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TMI Blog2021 (7) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed civil suit for declaration and cancellation of instrument of sale. Considering the facts that on common set of facts the revenue has granted relief to the co-owner [ 2021 (2) TMI 345 - ITAT SURAT ] therefore, in our view, the Revenue cannot treat the assessee indifferently as of his co-owner. - Decided in favour of assessee. Disallowance of Vehicle Expenses - disallowance of depreciation of motor vehicle and vehicle expenses by taking view that assessee has not carried out any business activities - HELD THAT:- CIT(A) after appreciating the fact that assessee has derived remuneration from three partnership firms held that depreciation on bike cannot be allowed that car is being sued by assessee for earning remuneration. The Ld. CIT(A) allowed depreciation @ 50% on Motor Car. Further the disallowance on expenses were restricted to 50% by taking view that no break up vehicle is used for earning the remuneration income. We have noted that on similar disallowances, the Revenue has allowed full relief in case of other partners of common firms. Therefore assessee cannot be treated indifferently on similar relief, therefore, this ground of appeal is allowed. - ITA No.14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation provided by the assessee the A.O. noted that the assessee along with co-owner purchased the said property on 16.04.2007 and it was sold on 15.01.2009, the assessee was having 1/4th share. The AO issued show cause notice as to why income earned on the sale consideration and received by assessee should not be treated as short term capital gain. The assessee filed its reply and stated that the sale transaction was not completed as there is dispute between seller and the purchaser. The assessee along with his co-owner still occupying the said land. The cheques of the sale consideration reflected in the sale deeds were dishonored by the bankers of the purchasers. The parties are litigating in Civil Court. On the basis of objection of assessee and his co-owner, the registration of conveyance deed was hold by Sub-Registrar. The explanation furnished by assessee was not accepted by the AO by taking view that the document was registered with the office of Sub-registrar and the assessee has received sale consideration. The AO treated the sale consideration as a short term capital gain and taxed accordingly. 3. The A.O. further also noted that in the Profit and Loss account, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liabilities in his books of accounts. The assessee is still in possession of the said property. The assessee has also filed affidavit before this Tribunal that the assessee is still in possession of the said property. 5. In second alternative submission, the ld.AR of the assessee submits that similar addition on account of short term capital gain was made against the co-owner of assessee. However, on appeal before the ld. CIT(A), in Appeal No.CAS/3/ TRFD/V/137/2014-15 dated 05.03.2015 the entire addition of capital gain was deleted. The ld.AR submits that facts in assessee s case and of his co-owners are common. The ld.CIT(A) deleted the entire addition in his co-owners by holding that AIR information can be used for the purpose of investigation and not of addition. The ld.AR placed copy of order of ld.CIT(A) Appeal No.CAS/3/TRFD/V/137/2014-15 dated 05.03.2015. 6. We have considered the rival submissions of the parties and have gone through the order of the lower authorities. We find that the assessing officer made addition on the basis of AIR information despite the facts that the assessee explained that the asset/ land is not transferred the purchaser and the assessee is st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dispute. The appellant had also filed a Civil Suit before the Civil Court. The appellant was not paid the entire sale consideration as per the Civil Suit and the cheque No. 002635 of Oriental Bank of Commerce of ₹ 2,45,625/- cheque No. 002637 of ₹ 2,45,625/- or cheque No. 002638 of ₹ 2,45,625/- and totaling Rs. 9,82,500/- were dishonored. The appellant submitted the certificates from Dena Bank and SBI regarding the dishonoring of the cheque. It is settled law that any transaction of immovable property without adequate consideration is ab-initio void. The Apex Court has upheld this issue of inadequate consideration for transfer of immovable property being an invalid transfer in the case of (1994) Suppl 2 SCC 545 BALBIR SINGH VS GURBACHAN KAUR(SC). Similar view has been upheld in the case of (1999) 3 SCC 573 VIDHYADHAR VS MANIKRAO. 8. Considering the facts that on common set of facts the revenue has granted relief to the co-owner, therefore, in our view, the Revenue cannot treat the assessee indifferently as of his co-owner. This bench on the similar submissions in case of Late Shri Mohanlal Ambelal Desai vs. ITO in ITA No.1870/AHD/2015 for A.Y.2009-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f vehicle expenses is not given in the assessment order and further allowed 50% of vehicle expenses. The ld.AR for the assessee further submits that in assessee s partners case similar disallowance was made by the Assessing Officer. However, on appeal the Ld. CIT(A) in Appeal No.CAS/3/TRFD/V/137/2014-15 dated 05.03.2015 deleted the entire addition along with the addition on account of short term capital gain. 11. On the other hand, the ld. Sr.DR for the Revenue supported the order of Ld. CIT(A). The Ld. Sr. DR submits that Ld. CIT(A) has already granted sufficient lead to the assessee, despite the fact that the assessee has not provided brake-up of vehicle expenses. 12. We have considered the rival submissions of the parties and have gone through the orders of authorities below. We have noted that the Assessing Officer disallowed the depreciation on vehicles and expenditure thereon by taking view that assessee has not shown any business activity. The Ld. CIT(A) after appreciating the fact that assessee has derived remuneration from three partnership firms namely, M/s. Shree Laxmi Traders, M/s. Surbhi Construction Co and Shree Ambica Nagar of ₹ 45,223/- held that depreci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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