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Income Tax Appellate Tribunal, “C” BENCH KOLKATA
Assessment Year: 2013-14 Sri Nirmalendu Nag, P.O. & P.S. Contai, Vill- Dhandghi, Dist, Purba, Mednapore - 721401 ................…...…………….... Appellant [PAN: AFSPN6745E] vs. ITO, Ward -27(2), Haldia, Office of the ITO, Wd. 27(2), Haldia, Basudebpur, P.O. Khanjanchak, Haldia, Purba Medinapore – 721602 ....................…..…....... Respondent Appearances by: Department represented by : A. Mukherjee, A.R. Assessee represented by : Prabhakar Prakash Ranjan, Addl. CIT, Sr. DR Date of concluding the hearing : September 09, 2024 Date of pronouncing the order : September 11, 2024
ORDER
Per Sonjoy Sarma, Judicial Member:
This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2013-14 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 24.11.2023 arising out of Assessment Order dated 22.11.2018, passed under Section 144/147 of the Act.
Sri Nirmalendu Nag 2. The assessee has raised the following grounds of appeal: “1. For that on the facts and in the circumstances of the case and in law the Ld CIT(A) NFAC grossly erred in law in confirming the order of Ld AO
2. For that the Ld CIT(A) NFAC failed consider and deduct Index Cost of Acquisition and Index Cost of Improvement from the value of the sale consideration(50%) of immoveable property(Land & Building)
3. For that the Ld A O erred in law by invoking provisions of Sec 50C of the IT Act without referring the matter before the Ld Valuation Officer U/S 50C(2) of the IT Act, 961. 4 For that the Ld. CIT(A)NFAC failed to consider the order of Ld, CIT(A)NFAC in the matter of appellant's wife, Smt. Purnima Nag, who was the joint owner (50% share) of the said immoveable property sold to same purchaser jointly at a sale consideration of Rs. 14,90,000/- In the said case Ld. CIT(A) NFAC directed the A O to recompute the taxable long term capital gain after allowing deduction on account of Index cost of acquisition and Index Cost of Improvement from 50% of full value of consideration as determined by the Stamp valuation authority at Rs. 32,84,958/-
5. For that the Ld CIT(A) erred in confirming long term capital gain at Rs. 16,42,479/- instead of Rs,38,479/- as per appellants computation based on cost of the property as per valuation made by registered valuer, approved by CBDT, on 01- 04-2001 at Rs. 15,94,000 being the total fair market value of the immoveable property which was sold on 13-03-2013 (considering Stamp duty valuation Rs. 32,84,958/-).
6. For that the appellant craves leave to add, alter and/or amends the grounds of appeal on or before the date of hearing of this appeal.”
3. Brief facts of the case are that in the case of assessee an assessment proceedings u/s 147 of the Act was initiated and in consequent to that an order of assessment u/s 144 of the Act was passed for the AY 2013-14 on 22.11.2022 by computing the total income of the assessee at Rs. 16,42,480/- under the head ‘Capital Gains’ only.
4. Dissatisfied with the above order, the assessee went in appeal before the Ld. CIT(A), where the appeal of the assessee was dismissed. Aggrieved by the above order, the assessee is in appeal before this Tribunal raising 2 Sri Nirmalendu Nag multiple grounds, the main grievance of the assessee is that the alleged addition made by the Ld. AO was not correct and liable to be set aside. In this context, the Ld. AR stated that the assessee was a joint owner of immovable property with her wife and sold their property on 13.03.2013 for the sale consideration of Rs. 14,90,000/- recorded in the sale deed. But market value of the entire property in question was assessed at Rs. 32,84,958/- by the concerned stamp valuation authority for the purpose of stamp duty payable in connection with registration of the property and assessed long term capital gain of Rs. 16,42,479/- in the hands of the assessee by assuming 50% of share in the property. The Ld. AR stated that as in the case of assessee’s wife, there was also an assessment order was passed where the Ld. AO assessed the total income of assessee’s wife at Rs. 16,42,480/-. Aggrieved by the order of the Ld. AO, wife of the assessee’s went in appeal before the Ld. CIT(A), where the Ld. CIT(A) direct the AO to re-compute the indexation cost of acquisition and indexation cost of improvement out of full value of consideration which had determined by stamp valuation authority at Rs. 32,54,958/-. The Ld. AO after getting the order of Ld. CIT(A) passed an order u/s 250 of the Act recalculating the income of the assessee’s wife vide order dated 24.01.2024. The relevant extract of the aforesaid order is read as under: “5. Accordingly, giving effect to the above-mentioned order of the CIT(Appeal), NFAC, Delhi, in the case of the assessee for the A.Y. 2013-14, the indexed cost of acquisition and the indexed cost of improvement of the property and the long term capital gains in the hands of the assessee from sale of the immovable property on 13.03.2013 are calculated as under: A Long term capital gains as computed Rs. 16,42,479/- in the order of assessment passed u/s 144 of the Act on 22.11.2018 B. Less: 50% of the fair market value of the 15,94,000/- immovable property as per the 7,95,000/- valuation report submitted by the assessee
6. This order is passed u/s 144/250 of the Act after giving effect to the order of the CIT(Appeals), NFAC, Delhi, passed on 03.07.2023 u/s 250 of the Act in the assessee’s Appeal No. CIT(A), Kolkata – 7/10115/2018-19 for the A.Y. 2013-14. Tax payable is computed as per the computation sheet. Copies of the order and demand notice issued to the assessee. Total Income as per order u/s 250 144/147 dtd. 24.01.2024 Tax : Rs. 48,470/- thereon Add: Surcharge : Rs. NIL Add: EC : Rs. NIL Tax payable : Rs. NIL Add: Interest u/s 234A : Rs. NIL Interest u/s 234A : Rs. NIL Interest u/s 234A : Rs. NIL Total Tax & : Rs. NIL Interest payable Less: TDS : Rs. NIL Less: Self Assessment tax : Rs. NIL : Rs. NIL paid Tax & Interest payable : Rs. NIL
5. Now, the contention of Ld. AR before the Bench is that the alleged addition made as in the case of the present assessee’s wife arising out of same property which was sold by them jointly and the assessee being 50% of co-owner. Therefore, applying the same analogy, relief may be granted to the present assessee. Since, the assessee has no other income except the capital gain arising from sale of joint property held by him.
On the other hand, the Ld. DR supported the decision rendered by authority below.
We after hearing the rival submissions of the parties and perusing the material available on record and also considering the assessment order passed by the AO as in the case of assessee’s wife for the AY 2013-14 vide Sri Nirmalendu Nag order dated 24.01.2024, where the total income computed under the head ‘Long Term Capital Gains’ is only Rs. 48,470/- and no tax was imposed on the assessee’s wife. We applying the same analogy as in the case of the present assesse, since the present assessee is also a co-owner of 50% share of the same property and similarly, the capital gains arrive as in the case of assessee is only 48,470/- as the present assessee has no other income except the capital gains as stated above. Therefore, instant addition made by the AO and sustaining the order of AO by the Ld. CIT(A) is not proper therefore, we set aside the order of the Ld. CIT(A) by allowing appeal filed by the assessee with a direction to AO to delete the addition as made in the case of the assessee. In terms of the above, appeal of the assessee is allowed.
In the result, appeal of the assessee is allowed. Kolkata, the 11th September, 2024.