9911796707
TMI Blog2022 (6) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... tionale basis and therefore the same may to be sent back to the file of the AO for assessing the correct amount of capital gain after making necessary reference to the DVO for ascertaining the fair market value of the plot as on the date of sale as well as on 1.4.1981 - HELD THAT:- We find merits in the contentions of the assessee that the addition made by the AO is just on the basis of presumptions and assumptions without any valid basis. Accordingly we set aside the issue to the file of the AO with the direction to refer the matter to DVO for ascertaining the fair market value of the plot as on the date of sale as well as on 1.4.1981 and compute the long term capital on the basis of said report after affording reasonable opportunity of he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was no provision in the Act to compute the deemed gain in respect of assets of the firm upon reconstitution retirement of a partner. We also note that a specific provision was inserted by Finance Act, 2021 w.e.f. 1.4.2021 providing for making such deemed addition on account of capital gain upon retirement of a person from the partnership firm which are applicable for AY 2021-22 and not to the year under consideration. Accordingly we set aside the order of ld CIT(A) and direct the AO to delete the addition. Appeal of assessee allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has shown nil capital gain on the sale of said plot by taking the FMA as on 1.4.1981 without any basis. The order of the AO was confirmed by the Ld. CIT(A) by passing a very cryptic order. 5. After hearing the parties and perusing the material on record and also impugned order, we note that the AO has computed short term capital gain on sale of plot titled deed no. 1369 of 2011 which was sold for a consideration of Rs. 17 Lakhs having the stamp value of Rs. 21,60,004/- as per Stamp Valuation Authority. The assessee had 1/4th share in the said plot which was acquired on 17.05.1978 with a price of Rs. 20,000/-. The assessee computed long term capital gain at nil whereas the AO computed assessee's share being 1/4th of the long term c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e confirmation of addition of Rs. 1,29,329/- by Ld. CIT(A) as made by the AO on account of long term capital gain on sale of plot. 7. Since the issue raised by the assessee in ground no. 3 is similar to ground no. 2 wherein the AO has computed the capital gain on the basis of presumptions and assumptions by taking the value of plot measuring 16405.125 sq. ft on estimated basis. Consequently we restore the issue to the file of the AO as the same direction to ascertain the fair market value as on the date of sale as well as on 1.4.1981 by referring the matter to the DVO and accordingly assess the long term capital gain falling to the share of the assessee. Ground no. 3 is allowed for statistical purpose. 8. The issue raised in ground nos. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assets of the firm could be subjected to taxation in the hands of the assessee partner who retired from the year by taking deemed sale consideration as per provision of Section 50C of the Act. 11. The Ld. A.R. vehemently submitted before us that the AO has grossly erred in making the addition on account of short term capital gain in the hands of the assessee who retired during the year w.e.f 15.1.2011 and was having a share of 12.5% in the profits of the firm. The Ld. A.R submitted that there was no provisions on the Statute providing for calculation of deemed capital upon retirement of partner and specifically referred to section 9B of the Act which was brought on the Statute book by Finance Act, 2021 w.e.f 1.4.2021 which is applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te asset cost which fall to the assessee's share was calculated at Rs. 10,38,460/- and thus calculated the short term capital gain at Rs. 70,30,31,460/- which was added to the income of the assessee. We have also perused the provisions of Section 9B and also analysed the arguments made before us by both the Parties and find that there was no provision in the Act to compute the deemed gain in respect of assets of the firm upon reconstitution retirement of a partner. We also note that a specific provision was inserted by Finance Act, 2021 w.e.f. 1.4.2021 providing for making such deemed addition on account of capital gain upon retirement of a person from the partnership firm which are applicable for AY 2021-22 and not to the year under consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
