MAHESH ARUN GAWLI, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 21(2), MUMBAI

ITA 7323/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1524 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 21-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital asset; Gift; Cost of acquisition; Benefit of exemption; Capital Gains
• Section: 54F; 2(14); 54EC; 13; 54; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (V I RTUAL COURT) , G BENCH MUMBAI BEFORE SHRI JUSTICE P P BHATT, PRESIDENT & SHRI M.BALAGANESH, AM ITA NO. 7323 /MUM/ 20 18 ( ASSESSMENT YEAR : 2012 - 13 ) SHRI MAHESH ARUN GAWLI R.NO.32, 3 RD FLOOR GE ETAI CHS LTD., B.J. MARG, BYCULLA (W) MUMBAI 400 001 VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 21(2), MUMBAI PAN/GIR NO. AJAPG8519M (APPELLANT ) .. (RESPONDENT ) ITA NO. 4220 /MUM/ 2017 ( ASSESSMENT YEAR : 2012 - 13 ) MRS.ASHA ARUN GAWLI ROOM NO.32, 3 RD FLOOR GEETAI CHS LTD., B.J MARG, BYCULLA WEST MUMBAI 400 011 VS. ITO WARD 21(1) - 2 1 ST FLOOR, PIRAMAL CHAMBERS LALBAUG, P AREL, MUMBAI 400 012 PAN/GIR NO. AAKPG1429M (APPELLANT ) .. (RESPONDENT ) ITA NO. 7324 /MUM/ 2018 ( ASSESSMENT YEAR : 2012 - 13 ) MS.YOGITA ARUN GAWLI R.NO.32, 3 RD FLOOR GEETAI CHS LTD., B.J. MARG, BYCULLA (W) MUMBAI 400 001 VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 21( 2 ), MUMBAI PAN/GIR NO. AAKPG1429M (APPELLANT ) .. (RESPONDENT ) ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 2 ASSESSEE BY DR. K.SHIVARAM - SR. ADVOCATE & MS. NEELAM JADHAV REVENUE BY SHRI V. VINODKUMAR - SR. AR DATE OF HEARING 29 / 09 /2020 DATE OF PRONOUNCEMENT 11 / 12 /2020 / O R D E R PER M. BALAGANESH (A.M) : ITA NO.7323/MUM/2018 (A.Y.2012 - 13) THIS APPEAL IN ITA NO. 7323/MUM/201 8 FOR A.Y. 2012 - 13 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 48, MUMBAI IN APPEAL NO. CIT(A) - 48/IT - 289/AC - 21(2)/2018 - 19 DATED 22/02/2016 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) R.W.S. 147 OF THE I NCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) DATED 14/01/2016 BY THE LD. ASST. CO MMISSIONER OF INCOME TAX 21(2), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). ITA NO.4220/MUM/2017 (A.Y.2012 - 13) THIS APPEAL IN ITA NO. 4220/MUM/2017 FOR A.Y. 2012 - 13 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 33, MUMBAI IN APPEAL NO. C IT(A) - 33/RG .21/247/2015 - 16 DATED 12/04/2017 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER R EF ERRED TO AS ACT) BY THE LD. INCOME TAX OFFICER 21(1)(2), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 3 ITA NO.7324/MUM/2018 (A.Y.2012 - 13) THIS APPEAL IN ITA NO. 7324/MUM/2018 FOR A.Y. 2012 - 13 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) - 48, MUMBAI IN APPEAL NO. CIT(A) - 48/IT - 306/AC - 21(3)/2018 - 19 DATED 26.10.2018 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) DATED 26/03/2015 BY THE LD. ASST. COMM ISSIONER OF INCOME TAX 21( 3 ), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). FACTS OF APPEAL IN THE CASE OF MRS. ASHA ARUN GAWLI IN ITA NO.4220/MUM/2017 AND THE PROCEEDINGS BEFORE THE LD. AO AND LD . CITA 2. THE ONLY EFFECTIVE ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE SUM OF RS.1,20,00,000/ - RECEIVED BY THE ASSESSEE FROM THE SALE OF PLOT OF LAND COULD BE TREATED AS LONG TERM CAPITAL GAINS OR INCOME FROM OTHER SOURCES. THE INTERCONNECTED ISSUE INVOLVED THEREIN TO BE DECIDED IS AS TO WHETHER AS SESSEE WOULD BE ENTITLED FOR DEDUCTION U/S.54 /54F AND 54EC OF THE ACT IF THE AFORESAID RECEIPT IS ASSESSED AS LONG TERM CAPITAL GAINS. 3. THE BRIEF FACTS OF T HE ISSUE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAD FILED HER RETURN OF INCOME FOR THE A.Y.20 12 - 13 ON 08/07/2013 DECLARING TOTAL INCOME OF RS.18,27,283/ - WHICH INCLUDES INCOME FROM HOUSE PROPERTY OF RS.9,31,710/ - ; INCOME FROM CAPITAL GAINS OF RS.8,48,502/ - AND INCOME FROM OTHER SOURCES OF RS.1,47,071/ - . THE BREAK - UP OF INCOME EARNED FROM CAPITAL G AINS IN THE SUM OF RS.8,48,502/ - IS AS UNDER: - ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 4 WORKING OF LONG TERM CAPITAL GAINS ON SALE OF LAND AT PISOLI LAND PURCHASE IN 1992 - 93 FOR RS.43,037/ - INDEXED COST OF PURCHASE = 43,037 X 785 / 223 - 1,51,498 LESS : SALE PROCEEDS 1,20,00,000 ----------------- TAXABLE LONG TERM CAPITAL GAINS 1,18,48,502 L ESS : DEDUCTION UNDER SECTION 54 EC DEPOSIT IN REC BONDS 50,00,000 DEPOSIT IN CAPITAL GAIN A/C. 60,00,000 1,10,00,000 ---------------- ----- ----------- TAXABLE CAPITAL GAIN 8,48,502 ---------------- ROUNDED OFF 8,48,500 ========= 3.1. THE BRIEF FACTS AS NARRATED IN PAGE 2 OF THE ORDER OF THE LD. CIT(A) ARE THAT ASSESSEE RECEIVED A SUM OF RS.1,20,00,0 00/ - AS HER SHARE FROM SALE OF PLOT OF LAND BEARING S.NO.9, SITUATED AT PISOLI VILLAGE, HAVELLI TALUKA, PUNE. THE ASSESSEE REFLECTED THE SAID RECEIPT OF RS.1,20,00,000/ - AS SHARE OF SALE CONSIDERATION ON SALE OF ABOVE MENTIONED PLOT. AFTER CLAIMING THE BEN EFIT OF INDEXATION OF COST OF PURCHASE, THE ASSESSEE REPORTED LONG TERM CAPITAL GAINS OF RS.1,18,48,502/ - AND MADE INVESTMENT IN RURAL ELECTRIFICATION CORPORATION (REC) BONDS TO THE TUNE OF RS.50,00,000/ - AND CLAIMED DEDUCTION U/S.54EC OF THE ACT FOR THE S AME AND FURTHER DEPOSITED A SUM OF RS.60,00,000/ - IN CAPITAL GAINS ACCOUNT SCHEME FOR THE PURPOSE OF RE - INVESTMENT IN ANOTHER RESIDENTIAL HOUSE PROPERTY AND CONSEQUENTLY CLAIMED DEDUCTION U/S.54 /54F OF THE ACT . WE FIND THAT THE LD. CIT(A) HAD OBSERVED THA T T HE ASSESSEE MADE A DECLARATION IN RESPECT OF THE ABOVE MENTIONED PLOT OF LAND UNDER THE VDIS SCHEME IN 1997 AND OBTAINED A CERTIFICATE FROM CIT, CITY VII, MUMBAI, ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 5 WHEREIN THE SAID L AND WAS DECLARED BY HER ALONG WITH HER 4 MINOR CHILDREN NAMELY (I) MISS. GEETA GAWLI (II) MISS YOGITA GAWLI, (III) MAST ER MAHESH GAWLI AND (IV) MASTER YOGESH GAWLI. THE DECLARATION UNDER THE VDIS SCHEME WAS MADE BY THE ASSESSEE IN HER CAPACITY AS NATURAL GUARDIAN OF THE MINOR CHILDREN. THE LD. AO HAS NOTED THAT THE RELEVANT PU RCHASE AGREEMENT DATED 25.06.1992 SHOWED THE SAID FOUR MINOR CHILDREN VIZ.(I) MISS. GEETA GAWLI - 9 YRS. (II) MISS YOGITA GAWLI, 7 YRS. (III) MAST ER MAHESH GAWLI - 4 YRS. AND (IV) MASTER YOGESH GAWLI - 3 YRS. AS PURCHASERS AND BEING MINORS, THE ASSESSEE EXECU TED THE DEED OF PURCHASE ON THEIR BEHALF. THUS ACCORDING TO THE LD. AO, THE ASSESSEE WAS NOT THE OWNER OF THE SAID IMMOVABLE PROPERTY. 3.2. THE LD. AO HAS OBSERVED THAT AS PER THE AGREEMENT FOR SALE OF THE SAID IMMOVABLE PROPERTY DATED 31.10.2011, THE OWN ERS/VENDORS WERE THE FOUR CHILDREN OF THE ASSESSEE VIZ. (I) MISS. GEETA GAWLI - 28 YRS. (II) MISS YOGITA GAWLI, 24 YRS. (III) MAHESH GAWLI - 23 YRS. AND (IV) YOGESH GAWLI - 21 YRS AND THE ASSESSEE WAS THE CONSENTING PARTY. THE LD. AO HAS NOTED THAT OUT OF THE SAFE CONSIDERATION OF RS.6 CRORES, AN AMOUNT OF RS.1.20 CRORES WAS RECEIVED BY THE ASSESSEE AS IF SHE WAS ONE AMONGST THE JOINT OWNERS ENTITLED TO 20% OF THE SALE CONSIDERATION, BUT AS PER THE SALE AGREEMENT, SHE WAS ONLY THE CONSENTING PARTY. ACCORDIN G TO THE LD. AO, IT IS APPARENT FROM ALL THE THREE DOCUMENTS MENTIONED ABOVE THAT THE ASSESSEE WAS NOT HAVING ANY OWNERSHIP RIGHT IN THE IMMOVABLE PROPERTY IN QUESTION AS HER NAME NOWHERE APPEARED AMONGST THE OWNERS. APART FROM OWNERSHIP, SHE HAS NO RIGHTS OF WHATSOEVER NATURE IN THE SAID PROPERTY. 3.3. IN VIEW OF THE ABOVE FACTS, THE LD. AO ASKED THE ASSESSEE TO SHOW - CAUSE AS TO WHY THE AMOUNT OF RS.1,20,00,000/ - RECEIVED ON SALE OF ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 6 PROPERTY AS BEING THE CONSENTING PARTY SHOULD NOT BE TREATED AS INCOME F ROM OTHER SOURCES. THE ASSESSEE FILED A REPLY THROUGH HER AUTHORIZED REPRESENTATIVE AS UNDER: - IN YOUR ABOVE LETTER YOU HAVE STATE THAT THE ASSESSEE IS NOT THE OWNER O F T HE PROPERTY AS SUCH THE PROC EEDS BE T REAT ED AS INCOME FROM OILIER SOURCES. IN THIS CONNECTION WE WOULD LIKE TO INFORM YOU THAT THE ASSESSEE HAS DECLARED THE PROPERTY UNDER VDIS IN 1997 AND HAD OBTAINED THE VD1S CERTIFICATE DATE 27.08.1997 ISSUED BY A CIT CITY V I I, MUMBAI WHEREIN THE SAID LAND WAS DECLARED BY HER IN HER NAME ALONG WITH T HE NAMES OF HER 4 MINOR CHILDREN. FROM THE VDIS CERTIFICATE (ALREADY ON YOUR RECORD) YOU WILL OBSERVE THAT MRS. ASHA G AWLI HAS DECLARED A SUM OF RS. 2,15,183/ - BEING SHE COST OF THE ABOVE PROPERTY PURCHASED IN A. Y 1993 - 94 AND HAS PAID (HE TAXES UNDER VDI S SCHEME. THE CERTIFICATE U /S 68(2) OF THE VDIS SCHEME 1997 WAS ISSUED IN THE NAME OF MRS ASHA GAWLI AS SUCH ALL THE ASSETS DECLARED BY HER IN THE ABOVE CERTIFICATE BELONGS TO HER. WITHOUT PREJUDICE TO THE ABOVE FROM THE SALE AGREEMENT YOU WILL FIND THA T THE ASSESSEE HAS SIGNED AS A CONSENTING PARTY ALONG WITH THE OTHER CO - OWNERS AND AS SUCH EACH CO - OWNERS AND THE ASSESSEE RECEIVED A SUM OF RS. 1,20,00,000/ - BY WAY OF SALE CONSIDERATION FROM THE PURCHASER. FROM THE SALE AGREEMENT YOU WILL FIND THAT THE CO - OWNERS HAVE AGREED TO PART AWAY 20% OF THEIR SHARE TO THE ASSESSEE AND ACCORDINGLY DIRECTED THE PURCHASER TO MAKE THE PAYMENT OF SALE PROCEEDING ACCORDINGLY. IT CAN BE SEEN AS A DEEMED GIFT FROM THE CO - OWNERS TO THE ASSESSEE. THIS IS REFLECTED IN THE SA LE AGREEMENT WHEREIN YOU WILL FIND THAT THE PURCHASER HAS CLEARLY BIFURCATE D THE SALE PROCEED S EQUALLY AMONGST THE ASSESSEE AND THE OTHER CO - OWNERS. FROM THE ABOVE FACTS YOU WILL FIND THAT, EVEN THE ASSESSEE DID NOT HAVE A CLEAR TITLE BUT IT IS FOR SURE T HAT SHE HAD AN ENFORCEABLE RIGHT AND THE INTEREST (PARTLY OR FULLY) IN THE PROPERTY BY VIRTUE OF VDIS MADE BY HER ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 7 DECLARING THE ABOVE PROPERTY IN HER DECLARATION IN 1997 SUPPORTED BY VDIS CERTIFICATE OR BY WAY OF DEEMED GIFT BY THE CO - OWNERS. IT CANNOT BE DISPUTED THAT THE PROPERTY WHICH WAS SOLD FOR RS 6,00,00,000/ - WAS NOT A CAPITAL ASSET AND THEREFORE ANY SUM RECEIVED IN LIEU OF ITS TRANSFER WOULD B E CHARGEABLE ONLY AS CAPITAL GAINS WHETHER IN THE HANDS OF THE ASSESSEE OR ANY OTHER PERSONS AS THE CASE M AY BE. THE NATURE OF RECEIPT WILL NOT ALTER EVEN IF THE ASSESSEE IS NOT HAVING AN ABSOLUTE TITLE. IN THE CASE OF M/S TATA SERVICES LIMITED 122 ITR 594 (BOM) IT HAS BEEN HELD THAT THE WORDS AND PHRASES ' PROPERTY UNDER SECTION 2(14) INCLUDES ANY RIGHTS WHI CH CAN BE CALLED PROPERTY. SIMILARLY IN THE CASE OF M/S STERLING INVESTMENT CORPORATION 123 ITR 44 1 (BOM) A CONTRACTUAL RIGHT OBTAINED UNDER THE CONTRACT OF SALE WILL BE CONSIDERED AS CAPITAL ASSET UNDER SECTION 2 (14). IN THE CASE OF M/S PNB FINANCE LIM ITED 252 ITR 491 (DELHI) IT HAS BEEN HELD THAT THE 'PROPERTY' IS OF WIDEST IMPORT AND IT SIGNIFIES EVERY POSSIBLE INTEREST WHICH A PERSON CAN ACQUIRE, HOLD OR ENJOY. DOES THE RIGHT OF THE ASSESSEE IN THE ABOVE PROPERTY IS A CAPITAL ASSET ITSELF AND SALE OF HER SHARE, RIGHT TITLE , CLAIM AND INTEREST IN THE SAID PROPERTY, WOULD AMOUNT TO TRANSFER WI THIN THE MEANING OF SECTION 2(4 7) WHICH WOULD THEREFORE ATTRACT THE CAPITAL GAIN. FROM THE ABOVE FACTS IT IS CLEAR THAT MRS. ASHA GAWLI IS THE RIGHTFUL OWNER OF THE ABOVE LAND ALONG WITH HER 4 MINOR CHILDREN . WE THEREFORE OBJECT TO OUR SHOW - CAUSE NOTICE FOR TAXING THE AMOUNT OF RS. 1,20,00,000/ - AS INCOME FROM OTHER SOURCES. WE FURTHER REQUEST YOU TO KINDLY CONSIDER THE AMOUNT OF RS. 1,20,00,000/ - AS INCOME FROM CAPITAL GAINS. 3.4. THIS EXPLANATION WAS NOT ACCEPTED BY THE LD. AO. ACCORDING TO THE LD. AO , DURING THE TIME WHEN PURCHASE AGREEMENT DATED 25/06/1992 WAS EXECUTED AND LATER ON THE VDIS DECLARATION WAS MADE IN 1997 , THE ASSESSEE HAD A ROLE ONLY IN THE C APACITY OF NATURAL GUARDIAN SINCE HER FOUR CHILDREN IN WHOSE NAMES, PURCHASE WAS EFFECTED AND VDIS DECLARATION WAS MADE , WERE MINOR S . THE LD. AO CATEGORICALLY OBSERVED THAT NONE OF ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 8 THE PROPERTY DOCUMENTS INCLUDING THE VDIS DECLARATION SHOWED THAT ASSESSEE WAS ONE OF THE JOINT OWNERS OF THE IMMOVABLE PROPERTY. 3.5. WITH REGARD TO THE ALTERNATIVE CLAIM MADE BY THE ASSESSEE ON WITHOUT PREJUDICE BASIS , THAT THE SUM OF RS.1,20,00,000/ - RECEIVED BY THE ASSESSEE FROM HER CHILDREN WOULD ONLY AMOUNT TO GIFT AND ACC ORDINGLY , EXEMPT FROM INCOME TAX IS CONCERNED, THE LD. AO OBSERVED THAT IF THE GIFT WAS FROM THE SALE CONSIDERATION OF RS.6 CRORES AFTER THE CHILDREN SOLD THE PROPERTY, THEN ALSO THE RECEIPT OF RS.1,20,00,000/ - WOULD BE TAXABLE IN THE HANDS OF THE CHILDREN . ACCORDING TO THE LD. AO, IF THE GIFT WAS MADE BEFORE THE SALE OF LAND, THEN THE SALE AGREEMENT WOULD HAVE MENTIONED SO AND THERE SHOULD HAVE BEEN WRITTEN AGREEMENT TO THIS EFFECT AND DECLARATION BY THE CHILDREN TO THAT EFFECT AT THE TIME WHEN THE MONEY W AS RECEIVED OR IMMEDIATELY THEREAFTER AND FURTHER, IT SHOULD BE SO RECEIVED BY THE ASSESSEE. ACCORDING TO THE LD. AO, THE FACTS ON RECORD DID NOT SUGGEST THAT IT WAS A GIFT. 3.6. WITH THE AFORESAID OBSERVATIONS, THE LD. AO CONCLUDED THAT ASSESSEE WAS ONLY A NATURAL GUARDIAN OF THE IMMOVABLE PROPERTY AND NOT JOINT OWNER OF THE PROPERTY THEREON , AND ACCORDINGLY TREATED THE AMOUNT RECEIVED IN THE SUM OF RS.1,20,00,000/ - AS INCOME FROM OTHER SOURCES . SINCE THE RECEIPT OF RS.1,20,00,000/ - WAS TAXED IN THE HEA D OF INCOME FROM OTHER SOURCES, THE LD. AO CONSEQUENTLY DENIED THE BENEFIT OF EXEMPTION CLAIMED U/S.54 / 54F AND 54EC OF THE ACT FOR FURTHER INVESTMENTS. 3.7. DURING THE COURSE OF FIRST APPELLATE PROCEEDINGS, THE ASSESSEE ARGUED THAT IT IS THE ASSESSEE WHO HAS PURCHASED THE PROPERTY AT PISOLI VILLAGE, PUNE IN THE NAME OF HER FOUR MINOR CHILDREN AND ACCORDINGLY , HAD TAKEN ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 9 THE ROLE OF NATURAL GUARDIAN OF THE CHILDREN FOR TOTAL CONSIDERATION OF RS.2,15,183/ - AND MOREOVER IN THE YEAR 1997, THE ASSESSEE ON B EHALF OF FOUR CHILDREN HAD DECLARED THE INVESTMENT MADE IN LAND AT PISOLI VILLAGE, PUNE OF RS.2,15,183/ - UNDER VDIS SCHEME 1997 AND PAID THE FULL TAX THEREON AND HAD OBTAINED CERTIFICATE FROM THE LD. ADMINISTRATIVE COMMISSIONER FOR THE SAME. IT WAS VEHEMEN TLY ARGUED THAT THE AGREEMENT SHOULD BE READ AS PER THE UNDERSTANDING OF THE PARTIES TO THE AGREEMENT I.E. ASSESSEE, ASSESSEES CHILDREN AND THE PURCHASER AND THE DEPARTMENT CANNOT HOLD THAT THE AGREEMENT IS NOT VALID OR THE DEPARTMENT CANNOT RE - WRITE THE SAID AGREEMENT. IT WAS PLEADED THAT RIGHT IN THE AGREEMENT IS A CAPITAL ASSET AND HENCE, THE INCOME AROSE FROM THE SALE OF SUCH CAPITAL ASSET WOULD RESULT ONLY AS CAPITAL GAIN AND NOT INCOME FROM OTHER SOURCES. IT IS A FACT THAT THE PURCHASER HAD PAID 20% OF THE TOTAL CONSIDERATION OF RS.6 CRORES TO EACH OF THE FIVE PARTIES COMPRISING OF ASSESSEE AND HER FOUR CHILDREN IN EQUAL PROPORTION OF RS.1,20,00,000/ - EACH DIRECTLY TO THEIR RESPECTIVE ACCOUNTS. THIS GOES TO PROVE THE CLEAR UNDERSTANDING OF THE MIND OF THE PURCHASER ALSO THAT ASSESSEE EFFECTIVELY IS ONE OF THE JOINT OWNER S IN THE SAID PROPERTY. IT WAS PLEADED THAT IF IN THE MIND OF PURCHASER, ASSESSEE WAS NOT THE JOINT OWNER, THERE WAS ABSOLUTELY NO NEED TO MAKE SEPARATE PAYMENT OF RS.1,20,00,000/ - BEIN G 20% SHARE DIRECTLY TO THE ASSESSEE. 3. 8 . THE LD. CIT(A) OBSERVED THAT ASSESSEE HAD RECEIVED RS.1,20,00,000/ - FROM THE PURCHASER I.E. ORICON REALTY PVT. LTD., ONLY AS CONSENTING PARTY TO THE AGREEMENT AND NOT AS CO - OWNER OF THE PROPERTY. HE HELD THAT ONC E THE AMOUNT OF RS.1,20,00,000/ - IS NOT RECEIVED IN THE CAPACITY OF LAND OWNER OR AGAINST ANY RIGHT OVER THE LAND, BUT ONLY AS CONSENTING PARTY, IT WILL CERTAINLY PARTAKE THE CHARACTER OF INCOME FROM OTHER SOURCES AND TAXED AS SUCH INSTEAD OF INCOME FROM C APITAL GAINS ON ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 10 SALE OF LAND. ACCORDINGLY, HE DIRECTED THE LD. AO TO ASSESS THE ASSESSEE ON SUBSTANTIVE BASIS FOR THE RECEIPT OF RS.1,20,00,000/ - UNDER THE HEAD INCOME FROM OTHER SOURCES. IN VIEW OF THIS DECISION, HE CONSEQUENTLY HELD THAT ASSESSEE IS NO T ENTITLED FOR DEDUCTION U/S.54EC AND 54 / 54F OF THE ACT FOR FURTHER RE - INVESTMENTS MADE. 3. 9 . WITH REGARD TO THE ALTERNATIVE GROUND TAKEN BY THE ASSESSEE THAT THE AMOUNT OF RS.1,20,00,000/ - RECEIVED BY THE ASSESSEE MAY BE TREATED AS A GIFT FROM THE OTHER CO - OWNERS IS CONCERNED, THE LD. CIT(A) UPHELD THE OBSERVATION OF THE LD. AO THAT IF THE GIFT WAS FROM THE SALE CONSIDERATION OF RS.6 CRORES AFTER THE CHILDREN SOLD THE PROPERTY, THEN THE RECEIPT OF RS.1,20,00,000/ - WOULD BE TAXABLE IN THE HANDS OF THE CHI LDREN AND SINCE THE FACT OF GIFT MADE TO THE ASSESSEE WAS NOT EVEN MENTIONED IN THE AGREEMENT AND IN THE ABSENCE OF ANY WRITTEN AGREEMENT TO THIS EFFECT AND GIFT DECLARATION BY THE CHILDREN AT THE TIME WHEN MONEY WAS RECEIVED OR IMMEDIATELY THEREAFTER, THE PLEA OF THE ASSESSEE IS INDIVISIBLE. WITH THE AFORESAID OBSERVATIONS, HE UPHELD THE AC TION OF THE LD. AO. 4. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. FACTS OF APPEAL IN THE CASE OF SHRI MAHESH ARUN GAWLI IN ITA NO. 7323 /MUM/201 8 AND THE PROCEEDINGS B EFORE THE LD. AO AND LD . CITA 5. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE ACTION OF THE LD. AO IN TREATING THE SALE CONSIDERATION AT RS.1,50,00,000/ - ON SALE OF LAND AS AGAINST RS.1,20,00,000/ - REPORTED BY THE ASSESSEE IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 11 5.1. FACTS ARE THAT ASSESSEE AND HIS THREE SIBLINGS NAMELY I)MISS YOGITA GAWLI II) MR YOGESH GAWLI III) MISS GEETA GAWLI SOLD A PROPERTY AT THE PISOLI, PUNE, FOR RS.6 CRORES. AS PER ASSESSEE, THE SALE PROCEEDS OF THIS PROPERTY WERE DIVIDED EQUALL Y IN 5 PARTS OF RS. 1,20,00,000/ - EACH AND SAME WAS SHOWN AS SALES CONSIDERATION IN THE HANDS OF ASSESSEE, HIS 3 SIBLINGS AND HIS MOTHER (TOTAL 5 PARTS). THEREFOR E, AS PER ASSESSEE, THE T OTAL SALE CONSIDERATION OF RS.1.20 CRORE EACH WAS SHOWN IN THE HANDS OF 5 INDIVIDUALS. FOR COMPUTING THE COST OF ACQUISITION OF THE PROPERTY, ASSESSEE HAS AGAI N DIVIDED THE COST INTO 5 PARTS EQUALLY. 5.2. THE LD . AO ON THE OTHER HAND HELD THAT ASSESSEE' S MOTHER HAD NO OWNERSHIP OF THE PROPERTY AND THEREFORE , THE SALES CONSIDERATION OF RS. 6 CRORES WAS TO BE DIVIDED INTO 4 PARTS AND ASSESSED AS SALES CONSIDERATION OF RS.1.50 C RORE EACH FOR THE CAPITAL GAIN PURPOSE IN THE HANDS OF ASSESSEE AND HIS THREE SI BLINGS . THE LD. AO COMPLETED THE ASSESSMENT BY DIVIDING THE TOTAL SALE CONSIDERATION OF RS.6 CRORES INTO FOUR PARTS EQUALLY AND TREATED THE SALE CONSIDERATION PERTAINING TO ASSESSEES SHARE AT RS.1,50,00,000/ - AS AGAINST RS.1,20,00,000/ - REPORTED BY THE ASSESSEE. HOWEVER, WHILE GIVING EFFECT TO THE COST OF ACQUISITION OF THE PROPERTY, T HE LD. AO TOOK THE TOTAL COST AT RS.2,15,183/ - AND INSTEAD OF GIVING 1/4 TH VALUE THEREON TO THE ASSESSEE, HE GAVE 1/5 TH VALUE TO THE ASSESSEE AND GAVE REDUCED COST OF ACQUI SITION TO THE ASSESSEE AFTER GIVING EFFECT OF INDEXATION THEREON. ACCORDINGLY, THE LD. AO BROUGHT TO TAXABLE LONG TERM CAPITAL G AIN OF RS.1,13,48,502/ - IN THE ASSESSMENT. 5. 3 . THE LD. CIT(A) OBSERVED THAT THERE IS NO DISPUTE REGARDING TOTAL CONSIDERATION OF RS.6 CRORES RECEIVED FOR THE PROPERTY. THERE IS ALSO NO DISPUTE REGARDING THE PROPERTY IN QUESTION OR THE DATE OF SALE OF THE PROPERTY. THE LD. CIT(A) OBSERVED THAT EFFECTIVE DISPUTE TO BE RESOLVED ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 12 HEREIN IS AS TO WHETHER THE OWNERSHIP OF THE PROPERTY I N QUESTION CAN BE HELD TO BE IN THE HANDS OF FOUR PERSONS (I.E. ASSESSEE AND THREE SIBLINGS) OR IN THE HANDS OF FIVE PERSONS (I.E. ASSESSEE, HIS THREE SIBLINGS AND THEIR MOTHER). THE LD. CIT(A) ON EXAMINATION OF ALL THE WRITTEN SUBMISSIONS FILED BY THE ASS ESSEE INCLUDING THE SALE DOCUMENT, PURCHASE DOCUMENT, VDIS DECLARATION OF MOTHER OBSERVED THAT THE ASSESSEE AND HIS THREE SIBLINGS ARE ONLY DECLARED AS OWNERS IN THE SALE DEED AND THERE WAS NO MENTION OR INCLUSION OF MOTHER OF THE ASSESSEE AS OWNER IN THE SALE DEED. THE LD. CIT(A) FURTHER OBSERVED THAT MOTHER OF ASSESSEE WAS ONLY MENTIONED AS CONSENTING PARTY IN THE SALE DEED. THE LD. CIT(A) ALSO OBSERVED THAT VDIS DECLARATION MADE BY THE ASSESSEE CLEARLY SHOW THAT THE PROPERTY WAS DECLARED IN VDIS - 97 SCHEM E BY ASSESSEES MOTHER SMT. ASHA ARUN GAWLI IN THE NAMES OF HER FOUR CHILDREN INCLUDING ASSESSEE AS THEY WERE ALL MINORS AT THAT TIME . A CCORDINGLY, HE UPHELD THE ACTION OF THE LD. AO THAT THE TOTAL SALE CONSIDERATION OF RS.6 CRORES NEED TO BE DIVIDED EQUAL LY ONLY AMONG FOUR PERSONS INCLUDING THE ASSESSEE AND ASSESSEES SHARE THEREON WOULD AMOUNT TO RS.1,50,00,000/ - TOWARDS SALE CONSIDERATION ARISING ON SALE OF LAND AT PISOLI VILLAGE, PUNE. HE FURTHER OBSERVED THAT THE PAYMENT OF RS.1,20,00,000/ - TO ASSESSEE S MOTHER WOULD ONLY HAVE TO BE TREATED AS AN APPLICATION OF RECEIPTS BY THE CHILDREN INCLUDING THE ASSESSEE. HE CATEGORICALLY OBSERVED THAT MERELY PART OF THE CONSIDERATION WAS HANDED OVER TO THE ASSESSEES MOTHER EITHER BY CO - OWNERS DIRECTLY OR BY THE PU RCHASER AT THE BEHEST OF THE CO - OWNERS, WHEN THE MOTHER WAS NOT OWNER OF THE PROPERTY AS PER THE SALE DOCUMENT ITSELF, THE SAID RECEIPT WILL NOT GIVE RAISE TO CAPITAL GAINS IN THE HANDS OF THE MOTHER. THE LD. CIT(A) HOWEVER, RECTIFIED THE MISTAKE COMMITTED BY THE LD. AO WITH REGARD TO GIVING DEDUCTION FOR 1/5 TH SHARE OF COST OF ACQUISITION IN THE HANDS OF THE ASSESSEE , TO 1/4 TH SHARE AS THERE WERE ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 13 ONLY FOUR CO - OWNERS INCLUDING THE ASSESSEE IN THE PROPERTY. THE LD. CIT(A) DIRECTED THE LD. AO TO RECOMPUTE TH E CAPITAL GAINS ACCORDINGLY. FACTS OF APPEAL IN THE CASE OF MS. YOGITA ARUN GAWLI IN ITA NO. 7324 /MUM/201 8 AND THE PROCEEDINGS BEFORE THE LD. AO AND LD . CITA 6. THE FACTS NARRATED HEREINABOVE IN THE CASE OF MAHESH ARUN GAWLI AND THE TREATMENT GIVEN BY THE LD. AO AS WELL AS BY THE LD. CIT(A) WOULD HOLD GOOD FOR THIS ASSESSEE I.E. YOGITA ARUN GAWLI ALSO AS BEING ONE OF THE CO - OWNERS IN THE SUBJECT MENTIONED PROPERTY. 7. ALL THE AFORESAID THREE APPEALS ARE TAKEN UP TOGETHER AND DISPOSED OFF BY THIS COMMO N ORDER FOR THE SAKE OF CONVENIENCE AS THE FACTS AND THE ISSUE INVOLVED ARE IDENTICAL. FROM THE AFORESAID NARRATION OF FACTS AND THE EXAMINATION OF THE PURCHASE DOCUMENT, SALE DOCUMENT AND VDIS DECLARATION MADE IN 1997, THE FOLLOWING FACTS ARE VERY CLEAR: - ( A ) THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI HAD PURCHASED THE PROPERTY IN 1992 IN THE NAMES OF FOUR CHILDREN WHO WERE MINORS THEREBY GIVING LEGAL OWNERSHIP OF THE SAID PROPERTY ONLY TO THE FOUR CHILDREN. THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI HAD ACTED ONLY A S A NATURAL GUARDIAN CUM CUSTODIAN FOR THE SAID PROPERTY. HENCE, FOR THE PURPOSE OF ARRIVING AT THE COST OF ACQUISITION IN THE HANDS OF EACH CHILDREN I.E. EACH CO - OWNER OF 1/4 TH SHARE SHOULD BE ATTRIBUTED TO EACH OF THE FOUR CHILDREN. ( B ) THE ASSESSEE I.E. M RS. ASHA ARUN GAWLI HAS MADE A DECLARATION UNDER VDIS SCHEME 1997 WHEREIN IT HAS BEEN ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 14 CATEGORICALLY MENTIONED THAT PROPERTY WAS HELD BY HER IN THE NAMES OF HER FOUR CHILDREN. EVEN IN THE SAID DECLARATION, IT WAS NEVER CLAIMED BY THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI THAT ASSESSEE ( MRS. ASHA ARUN GAWLI ) HAD PURCHASED THIS PROPERTY IN HER NAME AND THAT THE CHILDREN WERE ONLY HER BE NAMIDARS . THIS WAS NEVER THE CLAIM OF THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI . SINCE, THE PURCHASE OF THIS PROPERTY HELD BY THE FA MILY WAS NOT DISCLOSED TO THE INCOME TAX DEPARTMENT, THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI CAME FORWARD TO WASH OFF THE SIN BY DISCLOSING THE SAID PROPERTY UNDER VDIS - 97 WHICH WAS ACCEPTED BY THE THEN ADMINISTRATIVE COMMISSIONER OF INCOME TAX DEPARTMENT. THIS ALONE DOES NOT CONFER ANY OWNERSHIP RIGHT IN THE SUBJECT MENTIONED PROPERTY IN THE HANDS OF THE ASSESSEE I.E MRS ASHA ARUN GAWLI. EVEN AFTER THIS, THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI CONTINUES TO BE ONLY A NATURAL GUARDIAN AND CUSTODIAN OF THE SAID PROPERTY ON BEHALF OF THE FOUR MINOR CHILDREN . ( C ) THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI HAD SIGNED THE SALE DEED ON 31/10/2011 ONLY AS CONSENTING PARTY AND NOT AS CO - OWNER OF THE PROPERTY. THIS IS BASICALLY DONE , IN OUR CONSIDERED OPINION , ONLY TO PROTE CT THE INTEREST OF THE PURCHASER I.E. ORICON REALTY PVT. LTD., IN ORDER TO AVOID FUTURE DISPUTE ON THE ASPECT OF TITLE OF THE PROPERTY. AN ACT WHICH IS DONE FOR THE PURPOSE OF AVOIDING ANY FUTURE DISPUTE OR FOR THE PURPOSE OF ADMINISTRATIVE CONVENIENCE , WO ULD NOT CONFER ANY OWNERSHIP RIGHT IN THE HANDS OF THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI . HENCE, THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI CAN NEVER BE HELD AS A BENEFICIAL OR LEGAL OWNER OF THE LAND SITUATED AT PISOLI VILLAGE, PUNE. ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 15 8. IN VIEW OF THE AFORE SAID OBSERVATIONS, WE HOLD THAT TOTAL SALE CONSIDERATION OF RS.6 CRORES SHOULD BE DIVIDED EQUALLY ONLY AMONG THE FOUR CHILDREN AT RS.1,50,00,000/ - EACH OF THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI . CORRESPONDINGLY, THE COST OF ACQUISITION BENEFIT TOGETHER WIT H INDEXATION THEREON , SHOULD ALSO BE GIVEN ONLY FOR 1/4 TH SHARE TO EACH OF THE CO - OWNER (I.E 4 CHILDREN) EXCLUDING THE ASSESSEE. 8.1. WITH REGARD TO THE DECISION RELIED UPON BY THE LD. AR ON THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AMOL C SHAH (HUF) VS. ITO IN INCOME TAX APPEAL NO.1219/2017 DATED 27/01/2020, WE FIND THAT THE ASSESSEE IN THAT CASE WAS HOLDING TENANCY RIGHT AND WAS PAID COMPENSATION. THE HOLDING OF SUCH TENANCY RIGHT WAS A CAPITAL ASSET AND ACCORDINGLY, THE COMPENSATION RECEIVED BY ASSESSEE WAS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT TO BE ASSESSABLE ONLY UNDER THE HEAD INCOME FROM CAPITAL GAINS AND NOT INCOME FROM OTHER SOURCES. THIS DECISION IS FACTUALLY DISTINGUISHABLE WITH THAT OF THE ASSESSEE I.E MRS ASHA ARUN GAWLI AS IN THE INSTANT CASE BEFORE US AS STATED SUPRA, THE ASSESSEE I.E MRS ASHA ARUN GAWLI DOES NOT HOLD ANY RIGHT ON THE SUBJECT MENTIONED PROPERTY IN ANY MANNER WHATSOEVER EXCEPT ACTING AS A CUSTODIAN AND NATURAL GUARDIAN OF HER MINOR CHILDREN. HENCE, THE S AID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WHICH WAS HEAVILY RELIED BY THE LD. AR AT THE TIME OF HEARING WOULD NOT ADVANCE THE CASE OF THE ASSESSEE. 8.2. IT IS NOT IN DISPUTE THAT ASSESSEE HAD RECEIVED RS.1,20,00,000/ - DIRECTLY FROM THE PURCHAS ER I.E. ORICON REALTY PVT. LTD., IN VIEW OF THE FACT THAT SHE HAS SIGNED THE SALE DEED AS CONSENTING PARTY. IN THIS REGARD, THE ALTERNATIVE ARGUMENT ADVANCED BY THE LD. AR BEFORE US HOLDS GOOD THAT THE SAID SUM COULD AT BEST BE TREATED ONLY AS GIFT GIVEN B Y FOUR CHILDREN TO ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 16 THEIR MOTHER. WE ARE IN COMPLETE AGREEMENT WITH THIS. THE RECEIPT OF MONEY OF RS 1.20 CRORES IS A MOVABLE ASSET FOR WHICH NO REGISTRATION IS WARRANTED. EVEN ORAL GIFT IS PERMISSIBLE AND IT NEED NOT BE DEDUCED INTO WRITING ESPECIALLY WHE N IT IS DONE AMONG ST CLOSE FAMILY MEMBERS AS THERE ARE LEAST CHANCES TO SUSPECT THE SAME . THIS OBSERVATION MADE BY US GETS FURTHER STRENGTHENED IN VIEW OF THE UNDISPUTED FACT THAT THE TOTAL SALE CONSIDERATION PAID BY ORICON REALTY PVT. LTD., FOR THIS SUBJE CT MENTIONED PROPERTY AT PISOLI VILLAGE, PUNE WAS RS.6 CRORES ONLY. IN FACT THE LD. CIT(A) ALSO IN HIS APPELLATE ORDER CATEGORICALLY STATES THAT THE TOTAL SALE CONSIDERATION OF THE PROPERTY IS ONLY RS.6 CRORES AND THERE IS ABSOLUTELY NO DISPUTE OVER THE SA ME. WE HAVE ALREADY DIRECTED HEREINABOVE THAT THE TOTAL SALE CONSIDERATION OF THE PROPERTY OF RS.6 CRORES SHOULD BE DIVIDED EQUALLY AMONG THE FOUR CHILDREN OF THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI. IT IS NOT THE CASE OF THE REVENUE THAT RS.1,20,00,000/ - P AID BY ORI C ON REALTY PVT. LTD., TO THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI WAS OVER AND ABOVE THE TOTAL SALE CONSIDERATION OF RS.6 CRORES. HENCE, IT COULD BE SAFELY CONCLUDED THAT THE AMOUNT RECEIVED IN THE SUM OF RS.1,20,00,000/ - BY THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI WOULD HAVE TO BE TREATED AS GIFT RECEIVED BY THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI FROM HER FOUR CHILDREN IN THE INTEREST OF SUBSTANTIAL JUSTICE AND FAIR PLAY. WHILE MAKING THIS DECISION, WE ARE CONSCIOUS OF THE FACT THAT ASSESSEE HAD REPO RTED CAPITAL GAINS TREATING HERSELF AS ONE OF CO - OWNERS IN THE SUBJECT MENTIONED PROPERTY AND HAD REPORTED CAPITAL GAINS THEREON. SINCE, WE HAVE HELD THAT THE SAID RECEIPT OF RS.1,20,00,000/ - IS NEITHER SALE CONSIDERATION ON SALE OF PROPERTY NOR IT COULD B E TAXED AS INCOME FROM OTHER SOURCES IN HER HANDS AND IT IS ONLY A GIFT RECEIVED FROM 4 CHILDREN WHICH IS EXEMPT U/S.56(2) OF THE ACT, THE SAME WOULD ULTIMATELY RESULT IN A SITUATION WHERE THE ASSESSED INCOME BECOMES LOWER THAN THE RETURNED INCOME. WE ARE CONSCIOUS OF THIS FACT BUT AT THE SAME TIME, THE REVENUE ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 17 COULD NOT BE UNJUSTLY ENRICHED WITH UNJUST TAX AND THE DEPARTMENT SHALL BE ENTITLED TO COLLECT JUST AND RIGHT TAX IN ACCORDANCE WITH LAW FROM THE RIGHT PERSON. IT IS TRITE LAW THAT THERE IS NO ESTO P P EL AGAINST THE STATUTE. FOR THE ASPECT THAT ASSESSED INCOME GOING BELOW THE RETURN ED INCOME IS CONCERNED, WE FIND THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT GAS COMPANY LTD., VS. JCIT REPORTED IN 245 ITR 84 AND ALSO YET ANOTHER DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF MILTON LAMINATES LTD., VS. CIT REPORTED IN 37 TAXMANN.COM 249 HAD CATEGORICALLY HELD THAT ASSESSED INCOME COULD GO BELOW THE RETURN ED INCOME IF THERE WAS OBVIOUS MISTAKES COMMITTED BY EITHER OF THE PARTIES I.E., AS SESSEE OR BY THE REVENUE. THE UNDERL YING PRINCIPLE OF THESE TWO JUDGMENTS ARE THAT NO TAX COULD BE COLLECTED FROM AN ASSESSEE BY THE DEPARTMENT EXCEPT BY AN AUTHORITY OF LAW IN CONSONANCE WITH ARTICLE 265 OF THE CONSTITUTION OF INDIA AND NO TAX SHALL BE CO LLECTED FROM THE ASSESSEE WHICH IS NOT DUE TO BE COLLECTED. YET ANOTHER PRINCIPLE WHICH WAS LAID IN THESE JUDGMENTS WAS THAT NO TAX SHALL BE COLLECTED FROM THE ASSESSEE MERELY BECAUSE IT WAS ADMITTED BY HIM OR CONSENTED BY HIM. IN OTHER WORDS, ANY TAX COLL ECTED SHOULD BE IN ACCORDANCE WITH LAW. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE I.E. MRS. ASHA ARUN GAWLI ARE PARTLY ALLOWED SUBJECT TO THE DIRECTIONS GIVEN HEREINABOVE. 8. 3 . IN VIEW OF OUR DECISION RENDERED HEREINABOVE IN THE CASE OF MRS. ASHA A RUN GAWLI , THE TOTAL SALE CONSIDERATION OF RS.6 CRORES SHOULD BE DIVIDED EQUALLY AMONG FOUR CHILDREN @ RS.1,50,00,000/ - EACH AND COST OF ACQUISITION OF THE PROPERTY ALSO SHOULD BE DISTRIBUTED EQUALLY AMONG FOUR CHILDREN AND INDEXATION BENEFIT TO BE GIVEN T O THEM. THE RESULTANT LONG TERM CAPITAL GAINS ARISING IN THE HANDS OF EACH CHILDREN SHALL HAVE TO BE RECOMPUTED ACCORDINGLY AFTER GIVING THE BENEFIT OF EXEMPTION U/S.54 / 54F / 54EC OF THE ACT DEPENDING UPON THE PROOF SUBMITTED THEREIN BY EACH OF ITA NO . 7323/MUM/2018 AND OTHER APPEALS SHRI MAHESH ARUN GAWLI 18 THE CHILD REN . THE LD. AO IS DIRECTED ACCORDINGLY. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE IN THE CASE OF MAHESH ARUN GAWLI AND YOGITA ARUN GAWLI ARE PARTLY ALLOWED. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED ON 11 / 12 /2020 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( JUSTICE P P BHATT ) SD/ - (M.BALAGANESH) PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 11 / 12 / 2020 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//