9911796707
TMI Blog2022 (5) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... declaring total income of Rs. 1,57,239/-. The case was selected for scrutiny under CASS and required notices issued and served on the assessee. In the year under consideration, the assessee had sold agricultural land at Kharadi, Pune and offered long term capital gain. This long term capital gains was only partly offered i.e. the claimed portion of his share in the land. The A.O in the absence of total or partial partition, did not agree to the apportionment of sale consideration and held that the same was not commensurate with the relevant provisions. She accordingly also did not allow the deduction claimed u/s 54B of the Income-tax Act, 1961 (hereinafter referred to as "the Act" for short) 3. The Assessing Officer observed from the Retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are and his wife and the apportionment of the sale consideration between them. The Assessee in response to the Assessing Officer's notices pointed out that he was governed as per the provisions of Sec. 6 of Hindu Succession Act and had a vested right to the property from the time of his conception as the same was joint Hindu Family property. It was also submitted that, the Assessee had agricultural income from land situated at Block No. 67 at Kharadi and from Block No. 68 Kharadi for which he had attached a copy of 7/12 extract and the sale details for reference. The Return copies/Bank Accounts was submitted stating that the Assessee had a vested equal right in the land on the basis of inheritance and as a member of lineal descendents o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. Dowell 7 co. Ltd. Vs CTO(1985) 154 ITR 148 on colourable devices and provisions of Income-tax applicable in the case. 5 The Assessing Officer noted that the solitary question for consideration was whether Shri Bhagwan Pathare was the sole owner of the land or whether his sons, daughter-in-law, grandsons and grand-daughters were entitled for sales consideration. The Assessing Officer observed from the record that the captioned land was owned by Shri. Bhagwan Pathare, Shri. Tukaram Pathare, Shri. Sopan and legal heirs of Shri. Baban Govind Pathare. The Assessee sharing land was 17 Are out of 49 Are. The vendors shown in the sale Deed were Mr. Bhagwan, Mr. Tukararn, Mr. Sopan and Sushilabai Pathare and others. The Assessing Officer pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land sold was an ancestral land and the other members had a vested right by birth as per Section 6 of the Hindu Succession Act, 1956. In light of the absence of total or partial partition, the AO did not consider the apportionment of sale consideration commensurate with the relevant provisions of the I.T. Act. Throughout the proceedings, though the Appellant did submit additional evidence in the form of a partition deed of 13-6-1994 and mutation deed the entry dated 4-9-1958, he was unable to bring on record any evidence to substantiate his claim of the land being ancestral land, The additional evidence is admitted to ensure there is no travesty of justice. I do not agree with the appellant's contention that, sec. 6 of the Hindu Succe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncle does not make it ancestral land. The mere claim without any evidence leads one to believe that the Appellant has made an attempt to use a colourable device to split the capital Gains liability. The Appellant has only emphasized on Section 6 on the Hindu Succession Act, 1956 without realizing the amendment to the Act brought about by the State of Maharashtra in the year 1995 and all India in the year 2005, which also includes the daughters as co-partners. The Appellant, it is stated has two daughters but has not clarified why their share was not demarcated. Even if presuming, but not accepting that the said land was ancestral land there could be no apportionment without a partition. In the Appellant's case there has been no partitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment which the Appellant has made u/s.54B." 7. Before us, the ld. A.R submitted ample evidences to demonstrate that the said land is an ancestral property where the assessee, along with his two sons has offered 1/3rd each in their returns of income. The A.O in this case has added the entire capital gain in the hands of the assessee alone though the ideal course would have been that the income should have been taxed in the hands of HUF but in this case since 1/3rd has been declared in the respective return of the assessee and his two sons, it is not therefore, justified to include the entire capital gain in the hands of the assessee alone. We are of the considered view that the A.O should assess the capital gain at 1/3rd as shown by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
