SHANTHI VIOLET RODRIGUES,BENGALURU vs. INCOME TAX OFFICER, WARD-4(2)(1), BANGALORE

This is an appeal filed by Shanthi Violet Rodrigues against the order of the Learned Commissioner of Income Tax (Appeals) (NFAC) (in short “Ld. CIT(A)”) passed U/s. 250 of the Income Tax Act, 1961 (in short “the Act”) for Asst Year 2020-21 on 05/06/2025 emanating from Assessment Order dated 24/02/2025 passed U/s. 147 r.w.s 144B of the Act. Submissions of the Ld. AR: 2. The Ld. AR invited our attention to the assessment order dated 24/02/2025 for Asst. Year 2020-21. The Ld. AR submitted Shanthi Violet Rodrigues vs. ITO that in para 4.2 of the assessment order, the Ld. AO has reproduced the assessee’s submission dated 26/08/2024. In this case, the assessee along with her husband had sold a house property viz., Flat No.D-2, located at SR Layout, Murugeshpalya, Bangalore. The Ld. AR submitted that the entire capital gains has been shown by the assessee’s husband in his return of income which is mentioned in para 4.2 of the assessment order. The Ld. AR submitted that the assessee is merely a joint owner but the entire investment was made by the assessee’s husband. Therefore, capital gain was offered for taxation by the assessee’s husband. The Ld. AR took us through the return of income of Mr. Nithan Francis S Rodrigues. The Ld. AR took us through page 9 of the return of the said return of income wherein the details of sale of Flat D-2 are mentioned and total amount mentioned is Rs. 54 lakhs. The Ld. AR submitted that therefore the same income cannot be taxed twice. The Ld. AR submitted that though all these details were submitted before the Ld. Ld. AO, the Ld. AO taxed 50% of Rs. 54 lakhs. The Ld. AR submitted that hence the addition may be deleted.

The Ld. AR further submitted that the Ld. CIT(A) has dismissed the appeal of the assessee on account of delay of 21 days in filing the appeal without understanding the reason provided by the assessee. Submission of the Ld. DR: 4.

It is noted that the assessee had submitted a reply on 26/08/2024 to the Ld. AO which is reproduced by the Ld. AO in the assessment order. On perusal of the said reply, it is observed that the assessee informed the Ld. AO that her husband has offered entire sale consideration of Rs. 54 lakhs in his return of income. The assessee had provided acknowledgement number of the return of income filed by her husband. We have perused the return of income filed by Mr. Nithan Francis S Rodrigues and PAN: AGAPR3693L for AY 2020-21. At page Nos. 8 and 9 of the return of income, the assessee has shown the sale of impugned property for the consideration of Rs. 54 lakhs. The relevant para of the return of income is scanned and reproduced as under:

Thus, we have observed that the assessee’s husband has shown sale of Flat D-2 in his return of income and offered capital gains for taxation. The Ld. AO has not bothered to verify these facts even though acknowledgement number of the return of income filed by the assessee’s husband and his PAN were provided to the Ld. Ld. AO. Had the Ld. AO studied the return of income of assessee’s husband, he would have easily understood the entire sale consideration has been shown by the assessee’s husband. No income can be taxed twice: 8. ITAT, Mumbai Bench in in the case of Dinesh Kiran Aggarwal vs. DCIT (Central) on identical facts has held that same income cannot be taxed in the hands of both husband as well as wife. The ITAT, Mumbai in the said case has relied on the decision of the Hon’ble Supreme Court in the case of Laxmipath Singhania vs. CIT (72 ITR 291, 294) (SC).

In these facts and circumstances of the case, we are convinced that the assessee’s husband had shown the entire sale consideration in his return of income and hence, by adding the same income in the assessee’s hands will be double taxation.

Even otherwise, on perusal of the return of income of the assessee’s husband and assessee’s submissions dated 26/08/2024, it is observed that the impugned Flat D-2 was purchased in October, 2007 for Rs. 36,80,000/-. The said Flat has been sold in July 2019 for Rs. 54 lakhs. Therefore after considering the index cost of acquisition, there will be a loss on account of sale of flat. Therefore, even otherwise, the addition made by the Ld. AO is not maintainable. The Ld. AO has merely stated that the assessee has not filed details of purchase of property. However, a careful reading of sale deed, dated July, 2019 would have shown the Ld. AO the date of purchase of the impugned property. However, in the assessment order the Ld. AO has taxed this income under the head ‘short term capital gains’. This is incorrect and bad in law as the property was purchased in 2007 and hence the asset qualifies for long term capital gains. Accordingly even for this reason the addition made by the Ld. AO is bad in law. Accordingly, the Ld. AO is directed to delete the addition of Rs. 27 lakhs.