2022 (11) TMI 409 - AT - Income Tax

Addition on account of re-computation of capital gain - AO reworked value of capital gain and exemption claimed u/s 54 of the Act by disallowing certain items from the cost of acquisition - HELD THAT - We note that property was sold and new property was purchased jointly by the assessee with Shri Yogesh N Patel being 50% shareholder and 50% of sale consideration was received by him/ Yogesh N Patel - assessee has placed on record copy of application dated 22-12-2011 along with the copy of return of income with computation of total income of his co-owner who declared similar capital gain and claimed similar exemption. The return of the co-owner has been accepted by revenue u/s 143(1) of the Act. Therefore, in our considered view when, the long term capital gain and exemption claimed by the co-owner has been accepted, then the assessee cannot be treated indifferently. We accept the contention of assessee that once, the similar LTCG offered and exemption claimed by the co-owner has been accepted by the Revenue, then the assessee is also entitled for similar relief. We find convincing force in the submissions of assessee. Hence, the appeal of the assessee is allowed. So far as the objection of case of co-owner, no scrutiny assessment was initiated, is concern, we find that this fact was brought by assessee at the earliest possible action. Revenue has not taken any action for reopening the case of co-owner and thereby accepted the capital gain and exemption on same transaction, therefore, the assessee cannot be treated indifferently for similar transaction. Thus, the objection raised for the revenue is not acceptable to us. Hence, the ground of appeal of the assessee is hereby allowed.

Summary

Issues Involved:

1. Confirmation of addition of Rs. 29,27,396/- on account of reworking of calculation of cost of acquisition for sold property and property for which exemption under section 54 of the Income Tax Act was claimed.
2. Allowance of cost of fixed furniture and documentation charges as cost of improvement.
3. Allowance of all costs incurred for the purchase of new property under section 54 of the Act.
4. Legality of the assessment order.
5. Charging of interest under section 234B.
6. Initiation of penalty proceedings under section 271(1)(c).

Issue-wise Detailed Analysis:

1. Confirmation of Addition of Rs. 29,27,396/-:

The assessee sold a property and claimed a long-term capital gain exemption under section 54 of the Income Tax Act. The Assessing Officer (AO) reworked the cost of acquisition by excluding the cost of furniture and certain construction expenses, leading to an addition of Rs. 29,27,396/-. The AO justified this by stating that the cost of furniture and construction expenses cannot be included in the cost of acquisition for the purpose of exemption under section 54. The CIT(A) upheld the AO's decision, stating that the assessee failed to provide sufficient evidence to support the inclusion of these costs.

2. Allowance of Cost of Fixed Furniture and Documentation Charges:

The assessee argued that the cost of fixed furniture and documentation charges should be considered as part of the cost of improvement. The AO and CIT(A) disallowed these costs, citing lack of evidence and supporting bills. The CIT(A) noted that the furniture was not shown to be permanently fixed and could not be considered as a cost of improvement.

3. Allowance of All Costs Incurred for Purchase of New Property:

The assessee claimed that all costs incurred for the purchase of new property should be allowed under section 54. The AO and CIT(A) disallowed certain miscellaneous expenses due to lack of documentary evidence. The CIT(A) further noted that section 54 allows exemption for either the purchase or construction of a new property, not both.

4. Legality of the Assessment Order:

The assessee contended that the assessment order was illegal and should be quashed. However, the CIT(A) upheld the AO's order, finding no illegality in the assessment process.

5. Charging of Interest under Section 234B:

The assessee argued that the charging of interest under section 234B was unjustifiable. This issue was not specifically addressed in the detailed judgment, as the primary focus was on the capital gain and exemption claims.

6. Initiation of Penalty Proceedings under Section 271(1)(c):

The assessee contended that the initiation of penalty proceedings under section 271(1)(c) was unjustifiable. This issue was also not specifically addressed in the detailed judgment.

Judgment Summary:

The tribunal noted that the co-owner of the property, who had a similar capital gain and exemption claim, was treated differently by the Revenue. The co-owner's return was accepted without scrutiny, while the assessee's claim was disallowed. The tribunal found this to be against the principle of equality and held that the assessee should not be treated differently from the co-owner. The tribunal referred to the case of M. Ambalal Desai v. ITO and other relevant case laws to support its decision. The tribunal concluded that the assessee is entitled to similar relief as the co-owner and allowed the appeal, deleting the addition of Rs. 29,27,396/-.

Conclusion:

The tribunal allowed the appeal of the assessee, holding that the assessee should be treated similarly to the co-owner who was granted the exemption. The addition of Rs. 29,27,396/- was deleted, and the assessee's grounds of appeal were accepted. The judgment emphasized the principle of equality in tax treatment for similarly situated taxpayers.