Shri Maya Parkash, Ghaziabad V. ITO, Ghaziabad

ITA 713/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4677 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 07-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANCHAL KHANDELWAL
• Assessee Lawyers: SANJAY PRASHAR S
• Section: 54F; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT ITA NO.713/DEL/2017 ASSESSMENT YEAR : 2008-09 MAYA PARKASH, SADIQ NAGAR, GHAZIABAD. PAN : BLVPP7883B VS. ITO, WARD-1(4), GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANOOP SHARMA & SHRI SANJAY PRASHAR, ADVOCATES RESPONDENT BY: MS ANCHAL KHANDELWAL, SR. DR DATE OF HEARING : 11.09.2017 DATE OF PRONOUNCEMENT: 11.09.2017 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 25.11.2016 IN RELATION TO ASSESSMENT YEAR 2008-09. 2. THE FIRST ISSUE IS AGAINST THE COMPUTATION OF LONG-TERM CAPITAL GAIN BY TREATING THE ASSESSEE AS HAVING 1/9 TH SHARE AS AGAINST THE ASSESEES CLAIM OF HAVING 1/24 TH SHARE IN THE PROPERTY. ITA NO.713/DEL/2017 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT S OME INFORMATION WAS RECEIVED AS PER WHICH THE ASSESSEE SOLD IMMOVABLE P ROPERTY DURING THE YEAR. SINCE THE ASSESSEE HAD NOT DECLARED ANY CAPI TAL GAIN, A NOTICE U/S 148 WAS ISSUED. IT WAS CONTENDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE ASSESSEE WAS HAVING ONLY 1/24 TH SHARE IN THE PROPERTY, WHICH WAS REJECTED BY THE ASSESSING OFFICER, HE HELD THAT THE ASSESSEE WAS HAVING 1/9 TH SHARE. ACCORDINGLY, THE COMPUTATION OF LONG-TERM CAPITAL GAIN WAS MADE BY MAKING AN ADDITION OF RS.12,52,872/-. NO R ELIEF WAS ALLOWED IN THE FIRST APPEAL. THE ASSESSEE IS AGGRIEVED. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT THE ASSESSE E HAS PLACED ON RECORD CERTAIN DOCUMENTS SHOWING HIS 1/8 TH SHARE IN THE PROPERTY CONTRARY TO THE ASSESSING OFFICER TAKING 1/24 TH SHARE. WHAT IS RELEVANT FOR THE DECISION ABOUT THE SHARE OF A PERSON IN THE PROPERTY IS HIS ACTUAL SHARE AND NOT THE NUMBER OF PERSONS CO-OWNING THE PROPERTY. ONE PERS ON MAY POSSIBLY HOLD SUBSTANTIAL PART IN THE CO-OWNED PROPERTY. UNDER S UCH CIRCUMSTANCES, IT BECOMES ESSENTIAL TO CONSIDER ONES ACTUAL SHARE IN THE PROPERTY RATHER THAN THE NUMBER OF PERSONS CO-OWNING THE SAME. IN THE GI VEN FACTS AND ITA NO.713/DEL/2017 3 CIRCUMSTANCES, I AM OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR DECIDING THIS ISSUE AFRESH. I ORDER ACCORDINGLY AND DIRECT HIM TO FIRSTLY ASCERTAIN THE ASSESSEES CORRECT SHARE IN THE PROPERTY SOLD AND THEN DETERMINE THE AMOUNT OF LONG-TERM CAPITAL GAIN. 5. THE SECOND GROUND ABOUT THE CLAIM OF DEDUCTION U/S 54F WAS NOT PRESSED BY THE LD. AR. THE SAME IS, THEREFORE, DIS MISSED AS NOT PRESSED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS PARTLY ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2017. SD/- (R.S. SYAL) VICE PR ESIDENT DATED: 11 TH SEPTEMBER, 2017. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI