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TMI Blog2022 (6) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 2009-10, the assessee along with his brother sold Plot No.34 viz. residential house to one Shri Kishor Aishiram Sewani for a consideration of Rs.1,41,21,250/-; whereas Plot No.35 open plot was sold to Mrs.Rekhaben Kishorbhai Sewani for a consideration of Rs.1,39,72,600/-. Thus, the assessee got her 50% on sale of these two plots for a consideration of Rs.1,48,58,170/-. After indexation long term capital gain was worked out at Rs.1,26,59,265/-. The assessee re-invested in new flat for a consideration of Rs.84,92,600/- and claimed exemption under section 54 and 54F of the Act, and the balance of Rs.42,00,000/- has also been invested by the assessee in the capital gain bonds. Thus, entire amount of long term capital gain has been invested in purchase of new flat under section 54 and 54F of the Act and in capital gain bonds under section 54EC of the Act. The assessee filed her return of income admitting the above capital gain on 20.7.2009 and declared a total income of Rs.1,09,210/-. The return was processed under section 143(1) of the Act, and thereafter taken for scrutiny assessment and notices under sections 143(2) and 142(1) of the Act were served upon the assessee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing plots and in my opinion utilization of purchase value of new flat is as per the scheme of the Act. The above view is upheld by the decision of Hon'ble ITAT Bench of Mumbai in the case of Smt. Anagha Ajit Patnekar Vs. Income Tax Officer (2006) 9 SOT 685 (Mumbai) wherein against purchase of property, deduction of capital gain has been claimed for second and third time. In your notice U/s 263(1) you have mentioned that they are two residential properties which are sold and I have claimed wrong deduction U/s 54F. This is far m reality and as explained earlier, there is only one residential house and property, which is an open plot and therefore, as explained above, I have claimed deduction U/s 54F." 5. However, the reply was not accepted by the ld.CIT on the ground that the assessee has not furnished any evidence in support of such contentions that residential house was constructed on one plot. The sale deed of two plots are identical and sale deed for Plot no.34 does not mention anywhere that there was residential building sold through the sale deed. From the sale deed itself apparent that both were only plots of land, though the contentions of the assessee that two diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and in law the claim has been rightly made for full Investment made'by the appellant from her 50% share in sale proceeds. (5)(a) That the learned CIT -I, Baroda has failed to appreciate and accept the detailed submissions made during proceedings u/s 263. (b) That on the facts and circumstances of the case and provisions of law as presented in the submission the proceedings u/s 263 are invalid and order u/s 263 ought to be cancelled. (6)(a) That the learned CI T-l,Baroda has erred in directing the Assessing Officer to pass a fresh order de-nova. (b) That on the facts and circumstances of the case and in law no such fresh assessment is required to be made as the same will unnecessarily prolong the proceedings." 7. The ld.counsel, Shri Manish J. Shah appeared on behalf of the assessee submitted a Paper Book wherein a copy of reply dated 2.9.2013 filed by the assessee to the show cause notice issued under section 263 of the Act, which was reproduced by the ld.CIT in his impugned order. There is one more reply dated 12.11.2013, wherein the assessee also enclosed various other documents viz. (i) copy of the property card issued by City Survey Office; (ii) copy of sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have given our thoughtful consideration and perused material available on record and Paper Book filed by the ld.counsel for the assessee. It is seen from the paper book that the assessee has made a detailed reply to the show cause notice by producing relevant document viz. sale deed; property tax receipts, copy of Income-Tax Returns for earlier years showing rental income from the above property; copies of bank accounts and copy of the Will executed by the assessee's father. Without appreciating the above documents, the ld.CIT has come to a conclusion that Plot No.34 does not mention anywhere that there was a residential building sold through the sale deed. Further, CIT absolutely erred in stating that the assessee has made 100% claim of deduction whereas she has only 50% as co-owners in the above properties and from going through the Sale Deeds both the lands are vacant lands. Thus, the above finding of the ld.CIT is not correct from the perusal of the above record. The ld.CIT has not given due credence to the reply filed by the assessee and passed this revision order. However, it can be seen from the co-owner, assessee's brother Shri Vijay Patel's case that similar deduction was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly, Co-ordinate Bench in the case of Shri Sangram J. Patel Vs. DCIT (supra) has held as follows: "12.4 It is not also out of place to mention that the assessee was the co-owner in the property along with his brother. The claim of the assessee's brother by the same AO was accepted and the deduction/exemption was allowed for the investment made by the co-owner with M/s Sharnam builders for the purchase of the property. In such a situation, we are of the view that the AO was to maintain the consistency. In simple words, the AO cannot reject the claim of the assessee whereas in the case of the brother of the assessee in the identical facts and circumstances, the same was accepted. Accordingly on this count, we are not convinced with the finding of the authorities below. Hence, we set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is partly allowed for the statistical purposes." 12. Another Co-ordinate Bench in the case of Rajeshkumar Shantilal Patel (supra) held as follows: "14. Considering the aforesaid factual and legal discussion, we accept the contention of ld. AR for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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