The ITO, Ward-8(2), Surat V. Shri Harjibhai P.Vastrapara, Surat

ITA 1357/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9238 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Capital asset; Cost of acquisition
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, & MANISH BORAD, AM. ITA NO.1357/AHD/2012 ASST. YEAR: 2008-09 INCOME-TAX OFFICER, WARD-8(2), SURAT. VS. SHRI HARIJIBHAI P. VASTRAPARA, 3 MIRANAGAR SOCIETY, NR. LALITA CHOKDI, KATARGAM, SURAT. APPELLANT RESPONDENT PAN ACMPV 2850P APPELLANT BY SMT. SONIA KUMAR, SR.DR RESPONDENT BY NONE DATE OF HEARING: 12/01/2016 DATE OF PRONOUNCEMENT: 4/03/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A)-V, SURAT DATED 24.04.2012 IN APPEAL NO.CAS/V /180/2010-11 FOR ASST. YEAR 2008-09. ASSESSMENT WAS FRAMED ON 24 .12.2010 BY ITO, WARD-8(2), SURAT. REVENUE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) HAS CONSIDERED THE INVALID SATAKHAT (COPY EN CLOSED) AND DELETING THE ADDITION OF RS.52,26,735/- MADE ON ACC OUNT OF LONG TERM CAPITAL GAIN. ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE APPELLATE ORDE R OF THE LD. CIT(A) MAY BE CANCELLED AND THE ORDER OF THE AO MAY BE UPH ELD. 2. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL ENGAGED IN THE BUSINESS OF BROKERAGE INCOME AND DERIVES INC OME FROM SALARY. THE ASSESSEE FILED HIS RETURN OF INCOME ON 13.10.20 08 SHOWING THE TOTAL INCOME AT RS.1,12,000/- AND AGRICULTURE INCOM E OF RS.97,340/-. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY ASSE SSMENT UNDER CASS AND NOTICE U/S 143(2) WAS ISSUED ON 31.08.2009 , ON THE BASIS OF AIR INFORMATION AVAILABLE IN THE CASE OF ASSESSE E IN RESPECT OF SALE OF IMMOVABLE PROPERTY. THE NOTICE WAS ISSUED ON 3 0/11/2010 AND SERVED UPON THE ASSESSEE. 3. THE ASSESSING OFFICER OBSERVED THAT ASSESSEE AND HIS CO- OWNER BECHARBHAI JIVRAJBHAI VASTARPARA PURCHASED AG RICULTURAL LAND AT PLOT NO.218/A (2300 SQ.M.) AND 218/B (4646 SQ.M. ) SITUATED AT T.P. SCHEME NO.49 AT KATARGAM, SURAT FOR A SUM OF RS.5,2 5,000/- AND THE ASSESSEE AND CO-OWNER SPENT RS.60,000/- ON STAMP PA PER AND REGISTRATION FEES WHICH MADE THE TOTAL INVESTMENT I N THESE TWO PLOTS OF LAND AT RS.5,85,000/-. AS PER THE AIR INFORMATIO N AVAILABLE ON RECORD, THE ASSESSING OFFICER OBSERVED THAT DURING FINANCIAL YEAR 2007-08 THESE TWO PLOTS OF LAND HAVE BEEN SOLD TO M /S DHARA CONSTRUCTION AND DHIRAJLAL P. TEJANI FOR A TOTAL SU M OF RS.1,11,25,000/-. THERE WAS NO LONG TERM CAPITAL GA IN INCOME SHOWN IN THE INCOME-TAX RETURN FILED BY THE ASSESSEE AND, THEREFORE, THE ASSESSING OFFICER