SHRI BABUBHAI SHANTILAL SOLANKI,,AHMEDABAD vs. THE INCOME TAX OFFICER, WARD-7(1)(1),, AHMEDABAD

per stamp valuation authority is of Rs. 7,13,67,350/-. Thus the difference of Rs. 52,73,470/- being 1/5th share of the assessee is added as the assessee’s income. The assessee challenged this assessment order before the Ld. CIT(A), which the Ld. CIT(A) has confirmed the addition made by the Assessing Officer which is subject matter of appeal before us.

2.2. The Grounds of Appeal raised by the Assessee reads as under: 1. The Id. Commissioner of Income Tax (Appeals) has grossly erred in law and on facts of the case in confirming the action of the Id. AO in making an addition of Rs.52,73,470/- u/s 50C of the Act. 2. Both the Id. Authorities have failed to appreciate that on the facts and circumstances of the case the Jantri Rate of the impugned property ought to have been taken as the Jantri Rate as applicable on the date of Agreement to Sale and that too also as applicable to Agriculture Land. Under the circumstances of the case, no addition could have been made. 3. Both the Id. Authorities have erred in law and on facts in not properly appreciating and considering various submissions, evidences and supporting placed on record during the course of the assessment proceedings and not properly appreciating various facts and laws in its proper perspective. 4. The learned CIT(A) has erred in law and on facts of the case in confirming action of the Id. AO in levying interest u/s. 234A/B/C/D of the Act

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accepted and the above reassessment order have been passed. In fact, the above reassessment were reopened for escapement of income to Rs. 52,73,470/- by invoking the provisions of Section 50C of the Act. However, the Assessing Officer satisfied with the explanation of the assessees and completed the assessment on the returned income of Rs. 1,10,090/-. Thus no additions have been made as against the returned income.

3.1. In assessee’s case, the assessment order was revised u/s. 263 to invoke the provisions of Section 50C of the Act and to bring to tax, the differential amount of Rs. 52,73,470/- as per Section 50C of the Act. The Ld. Counsel further submitted that as per second proviso to Section 50C of the Act, the sale consideration of Rs. 4,50,00,000/- as admitted by the assessee in the agreement sale dated 03.12.2010 should be adopted for the purposes of capital gain and not the Jantri value of Rs. 7,13,67,350/- at the time of execution of the sale deed on 30.05.2011.

3.2. In support of the same, the assessee relied upon by the Co- ordinate Bench judgment in the case of Dharamshibhai Sonani Vs. ACIT, (2016) 75 taxmann.com 141 (Ahd) held as follows: “9. So far as the amendment to Section 50C being retrospective in effect is concerned, there is no doubt about the legal position. I hold the provisos to Section 50C being effective from 1st April 2003. This is precisely what the learned counsel has prayed for. In his detailed written submissions, he has made out of a strong case for the amendment to Section 50C being treated as retrospective and with effect from 1st April 2003. The plea of the assessee is indeed well taken and deserves acceptance. What follows is this. The matter will now go back to the Assessing Officer. In case he finds that a registered agreement to sell, as claimed by the assessee, was actually executed on 29.6.2005 and the partial sale

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consideration was received through banking channels, the Assessing Officer, so far as computation of capital gains is concerned, will adopt stamp duty valuation, as on 29.6.2005, of the property sold as it existed at that point of time. In case the assessee is not content with this value being adopted under section 50C, he will be at liberty to seek the matter being referred to the DVO for valuation, again as on 29.6.2005, of the said property. As a corollary thereto, the subsequent developments in respect of the property sold (e.g. the conversion of use of land) are to be ignored. It is on this basis that the capital gains will be recomputed. With these directions, the matter stands restored to the file of the Assessing Officer for adjudication de novo, after giving an opportunity of hearing to the assessee and by way of a speaking order. I order so.”

3.3. Ld. Counsel further submitted as can be seen from the other two co-owners namely Smt. Hiraben Shantilal and Smt. Indiraben Shantilal cases. Therefore, the assessing officer has not invoked Section 50C of the Act and accepted the returned income filed by the assessee. The above reassessment has attained finality and not a subject matter of Revision by the ld. PCIT. Thus, the Ld. PCIT before verification of other co-owners cases as initiated the u/s. 263 proceedings in the present assessee’s case which is against the principle of equity of law as enshrined in the Article 14 of the Constitution of India.

3.4. In support of the same, the assessee relied upon the Hon’ble Madras High Court judgment in the case of CIT vs. Kumarani Smt. Meenakshi Achi reported in 158 Taxmann.com 4 (MDS); Sangram J Patel vs. DCIT in ITA No. 377/Ahd/2018 order dated 25.10.2021 and also relied by the Co-ordinate Bench in the case of Rajeshkumar Shantilal Patel vs. ITO reported in 127 taxmann.com 342 ITAT Surat Bench.

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section 263 of the Income-tax Act qua the co-owner, who had also adopted the same value for the property as the petitioner herein. 5. It is trite that if during the same assessment year the same quantity of wealth in possession of one co-sharer is subjected to a lower rate of taxation, it would be highly improper to burden a similarly situated co-sharer with a higher rate of tax. If such an action on the part of the assessing authorities sanctioned, it would militate against the principle of equality of law as enshrined in article 14 of the Constitution, vide Jaswant Rai v. CWT [1977] 107 ITR 477 (Punj. & Har.). 5.1. Similarly, Co-ordinate Bench of this Tribunal in the case of Shri Sangram J. Patel Vs. DCIT (supra) has held as follows: “12.4 It is not also out of place to mention that the assessee was the co-owner in the property along with his brother. The claim of the assessee's brother by the same AO was accepted and the deduction/exemption was allowed for the investment made by the co-owner with M/s Sharnam builders for the purchase of the property. In such a situation, we are of the view that the AO was to maintain the consistency. In simple words, the AO cannot reject the claim of the assessee whereas in the case of the brother of the assessee in the identical facts and circumstances, the same was accepted. Accordingly on this count, we are not convinced with the finding of the authorities below. Hence, we set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is partly allowed for the statistical purposes.”

5.2. Another Co-ordinate Bench of the Tribunal in the case of Rajeshkumar Shantilal Patel (supra) held as follows:

“14. Considering the aforesaid factual and legal discussion, we accept the contention of ld. AR for the assessee that once, the similar STCG offered by the co-owner has been accepted by the revenue, and the assessee is also entitled for similar relief. We find convincing force in the submissions learned AR for the assessee. Hence, the appeal of the assessee is allowed. So far as the objection of learned DR for the Revenue is that the case of co-owner of Shri Dipakbhai Dalpatbhai Rana, no scrutiny assessment was initiated, is concern, we find that this fact was brought by assessee at the earliest possible action. The Revenue has not taken any action for reopening the case of co-owner and thereby accepted the similar STCG on same transaction, therefore, in our view, the assessee cannot

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be treated indifferently for similar transaction. Thus, the objection raised by the learned DR for the revenue is not acceptable to us.”

6.1. On this ground, the assessment order passed u/s. 143(3) r.w.s. 263 is hereby quashed.

Order pronounced in the open court on 03-08-2022

Sd/- Sd/- (WASEEM AHMED) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 03/08/2022 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue