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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI D.T. GARASIA, JM & SHRI MANOJ KUMAR AGGARWAL, AM
आदेश / O R D E R
Per Manoj Kumar Aggarwal (Accountant Member)
The captioned appeals by separate assessee for Assessment Year [AY] 2007-08 contest separate orders of first appellate authority. Since, common issue is involved in both the appeals, we dispose-off the same by way of this common order for the sake of convenience & brevity. First we take up Ld. Commissioner of Income Tax (Appeals)-32 [CIT(A)], Mumbai dated 25/07/2014. The issue is related with quantum of capital gains earned by the assessee.
Briefly stated, the assessee being resident individual was subjected to an assessment u/s 143(3) read with section 147 for impugned AY on 28/03/2013 at Rs.98,00,100/- as against returned income of Rs.1,83,092/- filed by the assessee on 17/07/2008. The reassessment proceedings were initiated vide notice u/s 148 dated 27/03/2012 consequent to assessment proceedings on one Hiren Narsey for AY 2007-08 where it was observed that the assessee, being joint owner, made wrong claim of capital gains on sale of certain property in AY 2009-10, which in fact was chargeable to tax in AY 2007- Kalyanji Naresy & Bhawani Narsey Assessment Year 2007-08 08. The property was jointly held by 4 family members, each having 1/4th share. The development rights of the property were sold vide agreement dated 09/06/2006 for a sum of Rs.440 Lacs, however, the stamp duty value of the same was Rs.4,58,44,500/- and hence the provisions of Section 50C were applicable. The assessee, in return of income pursuant to notice u/s 148, reflected Long Term Capital Gains [LTCG] against the same at Rs.14.15 Lacs. However, Ld. AO noticed that the assessee was entitled for additional sum of Rs.35,43,500/- by virtue of amendment deed dated 29/12/2010 and therefore, the sale value of the property was required to be enhanced by that value. Accordingly, the deemed sale consideration of the property as per Section 50C was taken to be Rs.493.88 Lacs. The assessee claimed construction cost at Rs.32.50 Lacs, however, the same was taken to be Rs.27.30 Lacs since it was noted that the assessee was entitled for smaller flat in comparison to other co-owners. Further, the assessee claimed an amount of Rs.4.95 Lacs as rental expenses for alternate accommodation, which in the opinion of Ld. AO, were not available to the assessee. The assessee’s another claim of Rs. 62.04 Lacs u/s 54 towards re-investment in new flat was rejected on the premises that the assessee was entitled for deduction against one house property only. Finally, after all adjustments, the LTCG was worked out to be Rs.96.17 Lacs as against Rs.14.15 Lacs reflected by the assessee. 3. Aggrieved, the assessee contested the same with partial success before Ld. CIT(A) vide impugned order dated 25/07/2014. Before Ld. CIT(A), the assessee did not contest the claim of rent paid for Rs.4.95 Lacs & stamp duty paid for Rs.4.04 Lacs. The only addition contested by ITA Nos. 5842-43/M/2014 Kalyanji Naresy & Bhawani Narsey Assessment Year 2007-08 the assessee was deduction u/s 54 for Rs.58 Lacs, which was dismissed by Ld. CIT(A) after considering assessee’s submissions and judicial pronouncements. 4. Aggrieved, the assessee is in further appeal before us. In the grounds of appeal
, the assessee, by way of ground numbers 1 & 3, has contested the quantum of sale consideration adopted by the Ld. AO and denial of deduction u/s 54 for Rs.62.04 Lacs. Ground No. 2 contest denial of rent paid for Rs.4.95 Lacs towards alternative accommodation.
5. The Ld. Counsel for Assessee [AR], at the outset, drew our attention to the fact that similar claims have been allowed by the revenue in the case of other co-owners and therefore, the same should be allowed to the assessee also and hence, the matter may be restored back to the file of Ld. CIT(A). Per Contra, Ld. DR contended that the assessee never contested the quantum of sale consideration adopted by Ld. AO before first appellate authority and this is altogether a new claim.
6. We have heard the rival contentions and perused relevant material on record. We have perused the order of this Tribunal order dated 19/12/2012 rendered in the case of other co-owner namely Chittu B.Narsey and consequential order passed by Ld. AO u/s 254 where we, prima facie, find that deduction u/s 54 has been granted to the co-owner. Similarly, the Ld. CIT(A), in the appellate order of Hiren K.Narsey order dated 15/06/2012 has allowed similar deduction. The assessee has contested the sale consideration adopted by the Ld. AO which is altogether a new claim. Therefore, without delving much deeper into the issue, we restore the matter back to the file of Ld. CIT(A) to re-adjudicate the issues raised by the assessee in this