CALCULATED THE LONG TERM CAPITAL GAIN AT ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 3 RS.1,04,53,469/- AFTER REDUCING INDEX COST OF ACQUI SITION AT RS.6,71,531/- FROM TOTAL SALE CONSIDERATION AT RS.1 ,11,25,000/- AND ARRIVED AT LONG TERM CAPITAL GAIN AT RS.1,04,53,469 /- AND ASSESSEE BEING CO-OWNER, THE ASSESSING OFFICER, THEREFORE, A DDED 50% OF THE TOTAL LONG TERM CAPITAL GAIN OF RS.1,04,53,469/- A ND ACCORDINGLY MADE ADDITION OF RS.52,26,735/- IN THE TOTAL INCOME OF A SSESSEE. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE CIT(A) WHO DELETED T HE ADDITION MADE BY ASSESSING OFFICER AND ALLOWED THE APPEAL OF THE ASSESSEE. 4. AGGRIEVED, THE REVENUE IS NOW IN APPEAL BEFORE T HE TRIBUNAL. 5. THE LD. DR HEAVILY RELIED ON THE ORDER OF ASSESS ING OFFICER AND SUBMITTED THAT AS PER AIR INFORMATION ASSESSEE SOLD THE PLOTS OF LAND WITH HIS CO-OWNER DURING THE YEAR UNDER ASSESSMENT AND HAS NOT DISCLOSED ANY INCOME ON THIS ACCOUNT AND, THEREFORE , THE ORDER OF ASSESSING OFFICER SHOULD BE RESTORED. 6. WE FIND THAT DURING THE COURSE OF APPELLATE PROC EEDINGS BEFORE LD. CIT(A) LD. AR OF ASSESSEE SUBMITTED THAT ASSESSEE EXECUTED THE REGISTERED SALE DEED OF LAND BEARING SURVEY NO. 199 /5 AND 6, T.P. 49, F.P. 218A AND 218B OF KATARGAM VIDE REGISTERED SALE DEED DTD. 01 03 2008 AND 28.03.2008 FOR RS. 36,25,000/- AND RS. 75,00,000/- RESPECTIVELY. THE SALE DEED WAS EXECUTED BY ASSESSE E AND OTHER CO- OWNER BECHARBHAI JIVARAJBHAI VASTARPARA. THE APPELL ANT CLAIMED THAT APPELLANT AND CO-OWNER BECHARBHAI JIVARAJBHAI VASTA RPARA HAD ENTERED INTO SATAKHAT WITH FOUR PERSONS NAMELY 1) G OPALBHAI PRERNJIBHAI VASTARPARA, 2) JITENDRABHAI HARJIBHAI D ESAI, 3) BABUBHAI ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 4 NAGJIBHAI GAJERA AND 4) SURESHKUMAR BABUBHAI GAJERA ON 04.03,2005, THE LAND WAS PURCHASED ON 28.02.2005 BY THE TWO CO- OWNERS AS AN AGRICULTURE LAND. 6.1 THE OWNERS AND CONFIRMING PARTIES OF LAND ARE A S UNDER: OWNERS CONFIRMING PARTY OF LAND HARJIBHAI PARSOTTAMBHAI VASTARPARA GOPALBHAI PRAGJIBHAI VASTARPARA (HUF) BECHARBHAI JIVRAJBHAI VASTARPARA JITENDRABHAI HARJIBHAI DESAI BABUBHAI NAGJIBHAI GAJERA SURESHKUMAR BABUBHAI GAJERA 6.2 DETAILS OF RECEIPTS BY OWNERS AND CONFIRMING PA RTY ARE AS UNDER RECEIPTS OF OWNERS RECEIPTS OF CONFIRMING PARTY NAME AMOUNT NAME AMOUNT HARJIBHAI PARSOTTAMBHAI VASTARPARA 575500 GOPALBAI PRAGJIBHAI VASTARPARA (HUF) 4424000 BECHARBHAI JIVRAJBHAI VASTARPARA 575500 JITENDRABHAI HARJIBHAI DESAI 3050000 BABUBHAI NAGJIBHAI GAJERA 1250000 SURESHKUMAR BABUBHAI GAJERA 1250000 