Sri Chandan Kumar Agarwal, Kolkata V. I.T.O Wd - 32(2),kolkata, Kolkata

ITA 1290/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4693 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 26-04-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DINABANDHU NASKAR JCIT SRDR
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Capital asset
• Section: 143(3); 10B; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 1290 / KOL / 2013 ASSESSMENT YEAR :2009-10 SRI CHANDAN KR AGARWAL C/O D.J.SHAH & CO. KALYAN BHAVAN, 2 ELGIN ROAD, KOLKATA-700 020 [ PAN NO.AEQPA 8020G ] V/S . INCOME TAX OFFICER, WARD-32(2), 10B MIDLETON ROW, KOLKATA /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MIRAJ D SHAH, FCA /BY RESPONDENT SHRI DINABANDHU NASKAR, JCIT, SR-DR /DATE OF HEARING 26-04-2016 /DATE OF PRONOUNCEMENT 08-06-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-XIX, KOLKATA IN APPEAL NO.187/ CIT(A)-XIX/ITO, WD- 32(2)/KOL/12-13 DATED 26.03.2013. ASSESSMENT WAS FR AMED BY ITO WARD- 32(2), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 12.12.2011 FOR A SSESSMENT YEAR 2009-10. SHRI MIRAJ D SHAH, LD. AUTHORIZED REPRESENTATIVE AP PEARING ON BEHALF OF ASSESSEE AND SHRI DINABANDHU NASKAR, LD. DEPARTMENT AL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. ITA NO.1290/KOL/2013 A.Y.2009-10 SH. CHANDAN KR AGARWAL V. ITO WD-32(2) KOL. PAGE 2 2. THE ONLY GROUND NO.3 IS AS REGARDS THAT LD. CIT( A) ERRED IN TAXING THE ENTIRE CAPITAL GAINS IN THE HANDS OF ASSESSEE THOUG H ASSESSEE IS 50% OWNER OF SUCH PROPERTY. THE RELEVANT GROUND RAISED IS REP RODUCED BELOW:- 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN TAXING THE ENTIRE CAPITAL GAIN ON SALE OF HOUSE PROPERTY IN THE HANDS OF THE ASSESSEE. THE LD . COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO CONSIDER THAT THE AS SESSEE MERELY OWNED HALF OF THE PROPERTY. THE ADDITION IS UNJUSTIFIED, UNCAL LED FOR, UNWARRANTED HENCE BE DELETED. 3. FACTS OF THE CASE IN BRIEF ARE THAT ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL AND ENGAGED IN THE WHOLESALE BUSINESS OF SAREES. DURING THE YEAR, ASSESSEE HAS SOLD PROPERTY ON DATED 26.05.2008 WHIC H WAS PURCHASED ON 30.06.2006 FOR AN AMOUNT OF 4 LACS. AS PER THE DISTRICT VALUATION OFFICER (DVO FOR SHORT) THE SAID PROPERTY WAS VALUED AT 39,17,714/- WHICH WAS ACCEPTED BY ASSESSEE. HOWEVER, ASSESSEE HAS DECLARE D THE GAIN AROSE AS A RESULT OF SALE OF THE PROPERTY AS LONG TERM CAPITAL GAINS (LTCG FOR SHORT) AND CLAIMED EXEMPTION U/S 54 OF THE ACT. DURING THE ASS ESSMENT PROCEEDINGS, AO OBSERVED THAT PERIOD OF HOLDING OF THE PROPERTY IS LESS THAN 36 MONTHS AND ACCORDINGLY HE DENIED THE EXEMPTION CLAIMED BY ASSE SSEE U/S. 54 OF THE ACT. 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHERE ASSESSEE HAS TAKEN A NEW PLEA AND SUBMITTED THAT IM PUGNED PROPERTY WAS OWNED BOTH BY ASSESSEE AND HIS WIFE AND PRODUCED PU RCHASE DEED OF THE PROPERTY IN SUPPORT OF HIS CLAIM. ASSESSEE BEFORE L D. CIT(A) PLEADED THAT ASSESSEE BEING 50% OWNER OF THE PROPERTY SHOULD BE LIABLE TO TAX UNDER THE HEAD CAPITAL GAINS TO THE EXTENT OF 50% ONLY. HOW EVER, LD. CIT(A) DISREGARDED THE PLEA OF ASSESSEE BY OBSERVING AS UN DER:- V. THERE IS NO MATERIAL ON THE RECORD WHICH SUGGES TS THAT THE INVESTMENT IN PROPERTY, WHOSE SALE IS RESULTING INTO CAPITAL GAIN , WAS MADE BY APPELLANTS WIFE ALSO AND THE RECEIPT FROM SALE OF SUCH CAPITAL ASSETS IS EQUALLY DEPOSITED IN HER BANK ACCOUNT AND SUCH CLAIM OF CAPITAL GAIN IS MADE BY FILING RETURN OF INCOME. FROM THE COPY OF DEED FILED IT IS NOTICED T HAT THERE IS NO PAN NO. FOR MRS. RICHA AGARWAL. THIS ALSO SUGGEST THAT THERE IS NO SOURCE OF INCOME IN THE HANDS OF MRS RICHA AGARWAL AND THE APPELLANT HAS NO T BEEN FILING REGULAR RETURN OF INCOME SUGGESTING NO SOURCE OF ANY INCOME IN HER HANDS. IN VIEW OF ITA NO.1290/KOL/2013 A.Y.2009-10 SH. CHANDAN KR AGARWAL V. ITO WD-32(2) KOL. PAGE 3 THIS ALSO THE TAXABILITY OF CAPITAL GAIN HAS BEEN R IGHTLY DONE IN THE HANDS OF PERSON, WHERE THE SOURCE OF INCOME EXISTS. IN THE B ACKGROUND OF ALL THESE DETAILS THE BELATED CLAIM OF APPELLANT FOR CLAIMING CAPITAL GAIN EQUALLY IN THE HANDS OF APPELLANT AND HIS WIFE IS NOTHING BUT AN A FTER-THOUGHT WHICH IS NOT SUBSTANTIATED BY PROPER MATERIAL AND THEREBY LACKIN G JUSTIFICATION. IN VIEW OF AFORESAID DISCUSSION THE 3 RD GROUNDS OF APPEAL RAISED BY THE APPELLANT IS REJECTED AND CHARGING OF CAPITAL GAIN IN THE HANDS OF APPELLANT IS UPHELD. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E CAME IN SECOND APPEAL BEFORE US. 5. BEFORE US LD. AR FILED A PAPER BOOK WHICH IS RUN NING PAGES 1 TO 117 AND STATED THAT ASSESSEE IS OWNER OF 50% OF THE PRO PERTY SO HE SHOULD BE LIABLE TO BE TAXED TO THE EXTENT OF 50% ONLY AND CI TED VARIOUS CASE LAWS. HE DREW OUR ATTENTION AT PAGE 53 OF THE PAPER BOOK WHE RE PAN NO. OF MRS RICHA AGARWAL, WIFE OF ASSESSEE WAS RECORDED. AGAIN LD. A R ALSO DREW OUR ATTENTION AT PAGE 22 OF THE PAPER BOOK WHERE THE REGISTRY DOC UMENTS WERE PLACED AND NAME OF ASSESSEE AND HIS WIFE WERE ALSO APPEARING O N THE REGISTRY PAPERS AND ON PAGE AT 81 OF THE PAPER BOOK WHERE THE SIGNA TURE OF VENDOR BEING ASSESSEE AND HIS WIFE WERE DULY RECORDED. IN REJOIN DER, LD. DR VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES BELOW AND SUBMI TTED THAT PURCHASE DOCUMENT OF THE PROPERTY WERE NOT SIGNED BY BOTH TH E PARTIES AS ASSESSEE AND HIS WIFE. HE FURTHER STATED THAT THERE IS NO ME NTION THAT HE HAS MADE THE INVESTMENT AT THE TIME OF PURCHASE OF THE SAID PROP ERTY WHERE THE ENTIRE AMOUNT WAS INVESTED BY ASSESSEE HIMSELF OR BY HIS W IFE OR JOINTLY. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT ASSESSEE HAS DECLARED ENTIRE C APITAL GAINS IN ITS INDIVIDUAL HAND AT THE TIME OF ASSESSMENT. HOWEVER, BEFORE APP ELLATE STAGE ASSESSEE DECLARED HIMSELF TO BE THE OWNER OF THE SAID PROPER TY TO THE EXTENT OF 50% AND FOR REMAINING 50% HIS WIFE WAS THE OWNER OF THE PRO PERTY. ASSESSEE PRAYED BEFORE LD. CIT(A) TO TAX THE CAPITAL GAINS IN BOTH THE HANDS BUT LD. CIT(A) DISREGARDED THE CLAIM OF ASSESSEE BY HOLDING THAT T HERE IS NO INFORMATION ABOUT THE INVESTMENT IN PROPERTY AND WIFE OF ASSESS EE HAS NOT DECLARED THE CAPITAL GAINS IN HER RETURN OF INCOME. THERE WAS NO PAN NO. OF MRS. RICHA ITA NO.1290/KOL/2013 A.Y.2009-10 SH. CHANDAN KR AGARWAL V. ITO WD-32(2) KOL. PAGE 4 AGARWAL, WIFE OF ASSESSEE. NOW THE QUESTION BEFORE US AROSE WHETHER THE CAPITAL GAINS SHOULD BE TAXED IN THE HANDS OF ASSES SEE AND HIS WIFE IN THE AFORESAID FACTS AND CIRCUMSTANCES. FROM THE FACTS O F THE CASE, WE FIND THAT LD. AR FAILED TO BRING ABOUT THE PERSON WHO HAS ACTUALL Y MADE INVESTMENT IN THE PROPERTY IN QUESTION. WE ALSO FIND THAT THIS ISSUE WAS NOT RAISED BEFORE THE AO. IN THE ABSENCE OF NECESSARY INFORMATION, WE ARE INCLINED TO RESTORE THIS ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION ACCO RDING TO LAW IN THE INTEREST OF JUSTICE AND FAIR PLAY. THE ASSESSEE IS DIRECTED TO EXTEND FULL COOPERATION TO THE AO. HENCE, GROUND OF ASSESSEES APPEAL IS ALLOWED F OR STATISTICAL PURPOSE. 7. GROUNDS NO.1, 2 AND 4 RAISED BY ASSESSEE IN HIS APPEAL HAVE NOT BEEN PRESSED BY THE LD. AR OF ASSESSEE AT THE TIME OF HE ARING BEFORE US. THOSE ARE, THEREFORE, DISMISSED AS NOT PRESSED. 8. IN THE RESULT, ASSESSEES APPEAL STANDS PARTLY ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 08/ 06/2016 SD/- SD/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 08 / 06 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SRI CHANDAN KR. AGARWAL, C/O D.J. SHAH & CO. KALYAN BHAVAN, 2, ELGIN ROAD, K OLKATA-20 2. /RESPONDENT-ITO WARD-32(2), 10B, MIDDLETON ROW, KOL KATA 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,