9911796707
TMI Blog2019 (6) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... med Long Term Capital Gain (LTCG). The assessee furnished the working of capital gain in the following manner: Date of sale 10.06.2010 Rs. 41,00,000/- Fair market value as on 01.04.1980 Rs. 78,000/-, date of purchase 22.03.1980 with indexation @ 711/100 Rs. 5,54,580/- Rs. 35,45,420/- Deduction u/s 54 Investment of Rs. 41,00,000 Date of investment 31.07.2010 Rs. 41,00,000/- Long term capital gain Nil 3. During the assessment, the Assessing Officer asked the assessee to substantiate his claim. The assessee filed its reply dated 26.11.2013. In the reply, the assessee stated that he has sold a residential flat jointly owned with his mother. He has destroyed all its electricity bills, society maintenance bill, as he was of the opinion that he has already sold his flat, therefore, he is not required to maintain such old record. Only last maintenance of electricity bill for June 2010 was furnished. The assessee further stated that he has handed over the original share certificate to the purchaser and copy of which is not kept. The Assessing Officer after perusal of electricity bill concluded that the bill is in the name of assessee. The Assessing Officer issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of Mrs. Malati Apte. This document has no legal sanctity as the flat has not been sold on registered document such as sale-deed or purchase-deed. The bill issued by Municipal Authority like electricity bill, property tax does not confirm the fact that the property was jointly owned by assessee and his mother. 5. Thus, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us by raising the following grounds of appeal: 1. The learned CIT(A) erred in facts and law in confirming the addition of Rs. 35,45,420/- made by the learned assessing officer by treating the entire sale proceeds of Rs. 82,00,000/- on sale of flat as accruing and arising to the appellant when the appellant was only 50% owner of the flat and the balance 50% share belonged to his mother, Malati Apte. 2. The learned CIT(A) failed to appreciate the evidence establishing the joint ownership of Malati Apte, with the appellant consisting of the following (a) The Purchase agreement in which the name of Mrs. Malati Apte was included (b) The General Power of Attorney executed by the person from whom the appellant and his mother had purchased the flat, which containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the said purchasedeed along with initial signature of all the parties, the name of assessee and his mother are mentioned as a transferor. This fact was also confirmed by society in membership form. In respect to the enquiry conducted by Assessing Officer, the society furnished the copy of share certificate and memorandum on transfer, wherein the name of assessee and his mother are duly recorded. The society also issued a letter to the collector of stamp, which clearly established the fact that assessee and his mother, both were members of society. The Assessing Officer not appreciated the documentary evidences furnished by assessee and included the entire sale proceed in the computation of capital gains in the hand of assessee. During the assessment, the assessee also furnished the share certificate in the name of Dhananjay Hemant Kelkar, who was original owner of the flat along with memorandum of transfer recording the transfer entries. The Assessing Officer not appreciated the fact that initially, the memorandum of transfer dated 28.02.1998, in the record of the society contained the name of Smt. Malati Apte (Mother of assessee) the society added the name of assessee and hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . DR further submits that the Assessing Officer as well as ld. CIT(A) considered the documentary evidence furnished by assessee. In the agreement to sale dated 22.03.1980, the name of mother of assessee was inserted subsequently i.e. after execution of agreement to sale. The agreement to sale is a type document; however, the name of mother of assessee is inserted by handwriting. The document produced i.e. agreement to sale by assessee is a manufactured and self-serving document. 9. We have considered the rival submission of the parties and have gone through the order of authorities below. The Assessing Officer while passing the assessment order, made addition of Rs. 35,45,420/- on account of capital gain to the total income of assessee. Before making addition, the Assessing Officer noted that assessee claimed to have sold a residential flat which was jointly owned by him and his mother and 50% of sale proceeds was offered for taxation in his own hand. The assessee was asked to substantiate his claim and to prove the joint ownership. The assessee filed his reply dated 26.11.2013. In reply, the assessee stated that he do not have the electricity, society and receipts which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cknowledged the application of mother of assessee about the mutation/transfer of flat in her name. Copy of General Power of Attorney dated 4th August 1986 in the name of assessee and his mother, agreement to sale dated 22.03.1980 in the name of assessee and his mother is inserted by handwriting. Copy of receipt of consideration for purchase of said flat dated 17th October 1980 for Rs. 18,000/- and copy of agreement to sale for sale of the flat executed by assessee and his mother dated 11.06.2010. 11. On sale of said residential flat, the assessee as we1ll as her mother received equal (50% each) of sale consideration. The copy of Demand Draft/Banker's cheques received by assessee and his mother is also placed on record. The Assessing Officer has not disputed the fact that mother of assessee offered the gain received by her on sale of said residential flat. Narrow dispute before us is if the assessee was also joint owner of the said flat. The bone of contention on which revenue as well as assessee locked their horn is the agreement to sale dated 22.03.1980. In the said agreement to sale the name of mother of assessee is inserted by handwriting and necessary corrections were made in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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