6.3 THE ASSESSEE AND OTHER OWNERS HAD ENTERED INTO A SATAKHAT FOR SALE OF LAND ON 04.03.2005 WITH THE CONFIRMING PART IES FOR RS. 11,51 R OOO/- THE FINAL DOCUMENT, IN FAVOUR OF M/S DHARA CONSTRUCTION AND DHIRAJLAL POPATLAITEJANI WAS EXECU TED ON 28.03.2008. THE NAMES OF 4 CONFIRMING PARTIES WERE NOT ENTERED IN THE REGISTERED SALE DEED SINCE AS PER STAMP DUTY RE GULATIONS IF, THE NAMES OF CONFIRMING PARTIES ARE ENTERED, THE DO UBLE STAMP DUTY ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 5 AND REGISTRATION CHARGES ARE REQUIRED TO BE PAID. T HEREFORE, THE PURCHASER ACCEPTED THE NAME OF 2 LAND OWNERS AND OM ITTED THE NAMES OF 4 CONFIRMING PARTIES TO AVOID PAYMENT OF D OUBLE STAMP DUTY. 6.4 THE SURAT MUNICIPAL CORPORATION HAD PUT WATER W ORKS RESERVATION ON THESE LANDS AS THE LAND IS FOR AGRI CULTURE. THE CONFIRMING PARTIES HAD AGREED TO MAKE REPRESENTATIO N BEFORE THE REVENUE DEPARTMENT OF THE STATE GOVERNMENT TO RELEA SE THE RESERVATION ON LAND, TO CARRY OUT. THE PROCEDURE OF N.A. BEFORE THE COLLECTOR SURAT AND TO GET THE PLAN OF BUILDING APP ROVED ON LAND FROM SURAT MUNICIPAL CORPORATION. ALL THE PROCEDURES WER E COMPLETED ON 26.03.2007. AS PER THE TERMS OF THE SATAKHAT THE PA YMENT FROM CONFIRMING PARTIES WERE MADE TO ASSESSEE AND OTHER CO-OWNER ON 26.03.2007. ACCORDINGLY, THE CAPITAL GAIN HAS BEEN SHOWN IN A.Y. 2007-08. AS PER THE TERMS OF SATAKHAT, ASSESSEE AND OTHER CO-OWNER ARE BOUNDED TO EXECUTE REGISTERED SA/E DEED IN FAVO UR OF FOUR CONFIRMING PARTIES OR IN FAVOUR OF ANY PERSON OR CO NCERN SUGGESTED BY FOUR CONFIRMING PARTIES WITHOUT RECEIVING ANY FURTH ER CONSIDERATION. THE FOUR CONFIRMING PARTIES HAD EXECUTED A CANCELLA TION / TRANSFER DEED ON 21.03.2008 BY WHICH THE ASSESSEE .AND OTHER CO-OWNERS WERE REQUIRED TO EXECUTE REGISTERED SALE DEEDS IN F AVOUR OF DHARA CONSTRUCTION AND DHIRAJLA! POPATLAL TEJANI TO WHOM LAND WAS SOLD BY FOUR CONFIRMING PARTIES. THE COPY OF TRANSFER DEED DTD. 21.03.2008 IS ENCLOSED. 6.5 THE ASSESSES HAD SOLD THE LAND AS PER SATAKHAT DTD. 04.03.2005 TO 4 CONFIRMING PARTIES AND HAD SHOWN TH E CAPITAL GAIN IN ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 6 A.Y. 2007/08 ON SALES OF LAND TO CONFIRMING PARTIES . THE COPY OF COMPUTATION OF INCOME AND RETURN OF INCOME OF A.Y. 2007-08 ARE ENCLOSED. 6.6 THE 4 CONFIRMING PARTIES, THOUGH THE REGISTERED SALES DEED WAS EXECUTED ON 01.03.2008 AND 28.03.2008. HAVING R ECEIVED THE ACTUAL SALE PRICE IN A.Y. 2008/09, A.Y. 2009/10 AND A.Y. 2010/11 FROM PURCHASER M/S. DHARA CONSTRUCTION AND DHIRAJLA L PCPATLAL TEJANI, HAD SHOWN THE CAPITAL GAIN IN THEIR RETURN OF INCOM E FOR A.Y. 2008/09 , A.Y. 2009/10 AND A.Y. 2010/11 THE COPY OF COMPUTATION OF INCOME AND ACKNOWLEDGEMENT OF I.T. RETURN OF INCOME OF A.Y. 2008/09 AND A.Y. 2009/10 OF 4 CONFIRMING PARTIES AR E ENCLOSED, 6.7 THUS, THE ENTIRE SALES CONSIDERATION OF RS. 1,1 1,25,000/- HAS BEEN SHOWN IN THE CASE OF ASSESSES, HARJIBHAI AND 4 CONFIRMING PARTIES ACCORDING TO THE TERMS OF SATAKHAT DTD. 04. 03.2005, 7. WE HAVE HEARD THE CONTENTIONS MADE BY LD. DR AN D PERUSED THE MATERIAL ON RECORD. WE FIND THAT THIS IS A CASE IN WHICH ASSESSEE ALONG WITH HIS CO-OWNER PURCHASED PLOTS OF AGRICULT URAL LAND DISCUSSED ABOVE ON 28.2.2005 FOR A TOTAL CONSIDERAT ION OF RS.5,85,000/- (INCLUDING REGISTRATION FEES AND STAM P PAPER COST) AND THEREAFTER ON 4.3.2005 THESE PLOTS OF AGRICULTURAL LAND WERE SOLD FOR A SUM OF RS.11,51,000/- BY ENTERING INTO SADAKHAT WIT H FOUR PERSONS NAMELY-1) GOPALBHAI PRERNJIBHAI VASTARPARA, 2) JIT ENDRABHAI HARJIBHAI DESAI, 3) BABUBHAI NAGJIBHAI GAJERA AND 4 ) SURESHKUMAR BABUBHAI GAJERA. WHEN THE SATAKHAT WAS EXECUTED THE RE WERE ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 7 CERTAIN RESERVATIONS AND ISSUES IN LAND WHICH WERE REQUIRED TO BE CLEARED BEFORE ANY PAYMENT IS MADE BY CONFIRMING PA RTIES TO TWO CO- OWNERS. THE ISSUES IN LAND WERE CLEARED IN A.Y. 200 7/08 AND THE PAYMENT WAS MADE BY CONFIRMING PARTIES TO TWO CO-OW NERS IN AY 2007-08 AND BOTH THE CO-OWNERS HAD SHOWN SHORT TERM CAPITAL GAIN IN THEIR RETURN OF INCOME WHICH WERE ACCEPTED BY TH E ASSESSING OFFICER. THE ABOVE REFERRED FOUR PARTIES FURTHER HA VE SOLD THE PLOTS OF LAND IN THE ISSUE UNDER APPEAL BEFORE ENTERING REGI STERED SALE DEED IN FAVOUR OF M/S DHARA CONSTRUCTION AND DHIRAJ P. TEJA NI ON 28.03.2008. THE CONSIDERATION MENTIONED IN THIS SALE DEED DATED 28.03.2008 WAS RS.1,11,25,000/- OUT OF WHICH RS.11,57,000/- WERE S HOWN TO HAVE BEEN RECEIVED BY THE ASSESSEE I.E. HARIJIBHAI P. VA STARPARA AND HIS CO-OWNER BECHARBHAI JIVRAJBHAI VASTARPARA AND THE R EMAINING AMOUNT OF RS.99,74,000/- WAS RECEIVED BY THE FOUR C ONFIRMING PERSONS GOPALBHAI PRAGJIBHAI VASTARPARA, JITENDRABH AI HARJIBHAI DESAI, BABUBHAI NAGJIBHAI GAJERA & SURESHKUMAR BABU BHAI GAJERA. ALL THE FOUR CONFIRMING PARTIES HAVE SHOWN THE RESP ECTIVE RECEIPTS TOTALING TO RS.99,74,000/- IN THEIR RETURN OF INCOM E AS CAPITAL GAINS. 8. WE FURTHER FIND THAT LD. CIT(A) HAS OBSERVED FOL LOWING WHILE ALLOWING THE APPEAL OF ASSESSEE DECISION: 6. I HAVE GONE THROUGH THE ASSESSMENT, ORDER AND TH E SUBMISSION OF THE APPELLANT. SO FAR AS THE FIRST GROUND OF APPEAL REL ATED TO THE ADDITION OF RS. 52,26,735/- ON ACCOUNT OF CAPITAL GAIN IS CONCERNED , IT IS FOUND FROM THE DETAILS SUBMITTED THAT THE APPELLANT ,AND THE OTHER CO-OWNER HAD PURCHASED THE LAND FOR RS. 5,85,000/- ON 28.02.2005 AND HAD SOLD THE LAND ON 04.03.2005 TO FOUR CONFIRMING PARTIES AND D ISTRIBUTED THE SALE CONSIDERATION AS UNDER :- ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 8 RECEIPTS OF OWNERS RECEIPT OF CONFIRMING PARTY NAME AMOUNT NAME AMOUNT HARIJIBHAI PARSOTTAMBHAI VASTARPARA 575500 GOPALBHAI PRAGJBHAIVASTARPARA (HUF) 4424000 BECHARBHAI JIVRAJBHAI VASTARPARA 575500 JITENDRABHAI HARJIBHAI DESAI 3050000 . BABUBHAI NAGJIBHAI GAJERA 1250000 SURESHKUMAR BABUBHAI GAJERA 1250000 TOTAL 1151000 TOTAL 9974000 WHEN THE SATAKHAT WAS EXECUTED THERE WERE CERTAIN R ESERVATIONS AND ISSUES IN LAND WHICH WERE REQUIRED TO BE CLEARED BE FORE ANY PAYMENT IS MADE BY CONFIRMING PARTIES TO TWO CO-OWNERS. THE IS SUES IN LAND WERE CLEARED IN A.Y. 2007/08 AND THE PAYMENT WAS MADE BY CONFIRMING PARTIES TO TWO CO-OWNERS IN AY 2007-08 AND BOTH THE CO-OWNE RS HAD SHOWN SHORT TERM CAPITAL GAIN IN THEIR RETURN OF INCOME WHICH W ERE ACCEPTED BY THE ASSESSING OFFICER. THE FOUR CONFIRMING PARTIES HAD SOLD THE LAND TO M/S. DHARA CONSTRUCTION AND DHIRAJLAL POPATLAL TEJANI ON 01.03.2008 AND 28.03.2008 AND HAD RECEIVED THE CONSIDERATION OF RS .1,11,25,000/- IN A.Y. 2008/09 AND A.Y. 2009/10 AID HAD ALSO SHOWN T HE CAPITAL GAIN OF RS. 99,74,000/- IN THEIR RETURNS OF INCOME OF A.Y. 2008/09 AND A.Y. 2009/10. ALL THESE EVIDENCES WERE SUBMITTED BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE ME. AS PER THE PROVISION OF : SECTION 2(47)(V) OF THE ACT ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSSE SSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER O F PROPERTY ACT, 1882 OF AND CAPITAL ASSETS FALLS WITHIN THE MEANING OF 'TR ANSFER FOR THE PURPOSE OF SEC. 45 OF THE ACT. SINCE, THE POSSESSION WAS GIVEN IN A.Y. 2007/08 BY THE TWO CO-OWNERS TO FOUR CONFIRMING PARTIES IN A.Y . 2007/08, THE SHORT TERM CAPITAL GAIN IN CASE OF ASSESSES AND OTHER CO- OWNER IS ATTRACTED IN A.Y. 2007/08 AND ASSESSEE HAS RIGHTLY SHOWN THE SA ME IN HIS RETURN OF INCOME. THE OTHER CO-OWNERS BECHARBHAI JIVJRAJBHAI VASTARPARA HAD ALSO : SHOWN THE SAME CAPITAL GAIN IN HIS RETURN OF INCOME OF A.Y. 2007/08 AND THE RETURNED INCOME IN HIS CASE WAS ACCEPTED BY THE ASSESSING OFFICER IN THE ORDER U/S. 143(3) OF THE ACT. THE- FO UR CONFIRMING PARTIES HAD ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 9 