PRASASH KRISHNAJI APTE, PUNE V. DEPUTY COMMISSIONER OF INCOME TAX 1(3), MUMBAI

ITA 4844/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5333 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 11-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR KESHRI
• Keywords: Share purchase agreement; Additional evidence; Fair market value; Bonafide mistake
• Section: 143(3); 54

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH MUMB AI BEFORE SHRI G.S. PANNU, VICE-PRESIDENT AND SHRI PAW AN SINGH, JUDICIAL MEMBER ITA NO. 4844/MUM/2017 (ASSESSMENT YEAR 2011-12 ) SHRI PRAKASH KRISHNAJI APTE B-803, SHRINIWAS BLOSSOM, BOULEVARD SOUTH MAIN ROAD, PLOT NO. 421, KOREGAON PARK, PUNE-411001. PAN: AABPA3173H VS. DCIT- (1)(3), 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : SHRI ANIL SATHE (AR) RESPONDENT BY : SHRI AJAY KUMAR KESHRI (DR) DATE OF HEARING : 01.05.2019 DATE OF PRONOUNCEMEN T : 29.05.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-3 [FOR SHORT THE LD. CIT(A)] , MUMBAI DATED 27.04.2017, WHICH ARISE FROM THE ASSESSMENT ORDER D ATED 15.01.2014 PASSED UNDER SECTION 143(3) FOR ASSESSMENT YEAR 201 1-12. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, FILED HIS RETURN OF INCOME ON 25.07.2011 DECLARING TOTAL INCOME AT R S. 1,71,20,561/-. IN THE RETURN OF INCOME, THE ASSESSEE CLAIMED CAPITAL GAIN ON SALE OF RESIDENTIAL FLAT JOINTLY OWNED WITH HIS MOTHER. THE ASSESSEE SO LD THE SAID RESIDENTIAL FLAT SITUATED IN ANDHERI FOR TOTAL SALE CONSIDERATI ON OF RS. 82,00,000/-. THE ASSESSEE BEING JOINT OWNER OF FLAT OFFERED THE 50% OF SALE PROCEED FOR ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 2 TAXATION IN HIS END AND CLAIMED LONG TERM CAPITAL G AIN (LTCG). THE ASSESSEE FURNISHED THE WORKING OF CAPITAL GAIN IN T HE FOLLOWING MANNER: DATE OF SALE 10.06.2010 RS. 41,00,000/- FAIR MARKET VALUE AS ON 01.04.1980 RS. 78,000/-, DATE OF PURCHASE 22.03.1980 WITH INDEXATION @ 711/100 RS. 5,54,580/- RS.35,45,420/- DEDUCTION U/S 54 INVESTMENT OF RS. 41,00,000 DATE OF INVESTMENT 31.07.2010 RS. 41,00,000/- LONG TERM CAPITAL GAIN NIL 3. DURING THE ASSESSMENT, THE ASSESSING OFFICER ASKED THE ASSESSEE TO SUBSTANTIATE HIS CLAIM. THE ASSESSEE FILED ITS REPL Y DATED 26.11.2013. IN THE REPLY, THE ASSESSEE STATED THAT HE HAS SOLD A RESID ENTIAL FLAT JOINTLY OWNED WITH HIS MOTHER. HE HAS DESTROYED ALL ITS ELECTRICI TY BILLS, SOCIETY MAINTENANCE BILL, AS HE WAS OF THE OPINION THAT HE HAS ALREADY SOLD HIS FLAT, THEREFORE, HE IS NOT REQUIRED TO MAINTAIN SUCH OLD RECORD. ONLY LAST MAINTENANCE OF ELECTRICITY BILL FOR JUNE 2010 WAS F URNISHED. THE ASSESSEE FURTHER STATED THAT HE HAS HANDED OVER THE ORIGINAL SHARE CERTIFICATE TO THE PURCHASER AND COPY OF WHICH IS NOT KEPT. THE ASSESS ING OFFICER AFTER PERUSAL OF ELECTRICITY BILL CONCLUDED THAT THE BILL IS IN THE NAME OF ASSESSEE. THE ASSESSING OFFICER ISSUED NOTICE TO THE SOCIETY FOR SEEKING COPY OF SHARE CERTIFICATE ISSUED IN RESPECT OF FLAT NO. 171, B-WI NG, AMEY CHS, D.N. NAGAR, ANDHERI (SOCIETY). THE SOCIETY FURNISHED THE COPY OF SHARE CERTIFICATE IN THE NAME OF FIRST/ORIGINAL OWNER NAM ELY DHANANJAY HEMANT ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 3 KELKAR DATED 01.01.1987 ALONG WITH MEMORANDUM OF TR ANSFER. ON VERIFICATION OF DOCUMENTS FURNISHED BY SOCIETY, THE ASSESSING OFFICER FIND THAT TRANSFER DETAILS REVEALS THAT ON 04.09.2009, T HIS FLAT WAS REGISTERED IN THE NAME OF ASSESSEE ONLY. ON 06.05.2010 AN ENTRY W AS MADE IN THE NAME OF ASSESSEE MRS. MALATI APTE (MOTHER OF ASSESSEE). THE ASSESSEE WAS ASKED TO CLARIFY THE DISCREPANCIES VIDE NOTICE DATED 16.0 1.2014. THE ASSESSEE FURNISHED ITS REPLY DATED 10.01.2014 (AS RECORDED B Y ASSESSING OFFICER IN PARA-5.6). IN THE REPLY, THE ASSESSEE STATED THAT O RIGINAL SALE-DEED (AGREEMENT TO SALE) WAS IN THE NAME OF ASSESSEE AND HIS MOTHER. SOCIETY BY MISTAKE ENTERED THE NAME OF ASSESSEE ONLY, WHICH WA S SUBSEQUENTLY RECTIFIED VIDE ENDORSEMENT DATED 06.05.2010 AND THE NAME OF HIS MOTHER WAS ALSO ENTERED. THE CONTENTION OF ASSESSEE WAS NO T ACCEPTED BY ASSESSING OFFICER. THE ASSESSING OFFICER TOOK THE V IEW THAT ONLY ONE ELECTRICITY BILL WAS PRODUCED BY ASSESSEE FOR THE M ONTH OF JUNE 2010 WHICH CLEARLY STATES THAT THE PROPERTY WAS REGISTERED IN THE NAME OF ASSESSEE ONLY. THE SHARE CERTIFICATE CLEARLY INDICATES THAT FLAT W AS REGISTERED IN ASSESSEES NAME ONLY. SUBSEQUENT ENTRY MADE ON 06.05.2010 BY I NSERTING THE NAME OF HIS MOTHER TO ACCOMMODATE THE ASSESSEE TO SHOW JOIN T OWNERSHIP. THE SOCIETY HAS NOT FILED ANY DOCUMENTARY EVIDENCE ON T HE BASIS OF WHICH SUBSEQUENT ENTRY WAS MADE. THE ASSESSING OFFICER BR OUGHT THE ENTIRE SALE PROCEED AT THE HAND OF THE ASSESSEE IN THE FOLLOWIN G MANNER: ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 4 DATE OF SALE 10.06.2010 RS. 82,00,000/- FAIR MARKET VALUE AS ON 01.04.1980 RS. 78,000/- DATE OF PURCHASE 22.03.1980 WITH INDEXATION @ 711//100 RS.554,580/- RS.76,45,420/- DEDUCTION U/S 54, INVESTMENT OF RS. 41,00,000/- , DATE OF INVESTMENT 31.07.2010 RS.41,00,000/- LONG TERM CAPITAL GAIN RS.35,45,420/- 4. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSE SSING OFFICER WAS CONFIRMED. THE LD. CIT(A) WHILE CONFIRMING THE ACTI ON OF ASSESSING OFFICER CONCLUDED THAT THE NAME OF MRS. MALATI APTE (MOTHER OF ASSESSEE) HAVE BEEN SUBSEQUENTLY WRITTEN ON THE AGREEMENT DAT ED 22.03.1980 WHICH IS THE ONLY DOCUMENT REFLECTING THE NAME OF MRS. MA LATI APTE. THIS DOCUMENT HAS NO LEGAL SANCTITY AS THE FLAT HAS NOT BEEN SOLD ON REGISTERED DOCUMENT SUCH AS SALE-DEED OR PURCHASE-DEED. THE BI LL ISSUED BY MUNICIPAL AUTHORITY LIKE ELECTRICITY BILL, PROPERTY TAX DOES NOT CONFIRM THE FACT THAT THE PROPERTY WAS JOINTLY OWNED BY ASSESSEE AND HIS MOTH ER. 5. THUS, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US BY RAISING THE FOLLOWI NG GROUNDS OF APPEAL: 1. THE LEARNED CIT(A) ERRED IN FACTS AND LAW IN CON FIRMING THE ADDITION OF RS. 35,45,420/- MADE BY THE LEARNED ASSESSING OFFIC ER BY TREATING THE ENTIRE SALE PROCEEDS OF RS. 82,00,000/- ON SALE OF FLAT AS ACCRUING AND ARISING TO THE APPELLANT WHEN THE APPELLANT WAS ONLY 50% OWNER OF THE FLAT AND THE BALANCE 50% SHARE BELONGED TO HIS MOTHER, MALATI APTE. ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 5 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THE EVID ENCE ESTABLISHING THE JOINT OWNERSHIP OF MALATI APTE, WITH THE APPELLANT CONSISTING OF THE FOLLOWING (A) THE PURCHASE AGREEMENT IN WHICH THE NAME OF MRS . MALATI APTE WAS INCLUDED (B) THE GENERAL POWER OF ATTORNEY EXECUTED BY THE P ERSON FROM WHOM THE APPELLANT AND HIS MOTHER HAD PURCHASED THE FLAT, WH ICH CONTAINED AN ASSERTION BY HIM THAT THE FLAT HAD BEEN SOLD BY HIM TO THE APPELLANT AND MRS. MALATI APTE. (C) COPY OF SHARE CERTIFICATE OF THE SOCIETY AND TH E MEMORANDUM OF TRANSFER WHICH CONTAINED THE NAME OF MRS. MALATI AP TE AT THE FIRST INSTANCE (D) CERTIFICATE OF THE SOCIETY ISSUED TO THE COLLEC TOR OF STAMPS DATED 10 TH DECEMBER 2008 WHICH CLEARLY STATES THAT THE PURCHAS ERS WERE THE APPELLANT AND MRS. MALATI APTE HIS MOTHER. (E) THE SALE DEED WHICH GAVE RISE TO THE CAPITAL GA IN, IN WHICH THERE WAS A CLEAR ASSERTION THAT AFTER VERIFICATION THE PURCHAS ERS WERE SATISFIED ABOUT THE TITLE OF THE APPELLANT AND HIS MOTHER MRS. MALA TI APTE. 3. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THA T WHILE THE PURCHASE DEED WAS A XEROX COPY, THE CONTENTS THEREOF NAMELY THE O WNERSHIP OF THE APPELLANT AND HIS MOTHER STOOD FULLY CORROBORATED B Y THE DOCUMENTS SET OUT IN THE PRECEDING GROUND. 4. THE LEARNED CIT (A) FAILED TO APPRECIATE THAT TH E CO-OWNER, THE APPELLANTS MOTHER HAD FILED A RETURN OF INCOME REF LECTING HER SHARE OF THE CAPITAL GAIN. 6. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (D R) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. A R OF THE ASSESSEE SUBMITS THAT DURING THE RELEVANT PERIOD UNDER CONSI DERATION, THE ASSESSEE SOLD A RESIDENTIAL FLAT FOR A CONSIDERATION OF RS. 82,00,000/-. THE FLAT WAS JOINTLY PURCHASED BY ASSESSEE AND HIS MOTHER IN 198 1. IN THE RETURN OF INCOME, THE ASSESSEE OFFERED 50% OF SALE PROCEEDS O F HIS SHARE AND ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 6 COMPUTED LTCG AND PAID TAX ACCORDINGLY. THE MOTHER OF ASSESSEE ALSO DECLARED REMAINING 50% SHARE OF CAPITAL GAIN ON THE SALE OF SAID FLAT. DURING THE ASSESSMENT, THE ASSESSING OFFICER ASKED THE ASSESSEE TO PROVE THE JOINT OWNERSHIP ALONG WITH THE DOCUMENTARY EVID ENCE SUCH AS SOCIETY MAINTENANCE BILL, PROPERTY TAX BILL, AND ELECTRICIT Y BILL AND SOCIETY SHARE CERTIFICATE. THE ASSESSEE COULD NOT PRODUCE ALL THE SE DOCUMENTS AS THE DOCUMENTS AS THE ASSESSEE WAS UNDER BELIEF THAT AFT ER SALE OF THE SAID FLAT, THE ASSESSEE WAS NOT REQUIRED TO MAINTAIN SUCH RECO RD. THE ASSESSEES MOTHER BEING OLD LADY RESIDING THE FLAT AND ALSO NO T KEPT THE SAME. THE ASSESSEE FURNISHED OTHER DOCUMENT SUCH AS PURCHASE- DEED (AGREEMENT TO SALE, POWER OF ATTORNEY ETC), WHEREIN THE NAME OF A SSESSEE AND HIS MOTHER IS WRITTEN. THE NAME OF MOTHER IS WRITTEN IN HANDWRITI NG IN THE SAID PURCHASE- DEED ALONG WITH INITIAL SIGNATURE OF ALL THE PARTIE S, THE NAME OF ASSESSEE AND HIS MOTHER ARE MENTIONED AS A TRANSFEROR. THIS FACT WAS ALSO CONFIRMED BY SOCIETY IN MEMBERSHIP FORM. IN RESPECT TO THE ENQUI RY CONDUCTED BY ASSESSING OFFICER, THE SOCIETY FURNISHED THE COPY O F SHARE CERTIFICATE AND MEMORANDUM ON TRANSFER, WHEREIN THE NAME OF ASSESSE E AND HIS MOTHER ARE DULY RECORDED. THE SOCIETY ALSO ISSUED A LETTER TO THE COLLECTOR OF STAMP, WHICH CLEARLY ESTABLISHED THE FACT THAT ASSESSEE AN D HIS MOTHER, BOTH WERE MEMBERS OF SOCIETY. THE ASSESSING OFFICER NOT APPRE CIATED THE DOCUMENTARY EVIDENCES FURNISHED BY ASSESSEE AND INC LUDED THE ENTIRE SALE PROCEED IN THE COMPUTATION OF CAPITAL GAINS IN THE HAND OF ASSESSEE. DURING ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 7 THE ASSESSMENT, THE ASSESSEE ALSO FURNISHED THE SHA RE CERTIFICATE IN THE NAME OF DHANANJAY HEMANT KELKAR, WHO WAS ORIGINAL OWNER OF THE FLAT ALONG WITH MEMORANDUM OF TRANSFER RECORDING THE TRANSFER ENTRIES. THE ASSESSING OFFICER NOT APPRECIATED THE FACT THAT INITIALLY, TH E MEMORANDUM OF TRANSFER DATED 28.02.1998, IN THE RECORD OF THE SOCIETY CONT AINED THE NAME OF SMT. MALATI APTE (MOTHER OF ASSESSEE) THE SOCIETY ADDED THE NAME OF ASSESSEE AND HIS MOTHER AFTER SATISFACTION OF JOINT OWNERSHI P. THIS MEMORANDUM OF TRANSFER AFFIRMED THE FACT THAT MOTHER OF ASSESSEE WAS HAVING EQUAL RIGHT, TITLE AND INTEREST IN THE SAID PROPERTY WHICH CANNO T BE DENIED TOTALLY. THE SOCIETY ISSUED A CERTIFICATE DATED 10.12.2018 TO TH E COLLECTOR OF STAMP, MUMBAI METROPOLITAN REGIONAL DEVELOPMENT AUTHORITY (MMRDA) STATING THAT ASSESSEE AS WELL AS HIS MOTHER ARE BONAFIDE ME MBER OF THE SOCIETY. THE INSERTION OF ASSESSEES MOTHER NAME IN THE PURCHASE -DEED WAS A BONAFIDE MISTAKE WHICH WAS CORRECTED IMMEDIATELY AT THE TIME OF EXECUTION OF THE DOCUMENTS AND HER NAME WAS INCLUDED. THE MOTHER OF ASSESSEE HAS ALREADY INCLUDED THE SHARE OF PROCEED OF HER SHARE WHILE CO MPUTING CAPITAL GAIN AT THE TIME OF FILING HER RETURN OF INCOME. THE INCLUS ION OF ENTIRE SALE PROCEED IN ASSESSEES HAND WOULD AMOUNT TO DOUBLE TAXATION. THE ASSESSEE FURNISHED THE COPY OF THE FOLLOWING DOCUMENTS. 7. THE LD. AR FOR THE ASSESSEE ALSO FILED THE COPIES O F THE FOLLOWING DOCUMENTS. 1 WRITTEN SUBMISSION DATED S' SEPTEMBER, 2015 FILED B EFORE THE CIT(A) 2 SUBMISSION DATED 11 TH NOVEMBER 2013 CONTAINING CERTIFICATE DATED ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 8 8TH DECEMBER, 2012 ISSUED BY TH E SOCIETY FILED BEFORE THE AO 3 SUBMISSION DATED 21 ST AUGUST, 2013 CONTAINING RETURN ACKNOWLEDGEMENT ALONG WITH COMPUTATION OF MRS. MALA TI APTE FOR AY 2011-12 FILED BEFORE AO 4 APPLICATION FOR ADDITIONAL EVIDENCE DATE D 08.09.2015 5 LETTER DATED 23.06.1985 ADDRESSED TO MRS. MALATI AP TE BY AMEYA CO - OP HOUSING SOCIETY LTD. 6 GENERAL POWER OF ATTORNEY EXECUTED BY MR. DHANANJAY KELKAR IN FAVOUR OF MRS. MALATI APTE 7 COPY OF REMAND REPORT DATED 11.04.2017 8 PURCHASE DEED DATED 21 ST MARCH, 1980 9 SALES AGREEMENT DATED 11 TH JUNE, 2010 10 SHARE CERTIFICATE ALONG WITH MEMORANDUM OF TRANS FER BESIDES THE ABOVE REFERRED DOCUMENTS THE LD AR FOR THE ASSESSEE ALSO FURNISHED COPY OF BANKERS CHEQUE/DEMAND DRAFT OF RS . 13,50,000/- DATED 29.05.2010 DRAWN BY HDFC BANK IN THE NAME OF MALAT I K. APTE, DEMAND DRAFT OF RS. 27,45,599/- DATED 29.05.2010 DRAWN BY STANDARD CHARTERED BANK IN THE NAME OF MALATI K. APTE. DEMAND DRAFT OF RS. 13,50,000/- HDFC BANK DATED 29.05.2010 AND DEMAND DRAFT OF RS.2 7,45,599/- STANDARD CHARTERED BANK DATED 28.05.2010, BOTH IN T HE NAME OF PRAKASH K. APTE . 8. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE (DR) FOR THE REVENUE SUPPORTED THE ORDER OF LOWER AUTHORITIES. T HE LD. DR FURTHER SUBMITS THAT THE ASSESSING OFFICER AS WELL AS LD. C IT(A) CONSIDERED THE DOCUMENTARY EVIDENCE FURNISHED BY ASSESSEE. IN THE AGREEMENT TO SALE DATED 22.03.1980, THE NAME OF MOTHER OF ASSESSEE WAS INSE RTED SUBSEQUENTLY I.E. AFTER EXECUTION OF AGREEMENT TO SALE. THE AGREEMENT TO SALE IS A TYPE DOCUMENT; HOWEVER, THE NAME OF MOTHER OF ASSESSEE I S INSERTED BY ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 9 HANDWRITING. THE DOCUMENT PRODUCED I.E. AGREEMENT T O SALE BY ASSESSEE IS A MANUFACTURED AND SELF-SERVING DOCUMENT. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDER OF AUTHORITIES BELOW. THE ASSESSI NG OFFICER WHILE PASSING THE ASSESSMENT ORDER, MADE ADDITION OF RS. 35,45,42 0/- ON ACCOUNT OF CAPITAL GAIN TO THE TOTAL INCOME OF ASSESSEE. BEFOR E MAKING ADDITION, THE ASSESSING OFFICER NOTED THAT ASSESSEE CLAIMED TO HA VE SOLD A RESIDENTIAL FLAT WHICH WAS JOINTLY OWNED BY HIM AND HIS MOTHER AND 5 0% OF SALE PROCEEDS WAS OFFERED FOR TAXATION IN HIS OWN HAND. THE ASSES SEE WAS ASKED TO SUBSTANTIATE HIS CLAIM AND TO PROVE THE JOINT OWNER SHIP. THE ASSESSEE FILED HIS REPLY DATED 26.11.2013. IN REPLY, THE ASSESSEE STATED THAT HE DO NOT HAVE THE ELECTRICITY, SOCIETY AND RECEIPTS WHICH HAS BEE N DESTROYED. THE ASSESSEE FURNISHED THE ELECTRICITY BILL FOR THE MONTH OF JUN E 2010. THE ASSESSING OFFICER CONDUCTED THE ENQUIRY FROM THE SOCIETY WHER E THE SAID FLAT WAS SITUATED. THE SOCIETY FURNISHED THE COPY OF SHARE C ERTIFICATE IN THE NAME OF PREDECESSOR OF ASSESSEE (DHANANJAY HEMANT KELKAR) D ATED 01.01.1987 ALONG WITH MEMORANDUM OF TRANSFER. ON VERIFICATION OF SAID DOCUMENT, THE ASSESSING OFFICER FIND THAT THE FLAT WAS REGISTERED IN THE NAME OF ASSESSEE ONLY AND THAT THE NAME OF HIS MOTHER WAS MUTATED ON LY ON 06.05.2010. ON ISSUING FURTHER SHOW CAUSE TO THE ASSESSEE ON 10.01 .2014, THE ASSESSEE CONTENDED THAT ORIGINAL SALE-DEED (IN FACT AGREEMEN T TO SALE) WAS IN THE NAME OF ASSESSEE AND HIS MOTHER AND THAT SOCIETY BY MISTAKE REGISTERED THE ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 10 NAME OF ASSESSEE ONLY, WHICH WAS RECTIFIED SUBSEQUE NTLY. THE CONTENTION OF ASSESSEE WAS NOT ACCEPTED BY ASSESSING OFFICER. THE ASSESSING OFFICER TOOK THE VIEW THAT ONLY ONE ELECTRICITY BILL WAS PR ODUCED BY ASSESSEE FOR THE MONTH OF JUNE 2010 WHICH CLEARLY STATES THAT THE PR OPERTY WAS REGISTERED IN THE NAME OF ASSESSEE ONLY. THE SHARE CERTIFICATE CL EARLY INDICATES THAT FLAT WAS REGISTERED IN ASSESSEES NAME ONLY. SUBSEQUENT ENTRY MADE ON 06.05.2010 TO ACCOMMODATE THE ASSESSEE TO SHOW JOIN T OWNERSHIP. THE SOCIETY HAS NOT FILED ANY DOCUMENTARY EVIDENCE ON T HE BASIS OF WHICH SUBSEQUENT ENTRY WAS MADE. THE LD. CIT(A) ALSO CONF IRMED THE ACTION OF ASSESSING OFFICER HOLDING THAT WHILE CONFIRMING THE ACTION OF ASSESSING OFFICER CONCLUDED THAT THE NAME OF MRS. MALATI APTE (MOTHER OF ASSESSEE) HAVE BEEN SUBSEQUENTLY WRITTEN ON THE AGREEMENT DAT ED 22.03.1980 WHICH IS THE ONLY DOCUMENT REFLECTING THE NAME OF MRS. MA LATI APTE. THIS DOCUMENT HAS NO LEGAL SANCTITY AS THE FLAT HAS NOT BEEN SOLD ON REGISTERED DOCUMENT SUCH AS SALE-DEED OR PURCHASE-DEED. THE BI LL ISSUED BY MUNICIPAL AUTHORITY LIKE ELECTRICITY BILL, PROPERTY TAX DOES NOT CONFIRM THE FACT THAT THE PROPERTY WAS JOINTLY OWNED BY ASSESSEE AND HIS MOTH ER. 10. BEFORE US, THE ASSESSEE HAS FURNISHED THE COPY OF C ERTIFICATE ISSUED BY COLLECTOR OF STAMP DATED 10.12.2008 WHEREIN THE SOC IETY I.E. AMEYA CHS (SUPRA) CERTIFIED THAT ASSESSEE AND HIS MOTHER MALATI K. APTE WAS THE BONAFIDE MEMBER OF THE SOCIETY AND PURCHASE THE FLA T NO. 17 FROM DHANANJAY HEMANT KELKAR VIDE AGREEMENT TO SALE DATE D 22.03.1980. COPY ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 11 OF LETTER DATED 26.03.1985 ISSUED BY SOCIETY ADDRES SED TO MOTHER OF ASSESSEE ACKNOWLEDGED THE APPLICATION OF MOTHER OF ASSESSEE ABOUT THE MUTATION/TRANSFER OF FLAT IN HER NAME. COPY OF GENE RAL POWER OF ATTORNEY DATED 4 TH AUGUST 1986 IN THE NAME OF ASSESSEE AND HIS MOTHER , AGREEMENT TO SALE DATED 22.03.1980 IN THE NAME OF ASSESSEE AND H IS MOTHER IS INSERTED BY HANDWRITING. COPY OF RECEIPT OF CONSIDERATION FOR P URCHASE OF SAID FLAT DATED 17 TH OCTOBER 1980 FOR RS. 18,000/- AND COPY OF AGREEMEN T TO SALE FOR SALE OF THE FLAT EXECUTED BY ASSESSEE AND HIS MOTHE R DATED 11.06.2010. 11. ON SALE OF SAID RESIDENTIAL FLAT, THE ASSESSEE AS W E1LL AS HER MOTHER RECEIVED EQUAL (50% EACH) OF SALE CONSIDERATION. THE COPY OF DEMAND DRAFT/BANKERS CHEQUES RECEIVED BY ASSESSEE AND HIS MOTHER IS ALSO PLACED ON RECORD. THE ASSESSING OFFICER HAS NOT DISPUTED T HE FACT THAT MOTHER OF ASSESSEE OFFERED THE GAIN RECEIVED BY HER ON SALE O F SAID RESIDENTIAL FLAT. NARROW DISPUTE BEFORE US IS IF THE ASSESSEE WAS ALS O JOINT OWNER OF THE SAID FLAT. THE BONE OF CONTENTION ON WHICH REVENUE AS WE LL AS ASSESSEE LOCKED THEIR HORN IS THE AGREEMENT TO SALE DATED 22.03.198 0. IN THE SAID AGREEMENT TO SALE THE NAME OF MOTHER OF ASSESSEE IS INSERTED BY HANDWRITING AND NECESSARY CORRECTIONS WERE MADE IN THE SAID DOCUMEN T. THE PERUSAL OF SAID AGREEMENT TO SALE REVEALS THAT THE SAID AGREEMENT I S INITIALED BY SELLER AS WELL AS BY PURCHASER. WE HAVE ALSO PERUSED THE COPY OF AGREEMENT TO SALE DATED 10.06.2010 OF THE SAID FLAT EXECUTED BY THE A SSESSEE AND HIS MOTHER IN FAVOUR OF PURCHASER NAMELY SHILPA SAMIR KUSHE AND S AMIR CHANDRAKANT ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 12 KUSHE, WHEREIN THE PURCHASER HAS ACCEPTED THE MOTHE R OF THE ASSESSEE AS JOINT OWNER. THIS AGREEMENT TO SALE DATED 10.06.201 0 IS DULY REGISTERED WITH THE SUB-REGISTRAR CONCERNED. THE SUB-REGISTRAR ALSO ACCEPTED THE MOTHER OF THE ASSESSEE AS JOINT OWNER. 12. THE SOCIETY WHERE THE SAID FLAT IS SITUATED ALSO AC KNOWLEDGED THE FACT THAT SMT. MALATI K. APTE (MOTHER OF ASSESSEE) WAS ALSO A BONAFIDE MEMBER OF THE SOCIETY. IN 1985 THE MOTHER OF THE ASSESSEE APP LIED FOR MUTATION OF HER NAME IN THE RECORD OF THE SOCIETY AND HER APPLICATI ON WAS DULY ACKNOWLEDGED. THE SHARE CERTIFICATE ISSUED IN THE N AME OF ORIGINAL MEMBER OF SOCIETY WAS ALSO TRANSFERRED IN THE NAME OF ASSE SSEE AS WELL AS HIS MOTHER. ALL DOCUMENTARY EVIDENCE CLEARLY SHOWS THAT THE MOTHER OF ASSESSEE WAS HAVING EQUAL RIGHT, TITLE AND INTEREST IN THE SAID FLAT. MOREOVER, THE COLLECTOR OF STAMP/REGISTRAR ALSO ACCEPTED THE MOTHER OF ASSESSEE AS ONE OF THE CO-OWNER WHILE REGISTERED THE SALE AGREE MENT IN FAVOUR OF PURCHASER. THE ELECTIVITY BILLS OR THE SOCIETY MAIN TENANCE RECEIPT TAX DOES NOT PROVE THE TITLE OF THE PROPERTY, RATHER THE TRA NSFER DOCUMENTS SUCH AS SALE DEEDS ETC ARE THE ONLY DOCUMENTS TO PROVE THE TITLE OVER THE PROPERTY. HOWEVER, IN THE PRESENT CASE, THE ASSESSEE HAS SHOW N AGREEMENT TO SALE, POWER OF ATTORNEY AND PAYMENT OF CONSIDERATION, WHI CH THROUGH THE LIGHT ON THE RIGHT, TITLE AND OWNERSHIP OF THE FLAT. AT THE COST OF REPETITION, WE MAY REFER THAT THE SUB-REGISTRAR, UNDER THE JURISDICTIO N OF WHICH THE SALE AGREEMENT WAS REGISTERED HAS ACCEPTED THE MOTHER OF THE ASSESSEE AS JOINT ITA NO. 4844 MUM 201 7-SHRI PRAKASH KRISHNAJI APTE. 13 OWNER AND PAID THE HALF OF THE CONSIDERATION; THE A SSESSING OFFICER IN ABSENCE OF ADVERSE EVIDENCE SHOULD HAVE ACCEPTED TH E JOINT OWNERSHIP OF THE ASSESSEE. 13. IN OUR VIEW, THE ASSESSEE HAS CLEARLY DISCHARGED HI S ONUS BY PROVING THE FACT THAT ASSESSEE WAS JOINT OWNER OF THE FLAT ALON G WITH HIS MOTHER, THEREFORE, IN OUR VIEW, THE ASSESSEE IS ENTITLED FO R THE BENEFIT OF LTCG. IN THE RESULT, THE GROUNDS OF APPEAL RAISED BY ASSESSE E ARE ALLOWED. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/05/2019. SD/- SD/- G.S. PANNU, PAWAN SINGH VICE-PRESIDENT JUDICIAL MEMBER MUMBAI, DATE: 29.05.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI