The ACIT, Circle-1(2), Baroda V. Shri Rakesh S. Agrawal, Baroda

ITA 1101/AHD/2010

• Counselvise Citation: 110120514 RSA 2010
• Duration Of Justice: 2 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SHANKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 1101/ AHD/2010 (ASSESSMENT YEAR 2004-05) DCIT, CIRCLE 1(2), BARODA VS. SHRI RAKESH S AGRAWAL, 61, ALKAPURI, R.C. DUTT ROAD, ALKAPURI, BRODA PAN/GIR NO. : AAQPA3448P (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI T SHANKAR, SR. DR RESPONDENT BY: SHRI SUNIL TALATI, AR DATE OF HEARING: 31.08.2012 DATE OF PRONOUNCEMENT: 05.10.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) I. BARODA DATED 31.12.2009 FOR THE ASSESSMENT YEAR 200 4-05. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1(A). ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE ID. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.7,15,0007- ON ACCOUNT OF THE INCOME OF THE ASSES SEE ON THE BASIS OF THE ANNUAL LETTING VALUE WORKED OUT AT RS. 14,59,5187- BEING THE REASONABLE BANK RATE OF RETURN @ 9.25% OF THE VALUE OF THE PROPERTY AT 6, JANTAR MANTAR ROAD, NEW DELHI. 1(B). THE ID. CIT(APPEALS) FAILED TO APPRECIATE THA T AS PER THE AGREEMENT DATED 11.08.1999 PLACED ON RECORD, THE NA ME OF THE PURCHASER APPEARING IN THE DOCUMENTS IS THAT OF THE ASSESSEE SHRI RAKESH S.AGARWAL. NOWHERE THE AGREEMENT REFERS TO T HE HUF OF SHRI R.S.AGARWAL AS THE OWNER OF THE PROPERTY AND N OWHERE THE AGREEMENT REGISTERS THAT SHRI RAKESH AGARWAL HAS AC TED ON BEHALF I.T.A.NO. 1101 /AHD/2010 2 OF THE HUF AS ITS KARTA FOR PURCHASING THE PROPERTY IN THE NAME OF HUF. 1(C). THE CIT(APPEALS) FURTHER FAILED TO APPRECIATE THAT AS PER PROVISIONS OF SECTION 27(IIIA), EVEN A PERSON WHO I S ALLOWED TO TAKE OR RETAIN POSSESSION OF ANY BUILDING OR PART THEREO F IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882) S HALL BE DEEMED TO BE THE OWNER OF THAT BUILDING OR PART THEREOF. W HEREAS, IN THE INSTANT CASE THE PROPERTY IS REGISTERED IN THE NAME OF THE ASSESSEE AND THE ASSESSEE IS THE EFFECTIVE OWNER OF THE PROP ERTY AT 6, JANTAR MANTAR ROAD, NEW DELHI. 3. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR A LTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. RELIEF CLAIMED IN APPEAL IT IS PRAYED THAT THE ORDER OF THE CIT (APPEALS) B E SET ASIDE AND THAT OF THE A.O. BE RESTORED. 2. LD. D.R. SUPPORTED THE ASSESSMENT ORDER WHEREAS IT IS SUBMITTED BY THE LD. A.R. THAT THIS ISSUE IS COVERED IN FAVOUR O F THE ASSESSEE BY THE TRIBUNAL ORDER RENDERED IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2000- 01IN I.T.A.NO. 1432/AHD/2008 AND C.O. NO.118/AHD/20 08 DATED 04.12.2009. HE SUBMITTED A COPY OF THIS TRIBUNAL O RDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISION IN THE ASSESSEES OWN CASE FOR TH E ASSESSMENT YEAR 2000- 01. IN THAT YEAR, IT IS THE FINDING GIVEN BY THE T RIBUNAL THAT THE REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD TO CONTROVERT THE FINDING OF FACT RECODED BY LD. CIT(A) THAT THE CONCERNED ACIT ACCEPTED THE WEALTH TAX RETURN OF THE ASSESSMENT YEAR 1999-2000 AND 2000-01 OF THE AS SESSEE INDIVIDUAL WHEREIN LOAN ADVANCED TO HUF AND INVESTED BY HUF IN PURCHASE OF PROPERTY HAD BEEN ACCEPTED. IT IS ALSO NOTED THAT LD. CIT(A) HAS ALSO NOTED THAT THE SAID HUF HAS FULLY REPAID THE LOAN I N SUBSEQUENT YEAR. UNDER THESE FACTS, IT WAS HELD BY THE TRIBUNAL IN T HAT YEAR THAT THE PROPERTY IN QUESTION DID NOT BELONG TO THE ASSESSEE AND LD. CIT(A) DIRECTED A.O. TO I.T.A.NO. 1101 /AHD/2010 3 CONSIDER THE VALUE OF THE PROPERTY IN THE HANDS OF THE HUF AND DELETED THE ADDITION IN THE HANDS OF THE PRESENT ASSESSEE I.E. INDIVIDUAL. IN THE PRESENT YEAR ALSO, THE FACTS ARE IDENTICAL AND NO DIFFERENC E IN FACTS COULD BE POINTED OUT BY THE LD. D.R. AND HENCE, RESPECTFULLY FOLLOWING THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 20 00-01, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 5. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 19/09/2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24/09/2012.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 05/10/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.9/10/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09/1 0/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .