on 1.4.1981. 5. Consistency in treatment of co-owners in similar transactions. Detailed Analysis: 1. Reopening of Assessment: The assessee did not advance arguments on the issue of reopening, and thus the Tribunal did not examine whether the reopening was justified. 2. Computation of Long-Term Capital Gain: The assessee filed a return declaring a taxable income of ?1,74,530/-. The Assessing Officer (AO) discovered that the assessee was a co-owner of agricultural land sold for ?2,49,99,993/-, with the assessee's share being ?83,33,331/-. The assessee claimed that after indexation, the cost of acquisition would be ?2,48,77,353/-, resulting in a net capital gain of ?40,880/-. The AO, however, referred the matter to the DVO, who valued the land at ?3,15,000/- as of 1.4.1981, leading to an addition of ?76,69,731/- in the assessee's income. The CIT(A) upheld the AO's computation. 3. Geographical Location and Classification as Capital Asset: The assessee argued that the land was beyond 8 kms from the municipality as per the CBDT notification dated 6.1.1994, and thus should not be considered a capital asset under section 2(14)(iii)(b). However, the CIT(A) considered the AO's report, which confirmed that the land was within 8 kms of the Ahmedabad Municipal Corporation, making it a capital asset subject to capital gains tax. The Tribunal found no merit in the assessee's contention. 4. Validity of Reference to DVO: The assessee contended that the reference to the DVO under section 55A was invalid because the valuation adopted by the assessee was higher than the fair market value. The Tribunal referred to the Gujarat High Court's rulings in CIT Vs. Gauranginiben S. Shodhan and CIT Vs. Manulaben M. Unadkat, which held that such references were not permissible if the value claimed by the assessee was more than the fair market value. The Tribunal concluded that the reference to the DVO was bad in law, and the capital gain should be computed based on the assessee's valuation of ?39,36,290/- as on 1.4.1981, leading to a taxable capital gain of ?40,880/-. 5. Consistency in Treatment of Co-owners: The assessee highlighted that in the case of a co-owner, the AO accepted the valuation as on 1.4.1981 based on the same registered valuer's report. The Tribunal agreed that co-owners should not be treated differently for the same transaction. Consequently, the Tribunal directed the AO to compute the taxable capital gain for the assessee at ?40,880/-, consistent with the treatment of the co-owner. Conclusion: The appeal of the assessee was partly allowed. The Tribunal directed the AO to compute the taxable capital gain in the hands of the assessee at ?40,880/-, aligning with the computation for the co-owner. The reopening of the assessment and the geographical location issues were not found in favor of the assessee, but the reference to the DVO was deemed invalid.
|
