05 February 2023
i have received a notice as i have not filed itr in 2015, my ques is i sold the property in which cap gain arises i was the sole owner, for cap gain exemption i purchased the property in joint ownership. my ques is will i get half cap gain exemption as my second purchase was joint ownership, or i can claim full cap gain exemption second will they consider my point of cap gain?? can they say u have not filed the itr so it will be considered as nothing has been done from your part and pay full tax on property sold....as i have not filed the itr, third what can be the penelty for non filing of itr. thnx
05 February 2023
1 You can claim full exemption. 2 They can't say you have not filled ITR. See the case law.
Smt. Tupel Raja Iyengar Shakuntala Vs ITO (ITAT Bangalore) Conclusion: Assessee was entitled to claim long term capital gain exemption under section 54 on sale of property and the same could not be denied on the ground that income tax return was not filed declaring such income. Held: Assessee had computed the long term capital gains (LTCC) on the sale proceeds of the property after claiming indexed cost of acquisition. Assessee had purchased a residential property for a consideration within 7 days from the sale of original property on 16.05.2008. AO, after examination of details / documents filed by assessee had reported that the documents produced by assessee had been examined and no adverse remarks had been made by AO with regard to the computation of LTCG as well as the entitlement to claim exemption under section 54. AO was satisfied about the sale / purchase of the said properties and the investment benefit available to assessee under section 54. AO had only opined that there was a claim for exemption under section 54 and that no return of income had been filed by assessee for Assessment Year 2009-10. It was held this remark by AO could not be a factor to deny assessee its legitimate claim for exemption under section 54. There was no prohibition under the Act on the assessee in claiming exemption under section 54 in case it has not filed a return of income. Such a legal claim could be put forth at any stage of assessment / appellate proceedings and should be considered on merits in the light of the details / documents / corroborative evidence filed in this regard. Having considered the entire material on record on this issue and taking into account the peculiar facts and circumstances of the case on hand, it was concluded that the assessee was entitled to exemption under section 54 and therefore the entire sale consideration assessed by the AO was hereby deleted.
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