9911796707
TMI Blog2025 (3) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... milar additions made by the AO in the hands of both persons have been deleted by the CIT(A)-10, which has been accepted by the Department. Hence, the STCG computed on the transfer of property which took place on 17.02.2014 i.e. in AY 2014-15 in the relevant year i.e. AY 2016-17 is per-se erroneous and therefore, cannot be added in AY 2016-17. Therefore, action of the CIT(A) brushing aside the relevant documents filed by the assessee cannot be countenanced and therefore, we set aside the impugned order of the Ld.CIT(A); and restore it to the file of the JAO for a limited purpose i.e. to examine the veracity of the assesse s contention that she has not made any sale/transfer of any immovable property in the relevant year i.e. AY 2016-17; and if it is found that the assessee didn t undertake any transfer/sale of immovable property in AY 2016-17, then no capital gain to be taxed in the hands of the assessee for AY 2016-17; and if it is found that the assessee along with ten (10) co-owners have sold immovable property for Rs 9.08 Crs, in AY 2016-17, then AO to assess the capital gains from such transfer of property in accordance to law; after giving opportunity to assessee. Penalty u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld.CIT(A) confirming the action of the AO making Short Term Capital Gain [STCG] addition of Rs.74,36,863/-. 3. Brief facts are that the AO has re-opened the assessment for AY 2016-17 based on the information that assessee [Smt. Prema] in the relevant assessment year (AY 2016-17) didn't file her return of income (RoI) u/s.139(1) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'), but had sold her share/interest in an immoveable property along with ten (10) other co-owners for a consideration of Rs.5,29,74,000/-, which has market value [as per section 50C of the Act] at Rs.9,08,95,000/-; and accordingly, the assessee's share/interest in the immovable property, ought to be Rs.82,63,181/- (Rs.9,08,95,000/11); and since assessee didn't offer it for taxation, the AO reopened the assessment for AY 2016-17 and framed assessment by computing Short Term Capital Gain (STCG) from the aforesaid transfer of property, after reducing ad-hoc 10% of the consideration received towards cost of acquisition from the entire income from sale of immovable property (i.e. Rs.82,63,181 minus Rs.8,26,318/-) has computed STCG of Rs.74,36,863/-, which action of the AO has been confirmed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n't file the RoI in AY 2016-17. Moreover, the Ld.AR brought to our notice that the assessee had placed before the Ld.CIT(A), contemporaneous evidences in the form of assessment orders in the case of two co-owners (assessee's sister Smt. P.Yasodha as well as Shri Parthasarathy Varadhan) in whose cases, assessments had undergone scrutiny in respect of the very same transaction, i.e., their assessments for AY 2014-15 was re-opened and re-assessment were framed, wherein the AO had examined the same transaction in question [i.e. in respect of transfer/sale of schedule property situated at Vandalur Village of 1.71 acres by 11 co-owners to Mrs. R. Amudha for a sale consideration of Rs.9,08,95,000/- of which their shares/interest were Rs.46,71,613/- and Rs.1,40,14,840/- respectively]; However, the AO made additions in both their hands i.e. Smt. P.Yasodha, Long Term Capital Gain (LTCG) of Rs.81,46,406/- and in the hands of Shri. Parthasarathy Varadhan, LTCG of Rs.82,41,338/-. And on appeal, the Ld.CIT(A)-10, vide order dated 24.09.2020 in the case of P.Yasodha, inter alia deleted the addition by holding that the land in question as not a capital asset within the meaning of section 2(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doesn't want us to interfere with the impugned action of Ld.CIT(A). 7. We have heard both the parties and perused the records. We note that the dispute is regarding the taxability related to transfer of share/interest on an ancestral immovable property (scheduled property) sold by assessee and ten (10) co-owners for a consideration of Rs 9.08 crores. The assessee (Smt Prema) is noted to be the grand-daughter of Shri. Parthasarthy Naicker, who owned 1.71 acres of land at Vandalur Village; and on 07.07.1978, the grand-father passed away, leaving behind nine (9) heirs as successors to the said property. The assessee's father Shri. Chakrapani Naicker was one of the nine (9) successors/heir; and he passed away on 17.04.1995, leaving behind three (3) heirs (wife Smt. Dhanu, two daughters P. Yashoda and Prema/assessee). On 15.12.2010, the scheduled property was partitioned/divided as per the mutual understanding among heirs; and thus, the assessee's father's share (1/9th) devolved on the three heirs i.e. assessee, her mother and sister (Yasodha) in three equal parts. Thus, the assessee got 1/3rd share of 1/9th share of the undivided interest in the 1.71 acres of land at Vandalur Village ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has received Rs.82,63,181/- and after reducing adhoc 10% consideration of cost of acquisition has computed the STCG as Rs.74,36,863/-. 7.3 Having noted the aforesaid relevant facts, what emerges in the light of the assertion of assessee is that in the relevant AY 2016-17, the assessee had only 'income from other sources' i.e. interestincome of Rs.21,100/- and therefore, she didn't file RoI u/s.139(1) of the Act; and that the allegation that in the relevant year she had transferred immovable land along with ten (10) owners for total sale consideration of Rs.9.08 Crs is on totally wrong assumption of fact; and therefore, the AO's action to reopen the assessment of assessee for AY 2016-17, on the very same transaction of immovable property which happened on 17.02.2014 i.e. in AY 2014-15, is erroneous. We have come to such conclusion by firstly taking note of the information on the basis of which the AO has resorted to reopening of assessment of assessee for AY 2016-17, which information, he disclosed at para one of the assessment order, wherein the AO notes (in his own wordings) "the assessee has sold immovable property along with ten (10) other co-owners for a consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force in the submission of the Ld.AR that the AO/Ld.CIT(A) erred in even computing share of profit of the assessee by dividing the gross total consideration by eleven (11) because the gross sale consideration of Rs.9.08 crores was divided as per the mutual understanding between the heirs/co-owners of 1.71 acres of the immovable land at Vandalur Village, which action of the Ld.CIT(A) has been accepted by the Department as is evident from the fact that assessee's sister Smt. P. Yasodha has undergone scrutiny u/s. 143(3) after re-opening u/s. 147 of the Act wherein the AO made somewhat similar addition of LTCG on the very same transaction of Rs.81,46,460/-; and on appeal, the Ld.CIT(A) is noted to have found that the AO erred in dividing the gross consideration of Rs.9.08 crores into eleven (11) heirs and computing the share of assessee at Rs.82,63,181/-, whereas her share was as per the partition-deed of 2010, and accordingly, was only Rs.46,71,613/-, which fact has been reproduced by Ld.CIT(A) at Page No.23 of his order dated 24.09.2020, wherein he noted that Smt. P.Yasodha (sister of the assessee in the present case) has received only the share of Rs.46,71,613/- (out of total consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income Tax department, wherein it is stated that such land is an agricultural land as per section 2(14) of the Income-tax Act, 1961 (scanned copy is reproduced in pgae no. 29 above). 7.7 And the Ld.CIT(A) gave a finding of facts as under: a. The land is categorised as punsai land, that is, dry land ready for cultivation. b. The land is situated above a distance of 8 kms from the nearest municipal limits and aerial distance of about 6.5 kms c. The population of the nearest municipality is 17,47,787 as per the 2011 census. d. Presence of well in the land - water resource for agricultural activity and EB connection. 7.8 And thereafter, the Ld.CIT(A) concluded as under: 6.10 As can be seen from the above, the appellant had produced the required documentary evidence from the Revenue authorities and other requisite documents that the land is not a capital asset within the meaning of Sec.2(14) of the Act and further, the tax utility tool of the Departmental website also reiterates the same. Further, it is stated that the AO has not adjudicated as to whether the land is an agricultural land or not as per the provisions of the Act. Further, the appellant has also successfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. in AY 2014-15 in the relevant year i.e. AY 2016-17 is per-se erroneous and therefore, cannot be added in AY 2016-17. Therefore, considering the overall facts and circumstances of the case, the action of the Ld.CIT(A) brushing aside the relevant documents filed by the assessee cannot be countenanced and therefore, we set aside the impugned order of the Ld.CIT(A); and restore it to the file of the JAO for a limited purpose i.e. to examine the veracity of the assesse's contention that she has not made any sale/transfer of any immovable property in the relevant year i.e. AY 2016-17; and if it is found that the assessee didn't undertake any transfer/sale of immovable property in AY 2016-17, then no capital gain to be taxed in the hands of the assessee for AY 2016-17; and if it is found that the assessee along with ten (10) co-owners have sold immovable property for Rs 9.08 Crs, in AY 2016-17, then AO to assess the capital gains from such transfer of property in accordance to law; after giving opportunity to assessee. 8. In the result, appeal filed by the assessee in ITA No.2321/Chny/2024 is allowed for statistical purposes. ITA No.2322/Chny/2024: 9. This is an appeal preferred b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly the penalty, by restricting the penalty at Rs.10,000/- in place of Rs.20,000/-. Thus, assessee gets partial relief of Rs.10,000/-. 13. In the result, appeal filed by the assessee in ITA No.2323/Chny/2024 is partly allowed. ITA No.2324/Chny/2024: 14. This is an appeal preferred by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)/NFAC, (hereinafter in short "the Ld.CIT(A)"), Delhi, dated 11.07.2024 for the Assessment Year (hereinafter in short "AY") 2016-17, against the confirmation of penalty u/s.271F of the Act. 15. The impugned penalty was levied on the assessee for nonfiling of the RoI for AY 2016-17 u/s.139(1) of the Act. As noted, (supra), the AO has re-opened the assessment for AY 2016-17 and added total income of Rs.74,57,960/-; and hence, was of the view that penalty u/s.271F of the Act is attracted and levied penalty of Rs.5,000/-. On appeal, the Ld.CIT(A) has confirmed the penalty. However, the main plea of the assessee is that there is no alleged transfer of any immovable property in AY 2016-17 and her taxable income was less than the threshold limit (i.e. she had earned only interest income of Rs.21,100/-), hence, she is not requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