ACQUIRED THE RIGHT ON 04.03.2005 AND TRANSFERRED THE SAME ON 28.03.2008 BUT THE CONSIDERATION WAS RECEIVED IN A.Y. 2008/09 AND A.Y. 2009/10 AND ACCORDINGLY, HAD SHOWN THE LONG TE RM CAPITAL GAIN IN THEIR RETURN OF INCOME. THUS, THE ENTIRE CAPITAL GA IN WHETHER SHORT TERM OR LONG TERM HAS BEEN TAXED IN THIS CASE OF TWO CO-OWNERS AND FOUR CONFIRMING PARTIES. THE ONLY DOUBT ON THE PART OF ASSESSING OFFICER IS THE EXECUTION OF REGISTERED SALE DEED IN FAVOUR OF DHARA CONSTRUCTION AND DHIRAJLAL POPATLAL TEJANI BY TWO CO-OWNERS WH EN THEY HAD TRANSFERRED THEIR RIGHTS BY SATAKHAT DTD. 04.0:5.2005. AS PER T HE TERMS OF SATAKHAT THE FINAL SALE DEED WAS TO BE EXECUTED IN FAVOUR OF ANY PERSON AS PER THE INSTRUCTION OF FOUR CONFIRMING PARTIES AND TH EREFORE, THEY HAD RIGHTLY EXECUTED THE REGISTERED SALE DEED, THE PAYMENT WAS MADE BY DHARA CONSTRUCTION TO TWO CO-OWNERS WHO HAD TRANSFERRED T HE SAME TO FOUR CONFIRMING PARTIES BY BANKING CHANNEL AS AND WHEN T HE PAYMENT WAS RECEIVED IN NORMAL COURSE. THE LAND WAS SUBJECT TO WATER WORK RESERVATION INFLICTED BY STATE GOVERNMENT IN FAVOUR OF SURAT MUNICIPAL CORPORATION, THERE WERE PENDING PROCEEDINGS FOR NON -AGRICULTURE PERMISSION AND APPROVAL OF BUILDING PLAN, ALL TO BE COMPLETED BY THE FOUR CONFIRMING PARTIES WHO HAD COMPLETED THE SAME ON 26 .03.2007, MADE PAYMENT ON THAT DATE TO TWO CO -OWNERS AND SOLD THE LAND ON 28.03.2008. THE ASSESSEE AND OTHER CO-OWNER HAS EXECUTED A TRAN SFER/CANCELLATION DEED ON 21.03.2008 WITH FOUR CO-OWNERS BY W HICH THE FOUR CONFIRMING PARTIES INSTRUCTED AND AGREED WITH THE ASSESSEE AND OTHER CO-OWNER TO EXECUTE REGISTERED SALE DEED IN FAVOUR OF PURCHASE R OF AND TO WHOM THE LAND WAS IN FACT SOLD BY THE FOUR CONFIRMING PARTIE S. THUS, THE APPELLANT HAD SOLD THE LAND ON 26.03.2007, SHOWN THE SHORT TERM CAPITAL GAIN IN A.Y. 2007/08. THE PROFIT ARISING AS A RESULT OF REG ISTERED SALE DEED DTD. 28.03.2008 IS THE PROFIT ACCRUING TO FOUR CONFIRMIN G PARTIES AND NOT TO THE ASSESSEE. ALL THESE FACTS WERE INCEPTED BY T HE ASSESSING OFFICER OF BECHARBHAI JIVRAJBHAI VASTARPARA, OTHER CO-OWNER OF LAND. IN THE ASSESSMENT ORDER OF A.Y. 2008/09 U/S. 143(3) OF THE ACT PASSED ON 24.05.2010. SINCE, THE ASSESSEE, OTHER CO-OWNER AND THE FOUR CONFIRMING PARTIES HAVE ALREADY ACCOUNTED THE SALES RECEIPTS O F RS. 1,11,25,000/- IN THEIR RESPECTIVE ACCOUNTS AND HAVE ALSO SHOWN THE C APITAL GAIN IN THEIR ALL CASES AS PER THEIR SHARE IN LAND, THE ASSESSING OFF ICER WAS NOT JUSTIFIED IN MAKING THE ADDITION OF ENTIRE CONSIDERATION IN THE CASE OF APPELLANT. ACCORDINGLY, THE ADDITION OF RS. 52,26,735/- IS HEREBY DELETED A ND THE GROUND OF APPEAL IS ALLOWED. 9. WE FIND THAT LD. CIT(A) HAS ELABORATELY DISCUSSE D THE FACTS OF THE CASE AND HAS TOUCHED UPON VARIOUS ISSUES ALONG WITH REFERENCE TO SECTION 53A OF THE TRANSFER OF PROPERTY ACT 1882 AS WELL AS MEANING OF TRANSFER MENTIONED IN SECTION 45 OF THE ACT. FROM GOING ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 10 THROUGH THE OBSERVATIONS OF LD. CIT(A), ORDER OF AS SESSING OFFICER AND SUBMISSIONS MADE BY ASSESSEE BEFORE THE LOWER AUTHO RITIES, WE FIND THAT ENTIRE CAPITAL GAIN I.E. SHORT TERM AND LONG T ERM CAPITAL GAIN HAS BEEN TAXED IN THE HANDS OF TWO CO-OWNERS NAMELY HAR JIBHAI PARSOTTAMBHAI VASTARPARA AND BECHARBHAI JIVRAJBHAI VASTARPARA AND BY THE FOUR CONFIRMING PARTIES BY WAY OF SHOWING TO TAL SALE CONSIDERATION OF RS.1,11,25,000/- BIFURCATED AMONGS T THEIR RETURNS OF INCOME AND AFTER REDUCING THE COST OF ACQUISITION W HICH HAS BEEN DULY ACCEPTED BY THE REVENUE AUTHORITIES, THE REMAINING GAIN HAS BEEN OFFERED TO TAX. WE FURTHER FIND THAT THE CO-OWNERS WHO MADE AGREEMENT WITH THE FOUR CONFIRMING PARTIES HAVE SHE D THEIR RIGHTS AT THE VERY MOMENT THEY ENTERED INTO THE AGREEMENT AND THE VALUE OF SALE CONSIDERATION FOR THESE CO-OWNERS WAS FIXED AT RS.11,51,000/- AND THEY WERE DUTY BOUND TO SIGN THE DOCUMENTS RELA TING TO SALE DEED IRRESPECTIVE OF THE FACT THAT THE SALE DEED WHICH T HEY WERE GOING TO EXECUTE WAS IN BETWEEN THE CONFIRMING PARTIES AND C O-OWNERS OR WITH A THIRD PARTY. WE FIND THAT FOUR CONFIRMING PARTIES FURTHER ENTERED INTO AN AGREEMENT FOR SALE OF LAND FOR RS.1,11,25,000/- OF M/S DHARA CONSTRUCTION AND DHIRAJLAL POPATLAITEJANI AND THERE FORE, SALE DEED WAS REGISTERED BY THE SIGNATURES OF TWO CO-OWNERS W HO RECEIVED RS.11,51,000/- AND THE SALE DEED WAS FURTHER COUNTE R-SIGNED BY THE CONFIRMING PARTIES WHO RECEIVED THE BALANCE AMOUNT OF RS.99,74,000/-. IN OTHER WORDS THERE WAS NO LOSS TO THE REVENUE AND ALSO THE CAPITAL GAINS HAVE BEEN RIGHTLY OFFERED BY THE CONCERNED PARTIES IN THEIR RETURNS OF INCOME. WE THEREFORE, F IND NO REASON TO INTERFERE WITH THE FINDINGS OF LD. CIT(A). WE UPHOL D THE SAME. ITA NO. 1357/AHD/2012 ASST. YEAR2008-09 11 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MARCH, 2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 4/03/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 12/02/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 04/03/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 4/3/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: