The ITO, Ward-7(2), Ahmedabad V. Shri Ramanlal C.Patel, Ahmedabad

ITA 2008/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85817 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 11-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: S N DIVETIA
• Section: 133(6); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. ITA. NO.2008/AHD/2011 (ASSESSMENT YEAR:2008-09) I.T.O., WARD-7(2), AHMEDABAD APPELLANT VS. SHRI RAMANLAL C. PATEL 19, MOTI PARK SOCIETY, SATELLITE, AHMEDABAD RESPONDENT PAN: ASGPP1914J /BY APPELLANT : SHRI M. K. SINGH, SR. D.R. /BY RESPONDENT : SHRI S. N. DIVETIA, A.R. !' /DATE OF HEARING : 25.02.2015 #$% !' /DATE OF PRONOUNCEMENT : 13.03.2015 ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 2 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-VI, AHMEDABAD, DATED 02.06.2011 FOR A.Y. 2008-09 ON THE FOLLOWING GROUND: 1) THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRE D IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO TREAT THE ASSESSEES SHARE IN THE PROPERTY SOLD DUR ING THE YEAR, AS 1/18 TH , INSTEAD OF 1/6 TH DETERMINED BY THE ASSESSING OFFICER ON THE BASIS OF FORM 6A DATED 08/11/1983. 2. ASSESSEE IS INDIVIDUAL AND DERIVES INCOME FROM P ENSION AND FROM OTHER SOURCES. ASSESSING OFFICER IN ASSES SMENT ORDER HAS OBSERVED AS UNDER: 'DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE F ILED HIS RETURN OF INCOME WITH SHOWING PENSION INCOME. I NCOME FROM OTHER SOURCES ALONGWITH INCOME OF LONG TERM CA PITAL GAIN ON SALE OF URBAN AGRICULTURE LAND OF RS. 38,05 ,558/- AGAINST WHICH THE ASSESSEE INVESTED RS. 36,00,000/- IN BOND ISSUED BY NATIONAL HIGHWAY AUTHORITY OF INDIA AND CLAIMED DEDUCTION U/S. 54 EC OF RS. 35,30,058/- ( D ULY RESTRICTED) AFTER TAKING BENEFIT OF INDEXATION FROM 1980-81. ON VERIFICATION OF SUBMISSION MADE BY THE ASSESSEE, SALE DEED OF THE LAND IT IS NOTICE THAT DURING THE F.Y. 2007-08 THE ASSESSEE WITH OTHERS HAD SOLD URBAN AGRICULTURE LAN D OF RS. 6,85,00,000/-. THE ASSESSEE HAS REQUESTED TO FURNIS H THE ABSTRACT OF 7/12 IN RESPECT OF SOLD LAND. THE AR. O F THE ASSESSEE VIDE HIS LETTER DATED 26.10.2010 SUBMITTED THE COPY OF-SALE DEED AS WELL AS COPY OF 7/12 AND ALSO FORM NO.6 I.E. THE PROOF OF OWNERSHIP OF THE SAID LAND. THE FORM ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 3 NO 7/12 OF THE F.Y. 2006-07 GENERATED THROUGH SOFTW ARE OF THE GOVT. OF GUJ'ARAF DATED 07.08.2010 VIDE SR. NO. 3274052 AND ABSTRACT OF FORM 6 WHICH WAS REGISTERED ON 19.0 3.2007 VIDE REGISTRY NO. 6697 (COPIES ARE FORMING PART OF THE ORDER HENCE ENCLOSED WITH THE ASSESSMENT ORDER). IT IS AL SO NOTICED BY THE UNDERSIGNED THAT SMT. DIWALIBEN CHUNILAL, W/ O. SHRI CHUNILAL DEVIDAS WAS EXPIRED ON 8.10.1992. AFTER TH AT, SHRI CHUNILAL D. PATEL, FATHER OF THE ASSESSEE, WHO WAS EXPIRED ON 10.5.2004. DUE TO THE DEATH OF HIS FATHER LATE S HRI CHUNILAL D. PATEL ON 10.5.2004 THE ASSESSEE RECEIVE D THE SAID PROPERTY IN INHERITANCE. IF IS ALSO ESTABLISHE D FROM THE FORM - 6, SUBMITTED BY THE ASSESSEE THAT, THE OWNER SHIP OF THE SAID PROPERTY WAS OF AMONG THE FIVE PERSONS. IN 7/12 THE SAME THINGS WAS REPRODUCED. ON DEEPLY SCRUTINIZE IT IS SEEN THAT, THERE WAS DIFFERENCES IN FORM NO.6, COPY 7/12 AND SALE DEED AS MENTIONED HEREUNDER. S.NO. NAME MENTIONED IN FORM NO.6 I.E. NAMES OF THE INHERITANCES NAME MENTION IN COPY OF 7/12 I.E. NAME OF THE AGRICULTURISTS NAME MENTIONED IN THE SALE DEED I.E. NAME OF THE SELLER PERSONS 1 SH.RAMANLAL CHUNILAL SH. CHUNILAL DEVIDAS SH.RAMANLAL CHUNILAL 2 SH.CHIMANLAL CHUNILAL SH.RAMANLAL CHUNILAL SH.CHIMANLAL CHUNILAL 3 SH.BALDEVHAI CHUNILAL SH.CHIMANLAL CHUNILAL SH.BALDEVHAI CHUNILAL 4 SH.RATILAL CHUNILAL SH.BALDEVHAI CHUNILAL SH.RATILAL CHUNILAL 5 SMT. VIMALABEN CHUNILAL SH.RATILAL CHUNILAL SMT. CHANDRIKABEN ALIAS MINALBEN JAGDISHKUMAR 6 N.A. SMT. DIWALIBEN CHUNILAL N.A. ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 4 FROM THE ABOVE IT IS CRYSTAL CLEAR FROM THE SALE DE ED THAT, THE ASSESSEE ALONG WITH FOUR OTHER PERSONS WAS THE OWNER OF THE SAID LAND AFTER THE DEATH OF THE FATHER OF THE ASSESSEE I.E. AFTER 10.5.2004. IN SHORT, THE OWNER OF THE SAID LA ND IS ONLY 5 (FIVE) PERSONS ACCORDING TO THE SALE DEED AND THE REFORE, TOTAL SALE CONSIDERATION IS DISTRIBUTE AMONG ONLY I N THE 5 (FIVE) PERSONS. MOREOVER, ACCORDING TO THE SECTION 48(III) OF THE INCOME TAX ACT THE ASSESSEE IS ENTITLE FOR THE BENEFIT OF THE INDEXATION FROM THE DATE OF HOLDING THE PROPERT Y BY THE ASSESSEE I.E. F.Y. 2004-05. IT IS ALSO NOTICED THAT ASSESSEE HAS TAKEN INDEXATION FOR THE YEAR 198I I.E. FROM TH E DATE OF ACQUISITION OF PROPERTY BY THE PREVIOUS OWER I.E. N OT ACCORDANCE WITH THE UNDER SECTION 48(III) OF THE AC T. THIS SAID QUERY RAISED DURING THE COURSE OF HEARING AND DETAILED DISCUSSION MADE WITH THE A.R. OF THE ASSESSEE. THER EAFTER THE UNDERSIGNED HAS ISSUED SHOW CAUSED ISSUED ON 15.11.2010.................................. IN RESPONSE TO THE AFORESAID SHOW-CAUSE, WHICH WAS RECEIVED BY THE ASSESSEE 18.11.2010, NOBODY IS ATTE NDED NOR TAKEN ANY ADJOURNMENT ON THAT DATE. THEREAFTER, ONE MORE OPPORTUNITY LETTER DATED 29.11.2010 HAVE BEEN ISSUED TO THE ASSESSEE WHICH WAS RETURNED TO THE OFFICE OF THE UNDERSIGNED WITH REMARKS 'LEFT BY THE POSTAL AUTHORITY. THOUGH THE EARLIER NOTICES AS WELL AS THE SHOW CAUS ED NOTICE DATED 15.11.2010 WHICH WERE SERVED UPON HIM ON THE ADDRESS MENTIONED ON THE RETURN OF INCOME FILED BY THE ASSESSEE FOR THE A.Y. UNDER CONSIDERATION. THE INSP ECTOR OF THIS OFFICE HAS BEEN DEPUTED FOR THE SERVICE OF THE AFORESAID NOTICE WHICH HAS BEEN SERVED ACCORDINGLY. HOWEVER, THE ASSESSEE VIDE HIS SUBMISSION DATED 02.12.2010 WHICH HAVE BEEN RECEIVED BY THIS OFFICE ON 02.12.2010 IN WHICH THE ASSESSEE ASKED FOR THE ADJOURNMENT FOR 3 TO 4 DAYS WHICH HAS BEEN GRANTED AND THE HEARING IS REAFFIXED ON 08.12.2010. IN RESPONSE TO THE SAID NOTICE THE ASSE S SEES VIDE HIS REPLY DATED 09.12.2010 WHICH HAVE BEEN SUB MITTED IN THE TAPAL OF THE OFFICE OF THE UNDERSIGNED IS RE PRODUCED AS UNDER: - ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 5 THE ASSESSEE HAS NOT DENIED FOR THE PROPOSED ADDITI ON AS PER THE SEC. 48(III) ON WHICH THE SHOW CAUSED ISSUE D. THE ASSESSEE IS ONLY OBJECTED IN HIS REPLY DATED 09.12. 2010 REGARDING THE YEAR OF ACQUIRING THE PROPERTY AND FO R THAT, THE ASSESSEE NOW SUBMITTED FURTHER EVIDENCES LIKE F ORM N0.6 DATED 08.11.1983 VIDE ENTRY NO. 2940. IN THE S AID EVIDENCE, IT IS MENTIONED THAT, THE ASSESSEE'S NAME WITH THE BLOCK NUMBER I.E. 308 C (308 ) IS ENTERED VIDE AFOR ESAID FORM FROM 08.11. 1983. SO CONSIDERING THE REPLY OF THE A SSESSEE AND ALSO EVIDENCE THEREON, THE YEAR WHICH WAS MENTI ONED IN THE SHOW CAUSED FOR INDEXATION IS 2004-05 INSTEAD O F 1983- 1984. IF IS VERY MUCH CLEAR FROM THE ASSESSEE'S REP LY DATED 09.12.2010 THAT THE ASSESSEE AGREED FOR THE PROPOSE D ADDITION IN REGARDS TO SEC. 48(III). IN THE SECTION 48(III) IT IS CLEARLY MENTIONED FOR THE APPLICATION OF THE INDEXA TION. IN SECTION 48(III), IT IS MENTIONED THAT, 'INDEX FOR T HE FIRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSESSEE OR FOR THE YEAR BEGINNING ON THE 1 ST DAY OF APRIL, 1981 WHICH EVER LATER SO THERE SHOULD NOT BE ANY CONTROVERSY IN THIS REGARD AS IN THIS CASE THE ASSESSES HELD THE PROPERTY FOR THE FIRST T IME AFTER THE REGISTERED OF FORM NO.6 DATED 08.11.1983 VIDE E NTRY NO. 2940,. SO THE INDEXATION WOULD BE APPLIED FROM THE FIRST YEAR OF THE PROPERTY IN WHICH IT WAS HELD BY THE AS SESSEE I.E. 1983-1984 AND NOT FROM THE 1980-81 AS TAKEN BY THE ASSESSEE. THEREFORE, THE INDEXATION CLAIMED BY THE ASSESSEE H AS BEEN RESTRICTED AS UNDER :- WORKING OF INDEXATION ON L T.C..G IS AS UNDER: RS.(50,0001- ***) X 551/116 = RS.2,37,500/- TOTAL AMOUNT OF THE PROPERTY AFTER APPLYING THE 'IN DEXATION AS ABOVE RS. 2,37,500/- LESS: COST OF INDEXATION SHOWN BY THE ASSESSEE RS. 2,75,500/- THE EXCESS DEDUCTION CLAIMED BY THE ASSESSEE ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 6 RS. 38,000/- THEREFORE, THE MADE AN ADDITION OF ~38,000/-. ON AC COUNT OF EXCESS DEDUCTION CLAIMED BY THE ASSESSEE AS A COST OF INDEXATION AND ADDED BACK TO THE ASSESSEE'S TOTAL I NCOME. PENALTY PROCEEDINGS U/S. 271(1)(C) R.W.S. 274 OF TH E .I.T. ACT, IS INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALING THE INCOME THEREON. NOW COME TO THE SECOND POINT THAT IS OF THE OWNERSH IP OF THE SALE LAND. THE ASSESSEE HIMSELF PARTLY AGREED IN TH E AFORESAID LETTER IN HIS WORKING GIVEN UNDER ALTERNA TIVE COMPUTATION, ABOUT THE QUERY RAISED BY THE UNDERSIG NED. HERE, ASSESSEE HAS WHEN ANOTHER STANDS THAT, AMOUNT OF RS. 1,13,95,000 RECEIVED BY HIM AS WELL AS HIS FAMILY MEMBERS OUT OF THE TOTAL SALE CONSIDERATION RS 6,85,00,000/- . NOW, HERE ONCE AGAIN ASSESSEE TRIES TO HIDE THE FACTS OF THE SALE DEED AND ALSO THE OWNERSHIP O F THE LAND. AS MENTIONED EARLIER AND INFORMATION GATHERED FROM THE COLLECTOR OFFICE BY ISSUING NOTICE U/S. 133(6) OF THE IT. ACT THROUGH THE INSPECTOR WORKING IN THE OFFICE OF THE UNDERSIGNED AS WELL AS FROM THE SALE DEED IT IS VER Y MUCH CLEARED THAT, THE OWNERSHIP OF THE LAND IS OF ONLY 5 (FIVE) PERSONS. SO THE AMOUNT RECEIVED ON SALE OF THE LAND IS DISTRIBUTED AMONG THEM ONLY AS PER THE PROPORTIONAT E SHARES. THE ASSESSEE HAS HAVING THE SHARE OF 1/6 TH IN THE SAID PROPERTY. SO THE ASSESSEE HAS TAKEN PLEA .THAT , THE AMOUNT RECEIVED FROM THE TOTAL SALE PROCEEDS AND IN VESTED BY HIS FAMILY MEMBERS ARE EXEMPTED U/S. 54 OF THE I .T ACT IS NOT CORRECT, AS THE OWNERSHIP OF THE PROPERTY IS BE LONGS ONLY TO THE ASSESSEE AND NOT OF HIS FAMILY MEMBERS. SO, THE DISTRIBUTION' OF THE AMOUNT, AMONGST THE FAMILY MEM BERS BEFORE THE MAKING PAYMENT OF LT.C.G. IS NOT CORRECT AS PER THE INCOME FAX ACT. MOREOVER, THE ASSESSEE SHOWN TH E AMOUNT OF SALES CONSIDERATION IS A/SO WRONG. LOOKIN G TO THE SHARE OF THE ASSESSEE IN THE LAND, THE ASSESSEE HAS BEEN RECEIVED OF RS. 1,14,16,667/-( 1/6 TH SHARE OF RS..6,85,00,000/-) WHERE IN THE REPLY THE ASSESSEE MENTIONED THAT HE ALONGWITH HIS FAMILY MEMBERS HAS RECEIVED RS. 1,13,95,000/-, ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 7 THEREFORE, THERE IS NO DOUBT ABOUT THE SHARE OF THE ASSESSEE IN THE SALE PROPERTY IE 1/6 TH SHARE. WHERE THE ASSESSEE HAS HAVING ONE SIXTH (1/6 TH ) SHARE IN THE SALE THEN THERE WILL NOT BE ANY DISPUTE REGARDING THE AMOUNT RECEIVED BY HIM OF RS.1,14,16,667/- OUT OF THE TOTAL SALE CONSIDERATIO N OF RS.6,85,00,000/-. SO THE ASSESSEE 'TRYING TO AVOID THE TAX LIABILITIES OF CAPITAL GAIN, ARISE FROM THE SAID SA LE CONSIDERATION BY INSERTING THE FAMILY MEMBERS WHO A RE NOT ACTUALLY THE SHARE HOLDER OF THE SAID PROPERTY. SO THE ADDITION, REGARDING THE AMOUNT RECEIVED DUE TO THE SAID TRANSACTION, COMES TO 1,14,16,667/-, AFTER CONSIDER ING THE REPLY OF THE ASSESSEE AND EVIDENCES THEREOF IS ADD ED TO THE TOTAL INCOME OF THE ASSESSEE INSTEAD OF THE ADDITIO N PROPOSED IN THE SHOW CAUSED DATED 15.11.2010 I.E. O F RS. 1,37,00,000/-. PENALTY U/S, 271(1)(C) OF THE I.T. A CT HAS BEEN INITIATED SEPARATELY ON THIS GROUND AS THE ASS ESSEE IS FREQUENTLY CHANGED HIS STANDS. THE ASSESSEE HAS ALS O FURNISHED THE IN ACCURATE PARTICULARS OF THE INCOME BY WAY OF EITHER SHOWN PAYMENT TO CONFIRMING PARTY WITHOUT ANY BASIS OR INTRODUCING FAMILY MEMBERS AND SHOWN THE PAYMENT TO THEM OUT OF THE RECEIVED SALE CONSIDERAT ION TO MINIMIZE THE TAX LIABILITIES ON THE CAPITAL GAIN.' 4. MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AU THORITY, WHEREIN VARIOUS SUBMISSIONS WERE MADE ON BEHALF OF ASSESSEE, WHICH ARE AS UNDER: 'AS REGARDS THE ISSUE RELATING TO THE SHARE OF THE APPELLANT IN THE PROPERTY SOLD, IT IS SUBMITTED THA T THE APPELLANT HAD 18 TH SHARE AS AGAINST 1/6 TH ASSESSED BY THE ASSESSING OFFICER. IT IS NOT DISPUTED BY THE AO THA T THE PROPERTY SOLD WAS ANCESTRAL IN NATURE IT DEVOLVED T O THE APPELLANT AND HIS BROTHERS FROM THEIR FOREFATHER. E VEN, THE EXTRACT OF RECORD OF RIGHT IN FORM NO.6 (SEE P.19-2 0) IT IS EVIDENT THAT THE SAID PROPERTY WAS ANCESTRAL AND VI DE ENTRY 2974 DATED 10.8.1982, THE NAMES OF THE APPELLANT AN D HIS THREE BROTHERS AND THEIR MOTHER WERE ENTERED. THE S HARE OF THE APPELLANT AT IS AS CLAIMED ON THE GROUND THAT B EING ANCESTRAL PROPERTY, THE APPELLANT'S SHARE WAS DIVID ED BEING ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 8 AN HUF PROPERTY OF HIS BRANCH AND NAMES OF TWO SONS OF THE APPELLANT, I.E., SHRI JAGDISHBHAI AND SHRI SHAILESH BHAI WERE ENTERED VIDE ENTRY NO.4263 DATED 17.2.1994. THUS, T HE PROPERTY UNDER CONSIDERATION WAS BEING HELD BY THE APPELLANT ALONG WITH HIS TWO SONS SINCE FEB'1994 AN D AS SUCH THE SHARE OF THE APPELLANT CAME TO BE 18 TH . IT WILL BE APPRECIATED THAT THE SAID LAND BEING ANCESTRAL PROP ERTY, EACH COPARCENER HAD SHARE IN THIS PROPERTY AND UPON DIVISION, THE 1/6 TH SHARE WAS DIVIDED BETWEEN THE APPELLANT AND HIS TWO SONS IN ACCORDANCE WITH THE PRINCIPLES OF HINDU LAW. THUS, THE APPELLANT HAD RIGHTLY CLAIM 18 TH SHARE IN THIS PROPERTY. IF MAY BE NOTED THAT BOTH THE OTHER CO-OW NERS, SHRI JAGDISH PATEL AND SHRI SHAILESH PATEL ARE ASSE SSED TO FAX AND HAVE FILED THEIR RETURN OF INCOME FOR A.Y. 2008-09 DECLARING THE CAPITAL GAIN IN RESPECT OF THIS PROPE RTY. THE COPY OF STATEMENT OF INCOME WITH ACK ARE ENCLOSED H EREWITH. AS REGARDS THE QUANTIFICATIONS OF CAPITAL GAINS, TH E APPELLANT SUBMITS THAT AO HAS ALLOWED EXEMPTION U/S 54EC IN RESPECT OF INVESTMENT IN NHAI CAPITAL GAINS BOND FO R RS. 36 LAKH, HOWEVER, WHEN THE ENTIRE 1 /6 TH SHARE IS TO BE TAXED BY AO IN THE HANDS OF THE APPELLANT, THE EXEMPTION CLA IMED U/S 54 BY THE SAID TWO CO-OWNERS SHOULD ALSO BE ALL OWED TO THE APPELLANT. SHRI JADDISH PATEL HAS CLAIMED INVES TMENT IN HOUSE PROPERTY AND CGS BANK DEPOSIT, AGGREGATING TO RS. 35,30,058 WHEREAS SHRI SHAILESH PATEL HAS CLAIMED EXEMPTION U/S 54 AND INVESTMENT IN NHAI TOTALING TO RS. 35,22,833/-. THE SAME IS EVIDENT FROM THE COMPUTATI ON OF INCOME ENCLOSED. AS A RESULT, THE COMPUTATION OF CA PITAL GAINS MADE BY AO WOULD GET REVISED AS UNDER: TOTAL SALE CONSIDERATION RS. 1,14,16,667 LESS; EXEMPTION U/S 54EC (SELF) RS. 36,00,000 EXEMPTION U/S 54 (JAGDISH) RS. 30,17,000 CGS BANK (JAGDISH) RS. 7,17,000 EXEMPTION U/S 54 (SHAILESH) RS 29,55,050 EXEMPTION U/S 54EC (SHAILESH) RS. 7,00,000 ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 9 RS.1,10,53,383 RS. 3,63,284 LESS: COST OF INDEXATION AS PER AO RS. 2,37,500 RS. 1,25,784 IN VIEW OF THE ABOVE, THE TAXABLE CAPITAL GAINS WOR KED OUT BY AO, REQUIRES TO BE MODIFIED. NEEDLESS TO STATE THAT THE ABOVE WORKING HAS BEEN GIVEN WITHOUT PREJUDICE TO THE APP ELLANT'S CONTENTION THAT HIS SHARE IS 18 TH AND INDEXATION IS TO BE MADE FROM THE YEAR OF ACQUISITION OF THE PREVIOUS O WNER. HAVING CONSIDERED THE SAME, CIT(A) HAS GRANTED RELI EF TO THE ASSESSEE BY DIRECTING ASSESSING OFFICER TO TREAT AS SESSEES SHARE IN PROPERTY DURING ASSESSMENT YEAR 1/18 TH INSTEAD OF 1/6 TH DETERMINED BY ASSESSING OFFICER. 4. SAME HAS BEEN OPPOSED ON BEHALF OF REVENUE INTER ALIA SUBMITTED THAT CIT(A) WAS NOT JUSTIFIED IN DIRECTIN G THE ASSESSING OFFICER TO TREAT THE ASSESSEES SHARE IN PROPERTY SOLD DURING YEAR AS 1/18 TH INSTEAD OF 1/6 TH DETERMINED BY ASSESSING OFFICER ON THE BASIS OF FORM 16 DATED 08.11.1993. ACCORDINGLY, ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. ON OTHER HAND LEARNED AUTHORIZED REPRESE NTATIVE SUPPORTED THE ORDER OF CIT(A). 4.1 AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATER IAL ON RECORD WE FIND THAT ASSESSING OFFICER INCREASED THE LONG TERM CAPITAL GAINS COMPUTED BY ASSESSEE ON TWO COUNTS- ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 10 I. ASSESSING OFFICER DID NOT ALLOW BENEFIT OF INDEX ATION FROM 01- 04-1981 AND ASSESSEES SHARE WHICH WAS CLAIMED TO B E 1/18TH WAS ASSESSED AS 1/6TH. ISSUE BEFORE US WITH REGARD TO SHARE OF ASSESSEE ONLY. ASSESSING OFFICER ASSESSED ASSESSEE S SHARE IN PROPERTY 1/6 TH INSTEAD OF CLAIMED BY HIM AT 1/18 TH . STAND OF ASSESSEE HAS BEEN THAT IT WAS AN ANCESTRAL PROPERTY JOINTLY HELD BY OTHER BROTHERS AND FAMILY MEMBERS. ASSESSEE SUB MITTED THE DETAILS OF COMPLETE FAMILY ALONG WITH AUTHORITI ES EVIDENCING THE OWNERS OF PROPERTY AND ASSESSEE'S SHARE. HOWEVE R ASSESSING OFFICER WENT BY DEED OF CONVENIENCE IN WH ICH FIVE PERSONS NAMES WERE MENTIONED AS SECOND PARTY AND NE XT- GENERATION CO-OWNERS WERE MENTIONED AS THIRD-PARTY CONFIRMING THE DEAL. ON THIS BASIS ALONE, ASSESSING