Loading judgment…
Facts
The assessee and her husband jointly sold a property, and the Assessing Officer (AO) assessed 50% of the capital gains in the assessee's hands, reopening the assessment under Section 147. The assessee contended that her actual investment in the property was only 19.50% of the total, not 50%, and that her husband had already declared the remaining share. She provided bank statements and purchase agreements as evidence of unequal contributions.
Held
The Tribunal acknowledged that the AO had determined liability based on joint ownership. However, considering the assessee's submission of evidence (bank statements, purchase/sale agreements) detailing the actual investment ratios (19.50% for assessee and 80.50% for her husband), the Tribunal decided to remit the matter back to the AO for re-verification and re-assessment based on these actual investment proportions, providing the assessee a proper opportunity of being heard.
Key Issues
Whether capital gains from jointly owned property should be apportioned based on equal ownership or on the actual investment ratios proven by the assessee, necessitating a re-assessment by the AO.
Sections Cited
147
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’: NEW DELHI
ORDER PER S.RIFAUR RAHMAN, AM: 1. This appeal has been filed by the Assessee against the order of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC) Delhi [“Ld. CIT(A)”, for short], dated 16/05/2024 for Assessment Year 2012-13.
The assessee has raised the following grounds of appeal:-
“1. BECAUSE the Appellant and her husband, Sh S M Kandwal, were the Joint Owners of the Property Flat No. 605, Indira puram, Ghaziabad, Residential in Nature and had Invested their own shares in the proportion of their ownership, which is 19.50% of the Appellant and 80.50% of Sh S M Kandwal and the Ld AO had erred in taking the correct value of the cost of acquisition in the case of the Appellant and also the correct value of the capital gains in the hands of the Appellant.
2. BACAUSE the CIT(A) had erred in confirming the order of the AO without considering the proportional cost of Acquisition and the proportional capital gains.
3. BECAUSE the cost of Acquisition of the Appellant and her Husband, Sh S M Kandwal was made as follows :-
A. Cost of Flat -Rs. 4,00,000.00 Mrs. Chhaya Kandwal, (Appellant) 19.50% Mr S M Knadwal, Husband of the Appellant -Rs. 16,50, 000.00/- 80.50%
B. Cost of Stamp & Registration Mrs. Chhaya Kandwal, (Appellant) - Rs. 56,355.00 Mr S M Knadwal, Husband of the Appellant -Rs. 2,32,645.00
C. Total Cost of Acquisition of Property Flat No. 605, Indira puram, Ghaziabad (A+B) Mrs. Chhaya Kandwal, (Appellant) -Rs. 4, 56,355.00
Mr S M Knadwal, Husband of the Appellant -Rs.18,82,645.00
TOTAL -Rs. 23,39,000.00
BECAUSE the Ld. AO had erred in allowing the 50% of the cost of acquisition of Rs.2060020.00 ie. Rs. 1030010.00 in place of the 19.50% of the actual cost of acquisition of Rs. 23,39,000.00, ie Rs. 456355.00 in the hands of the Appellant.
5. BECAUSE the Ld. AO had erred in taxing the capital gains in wrong proportion of 50% in place of 19.50% of the capital gains, in proportion of the ownership in the ratio of the Investment made by the Appellant.
6. The Appellant craves leave to add, withdraw or amend any of the ground of appeal during the continuation of appeal.”
The brief facts of the case are, the Assessing Officer based on the information received from Sub-Registrar, Ghaziabad, as per the information assessee along with her husband sold a Flat No.605, Indirapuram, Ghaziabad on 13/06/2011 for sale consideration of Rs.37,00,000/-, however, the stamp value was determined at 56,25,000/-. The Assessing Officer observed that flat was in joint name with her husband, therefore, the 50% share of the property has to be charged to tax in the hands of assessee.
The Assessing Officer determined the net capital gain from sale of the above said property at Rs.13,45,063/- in the hands of the assessee. The Assessing Officer issued notice to the assessee why the above said amount should not be charged tax in the hands of the assessee by reopening the assessee u/s 147 of the Income Tax Act, 1961 (‘the Act’ for short) and issued one notice with the proper approval. In response, assessee submitted that assessee is a co-owner and0 did not contribute in the purchase of above said property and all the sale proceeds were received by her husband Sh. S.M. Kandwal, who has already declared the same in his ROI and served with the a similar notice by the ITO, Noida, he is complying with the same. After considering the above submissions of the assessee, the Assessing Officer rejected the same and proceeded to make the addition of long term gain the hands of the assessee.
4. Aggrieved with the above order, the assessee preferred appeal before the Ld. CIT(A). After considering the statements of the assessee, the Ld. CIT(A) sustained the additions made by the Assessing Officer.
Aggrieved with the above order, the assessee is in appeal before us.
At the time of hearing, the Ld. AR of the assessee submitted that assessee along with her husband purchased the above said property in the joint name and contributed the respective share of investment in the above said property on the basis of investment in cost of flat jointly by her and her husband. He submitted that assessee had invested 4 lacs in the above said property and assessee’s husband had invested Rs.16.50 lacs. Therefore, the proper percentage of addition should have been at 19.50% instead of 50%. In support of the same, he also submitted bank statement of assessee as well as her husband in the Paper Book. He prayed that the above prayer may be accepted and in order to verify the same it may be remitted back to the file of the AO.
On the other hand, the Ld. DR relied on the orders of the lower authorities.
Considered the rival submissions and material placed on record, we observed that the Assessing Officer has determined the long term capital gain and he proceeded to make the addition with the observation that the property sold was joint property and determined the liability on the basis of joint owner. However, before us, the assessee has brought on record the details of costs of investment in the flat by both the joint owner and prayed that the long term capital gain may be apportioned on the basis of 19.50% and 80.50% in the hands of the assessee and her husband respectively. Since, the assessee has submitted all the relevant bank statement, purchase and sale agreement. In our considered view, the above contention of the assessee may be considered by the Assessing Officer after due verification as per law. Accordingly, this issue is remitted back to the file of Assessing Officer to re-do the assessment as per the above direction and also a proper opportunities of being heard to the assessee may be granted.
In the result, appeal filed by the Assessee is allowed for statistical purposes.
Order pronounced on 14th June, 2024.