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TMI Blog2020 (4) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... e of another assessee. In this context it was held by Hon ble Apex Court that such a differential treatment on the same set of facts was not permissible in law. The same view was taken by the Hon ble Supreme Court in the case of Berger India Ltd. [ 2004 (2) TMI 4 - SUPREME COURT] In the instant case, the assessee has adopted the FMV as on 01/04/1981 based on the valuation reports of two chartered engineers and is not without any basis - in the hands of one of the co-owners (Shri Thinkal Govind Kumar) the computation of long term capital gains calculated by him which was identical to the LTCG computed by the assessee was accepted in scrutiny assessment. Long term capital gains computed by the assessee needs to be accepted. - Appeal of the assessee is allowed. - I.T.A. No.671/Coch/2019 - - - Dated:- 25-2-2020 - Shri George George K., Judicial Member For the Assessee : Shri R. Krishnan, FCA For the Revenue : Shri Mritunjaya Sharma, Sr. DR ORDER PER GEORGE GEORGE K.,JUDICIAL MEMBER: This appeal at the instance of the assessee is directed against the order of the CIT(A), Trivandrum dated 04/10/2019. The relevant assessment year is 2006-07. 2. The gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4425*150 = 6,63,750 (A) Indexed cost in the year of sale 6,63,750*497/100 = 32,98,838 The building was constructed by Late Dr. M.G. Krishnan in the financial year 78-79. The approximate estimated cost of construction in the Fin. year 80-81 is ₹ 400/Sq. Ft. Total plinth are of the building = 1400 Sq. Ft. Estimated cost of construction 1400*400 = 5,60,000/- (B) Indexed cost in the year of sale F.Y. 05-06 5,60,000*497/172= 27,83,200/- An amount of nearly ₹ 5 lakhs was spent on the building for major repairs due to leakage and for changing of wardrobes and a few doors and windows during the Fin. Year 1989-90. (C) Indexed cost in the year of sale F.Y. 05-06 5,00,000*497/172 = 14,44,767 (D) Total indexed cost of building (B+C) = 42,27,967 (E) Total indexed cost of Land Building (A+D) = 75,26,805 (F) Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction @ ₹ 400/- per Sq. Ft. As per the CPWD rates the cost of structure is approximately Rs .684 per Sq. Metre. Since the building is a residential house, the cost of fully completed residential building can reasonably be estimated as ₹ 2,053/- per Sq. Metre including the cost of Wood Work, Door Frame, Flooring Sanitary. Electrical fittings, etc. which comes to ₹ 191 per Sq.Ft which is taken as ₹ 200 per Sq. Ft. including allowance for supervision, etc.. The cost of construction during FY 80-81 is adopted @₹ 200 per Sq.Ft. and the cost of the building comes to ₹ 2,80,000/-. Indexed cost of construction 2,80,000*497/100 = 13,91,600 L.T. Capital Gain on building (55,44,075 -13,91,600= 41,52,471 (B) The assessee has contended that repairs were made to the building during the FY 89-90 at a cost of ₹ 5,00,000/- The assessee has produced copies of certain bills etc. in respect of this claim. The total of all the bills does not exceed ₹ 20,000/- and the biggest bill is the one dated 18-10- 1989 stated to be issued by Creative Manneouim Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee reads as follows:- 4.4. During the appeal proceedings, the learned AR did not explain how the method adopted by the Assessing Officer for computing the LTCG is erroneous. No evidence was produced in the appeal proceedings to contradict the findings of the Assessing Officer. Considering these facts, the LTCG computed by the Assessing Officer is upheld and the grounds raised by the Appellant are dismissed. 6. Aggrieved by the order of the CIT(A), the assessee has filed this appeal before the Tribunal. The Ld. Counsel for the assessee has filed paper book enclosing the valuation reports of two chartered engineers and a brief written submission. The written submission filed by the assessee is essentially submissions reiterated before the income tax authorities. Further, the learned AR had produced a copy of assessment order u/s. 143(3) of the I.T. Act of one of the co-owners of the impugned property wherein computation of LTCG by co-owner (which is identical to computation made by assessee in this case) was accepted by the AO. 7. The Ld. DR submitted that the assessee filed the return of income for the assessment year 2006-07 without disclosing the long term capital g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of impugned property, namely, Smt. Indira Krishnan (mother of the assessee) and Shri K. Krishnan (brother of the assessee), the learned DR submitted that there was no information as regards the fate of computation of LTCG of the impugned property. The liabillity of long term capital gains cannot differ between the co-owners of a property. Even though there is no res judicata in tax proceedings, the principle of consistency has to be applied. The Hon ble Supreme Court in the case of Union of India Others vs. Kaumudini Narayan Dalal and Another (249 ITR 219) was considering an issue whether it is open to revenue to accept a judgment in the case of one assessee and appeal against identical judgment in the case of another assessee. In this context it was held by Hon ble Apex Court that such a differential treatment on the same set of facts was not permissible in law. The same view was taken by the Hon ble Supreme Court in the case of Berger India Ltd. (266 ITR 99). 8.2 In the instant case, the assessee has adopted the FMV as on 01/04/1981 based on the valuation reports of two chartered engineers and is not without any basis. Further, in the hands of one of the co-owners (Shri T ..... 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