BINDU SUNILKUMAR KALAPPAT,MUMBAI vs. INCOME TAX OFFICER, WARD 9(1)(1), MUMBAI

The Ld. AR submitted that the husband of the assessee, Shri Sunil Kumar Nana Kalappat, had declared the entire sale consideration of Rs.60,00,000/- in his return of income for A.Y. 2015-16 under the head “Long Term Capital Gains.” Copies of the ITR and computation of income of the assessee’s husband are placed at APB pages 4 to 6. Upon perusal of the record, it is observed that after claiming indexation of cost of acquisition amounting to Rs.21,33,333/- and deduction under section 54 of Rs.35,00,000/-, the net taxable long-term capital gain declared in his hands was Rs.3,66,667/-. It was thus contended that the same income cannot be subjected to double taxation in the hands of the assessee. The Bindu Sunil Kumar Kalappat Ld. AR accordingly prayed that the matter be remanded to the file of the Ld. CIT(A) with a direction to afford the assessee a fair opportunity of being heard on merits.

The Ld. DR, on the other hand, supported the orders of the revenue authorities. But, during the course of hearing, the Ld. DR had not controverted the factual submissions advanced by the Ld. AR 5. We have heard the rival submissions and examined the material available on record. It is noted that the Ld. AO had made an addition of Rs.29,00,000/- under the head “Capital Gains” in respect of the sale of the property. The assessee has contended that the entire sale consideration of Rs.60,00,000/- was already declared in the hands of her husband, who offered long-term capital gains of Rs.3,66,667/- after duly claiming indexation and deduction under section 54 of the Act. It is further evident from the record that TDS of Rs.60,000/- on sale of the property was deducted in the hands of the assessee’s husband which is reflected in Form-26AS. Copies of the ITR, computation of income, and Form 26AS of the assessee’s husband are placed at APB pages 4 to 10. Upon consideration of the material placed before us, we find substantial merit in the contention raised by the assessee. It is further observed that the Ld. CIT(A) dismissed the appeal primarily on the ground of limitation, noting a delay of 325 days in filing the appeal before the first appellate authority. Although the assessee had filed a petition for condonation of delay along with Form No. 35, the Ld. CIT(A) rejected the condonation petition and disposed of the appeal without adjudicating the issues on merits. In the interest of justice, and considering that the income arising from the sale of property appears to have been duly declared in the return of