SMT.MAMATA PRAKASH PRABHU ,BANGALORE vs. INCOME TAX OFFICER WARD-5(3)(5), BANGALORE

O R D E R

Per Shri A.K. Garodia, Accountant Member

by the assessee are as under. “1. The learned CIT(A) erred in passing the order in the manner he did.

2. The learned CIT(A) ought to have appreciated that the submission of the Appellant towards the capital gain has been declared in the hands of her husband and ought not to have disallowed in the hands of the Appellant.

3. The learned CIT(A) ought have appreciated that the ROI and assessment order of her husband it shows that the capital gain has been declared and no addition in the hands of Appellant is required and ought to have deleted the same in toto.

4. Without prejudice, the addition/disallowance as confirmed by the learned CIT(A) is arbitrary, excessive and ought to be deleted in toto. 5. learned CIT(A) erred in confirming the interest u/s.234 of the Act.

6. For these and such other grounds that may be urged at the time of hearing, the Appellant prays that the appeal may be allowed.” 3. Brief facts are that it is noted by the AO in para 4.1 of the assessment order that information was received that the assessee has sold one immovable property for a consideration of Rs. 33.50 Lakhs on 31.10.2011. The assessee was asked to furnish various documents such as copy of purchase agreement in respect of the sold property, copy of sale agreement for the same property and detailed computation of capital gains on sale of the immovable property and necessary supporting documentary evidences in support of claim of exemption / deduction from the capital gains. In reply, it was submitted by the assessee before the AO that no income has accrued to the assessee as she was the co-owner of the property. The AO decided the issue against the assessee on this basis that the assessee has not submitted any documentary evidence in support of her claim that no capital gain has arisen or accrued in the hands of the assessee on sale of the immovable property. The AO also noted that the assessee neither furnished the name, PAN and address of the other co-owners of the sold property nor furnished the detailed computation of capital gains. The cost of acquisition is also not provided by the assessee along with the copy of purchase agreement of the sold property. The AO held that in want of any documentary evidences, in respect of cost of acquisition of the sold property, the same is considered as NIL. The date of acquisition of the property along with documentary evidences was also not made available and therefore, he considered it as short term capital gains which has arisen on sale of the immovable property and the AO has computed the entire amount as short term capital gain of Rs. 33.50 Lakhs. Being aggrieved the assessee carried the matter in appeal before the CIT(A) but without success and now the assessee is in further appeal before me.

without going into this aspect as to whether the gain is taxable in the hands of the present assessee or in the hands of her husband. The ld. AR of assessee submitted copy of the assessment order dated 25.03.2015 passed by the AO in the case of assessee’s husband Shri Prakash Prabhu and drawn my attention to para no. 4 of that assessment order and pointed out that it is noted in the said para that the property in question being Flat No. 703, 7th Floor, Dombvilli, Kalyan District, Thane was sold on 14.10.2011 for a sale consideration of Rs. 33.50 Lakhs. She submitted that in both assessment orders i.e. the assessment order in the present case and in the case of the husband of the present assessee, there is sale of the same property on the same date for the same amount of Rs. 33.50 Lakhs and this is noted by CIT (A) also in para 5 of the impugned order that of the property in question, the assessee was the co- owner along with her husband which was sold for consideration of Rs. 33.50 Lakhs. She further submitted that the capital gain on sale of this property was computed at Rs. 21,33,830/- as per page 7 of the said assessment order passed in the hands of the husband of the present assessee after allowing indexed cost of acquisition of Rs. 12,16,170/- and thereafter, after allowing deduction of Rs. 14,54,415/- u/s. 54 of IT Act, net long term capital gains was computed at Rs. 6,79,415/- and it was brought to tax in the hands of the husband of the assessee and therefore, the addition made in the hands of the present assessee for the sale of the same property is not justified and the same should be deleted. The ld. DR of revenue submitted that necessary evidence was not made available before the AO/CIT(A) and therefore, the assessee does not deserve any relief.

considered opinion, the gain on sale of such property is taxable on the hands of the husband being beneficial owner and no part of such gain is taxable in the hands of the wife i.e. the present assessee for this reason alone that she is joint owner as per purchase agreement unless it is shown and established that she is the beneficial owner also. In the present case, the AO in the case of husband of the assessee Shri Prakash Prabhu, has assessed the entire gain arising on sale of this impugned property by way of considering the entire sale consideration of Rs. 33.50 Lakhs and hence, no portion of such gain can be taxed in the hands of any other person even in the hands of the present assessee although she is the joint owner as per the purchases and sale deed because this is not established by the revenue that the present assessee is the beneficial joint owner. Hence, I hold that the addition made by the AO in the present case is double addition which cannot be sustained and hence, I delete the same.

Order pronounced in the open court on the date mentioned on the caption page.