OFFICER TREATED ASSESSEE'S SHARE AT 1/6 AS AGAINST 1/18 DEC LARED BY ASSESSEE. AS ASSESSING OFFICER IGNORED FOLLOWING F ACTS WHILE REACHING ABOVE CONCLUSION I. IN RELEVANT 7/12 RECORD FOR AGRICULTURAL LAND WI TH REVENUE OFFICER, NAME OF ASSESSEE ALONG WITH HIS TWO SONS N AMELY- JAGDISH RAMANLAL AND SAILESH RAMANLAL WERE THERE SI NCE 21.06.2005 MUCH BEFORE THE SALE OF PROPERTY IN QUES TION. THIS WAS AN EVIDENCE OF OWNERSHIP OF ASSESSEE ALONG WITH HIS TWO SONS. IN VIEW OF ABOVE, THE SHARE OF PROPERTY IN TH E NAME OF ASSESSEE'S SONS CANNOT BE TREATED AS ASSESSEE. ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 11 II. NAME OF ASSESSEE'S SONS ALONG WITH SONS OF ASSE SSEE'S BROTHERS ARE MENTIONED IN CONVEYANCE DEED AS PARTY ON THE THIRD PART CONFIRMING THE DEAL. III. PAYMENT OF SALE CONSIDERATION IS SEPARATELY MA DE TO EACH OF THE CO-OWNERS INCLUDING ASSESSEE'S SONS. ASSESS EE ONLY RECEIVED 1/18TH OF TOTAL CONSIDERATION RECEIVED ON TRANSFER. IV. ASSESSEE'S BOTH THE SONS HAVE DECLARED THE CAPI TAL GAIN ON ACCOUNT OF TRANSFER OF THIS LAND IN RESPECT OF THEI R 1/18 SHARE. THEREFORE IT IS CLEAR THAT THE SHARE OF ASSESSEE IS ONLY L/18TH AND REMAINING 1/12 IS OF HIS TWO SONS WHICH IS DULY REFLECTED IN THEIR INCOME TAX RECORDS. 4.1 SINCE ASSESSEE ALONG WITH HIS SONS HAD 1/6 SHAR E, ASSESSING OFFICER TAXED THE ENTIRE SHARE IN HIS HA ND WITHOUT CONSIDERING THE SHARE OF HIS SONS IGNORING THE FACT THAT THEY HAD RECEIVED THEIR SHARE OF PAYMENT AND REFLECTED T HE SALE CONSIDERATION IN THEIR RESPECTIVE RETURNS. THE LAN D RECORDS ESTABLISH THE FACT THAT ASSESSEE ALONG WITH HIS SON S WERE EQUAL OWNERS IN THE SAID PROPERTY AS DISCUSSED ABOVE. THE LAND RECORDS INCLUDING THE ASSESSEE'S SONS WAS OF 2005 W HICH IS MUCH PRIOR TO TRANSFER, THEREFORE, ASSESSING OFFICE R WAS NOT JUSTIFIED IN IGNORING THIS EVIDENCE. MOREOVER, ASS ESSEES SONS HAVE DISCLOSED THEIR INCOME FROM SALE OF THIS PROPE RTY IN THEIR RESPECTIVE TAX RETURNS INCLUDING SAME IN ASSESSEES HAND WOULD RESULT IN DOUBLE TAXATION. CONSIDERING THESE FACTS AND ITA NO. 2008/AHD/11 A.Y. 08-09 [ITO VS. SHRI RAMANLAL C. PATEL] PAGE 12 CIRCUMSTANCES, CIT(A) WAS JUSTIFIED IN DIRECTING TH E ASSESSING OFFICER TO TREAT THE DISCLOSED CAPITAL GAIN 1/18 TH SHARE. THIS REASONED FINDING CIT(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 5. AS A RESULT, APPEAL FILED BY THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 13 TH DAY OF MARCH, 2015. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 13/03/2015 TRUE COPY S.K.SINHA & & & & ' ' ' ' ('% ('% ('% ('% / COPY OF ORDER FORWARDED TO:- 1. +, / REVENUE 2. / ASSESSEE 3. // 0 / CONCERNED CIT 4. 0- / CIT (A) 5. '45 , , / DR, ITAT, AHMEDABAD 6. 589 :; / GUARD FILE. BY ORDER / & ,