Shri Sunilkumar B.Handa, Ahmedabad V. The Dy.CIT.,(OSD)Range-1, Ahmedabad

ITA 1329/AHD/2011

• Counselvise Citation: 132920514 RSA 2011
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-06-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 04-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: S N DIVETIA
• Keywords: Principle of natural justice

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .# ## #. . . . % % % %, , , , &' ( & ' &' ( & ' &' ( & ' &' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND N.S. SAINI, ACCOUNTANT MEMBER) ITA NO.1329/AHD/2011 [ASSTT.YEAR : 2007-2008] SUNIL KUMAR B. HANDA 203, SHAKUNTAL OPP: C.N. VIDYALAYA AMBAWADI, AHMEDABAD. PAN : AALPH 9517 Q /VS. DCIT(OSD), RANGE-1 AHMEDABAD. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 &/ ASSESSEE BY : SHRI S.N. DIVETIA ( 0 1 &/ REVENUE BY : SHRI P.L. KUREEL, SR.DR 3 0 /4'/ DATE OF HEARING : 9 TH JUNE, 2014 567 0 /4'/ DATE OF PRONOUNCEMENT : 4.7.2014 &8 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-2008 IS DIRECTED AGAINST THE O RDER OF THE CIT(A). 2. THERE IS A DELAY OF ONE DAY IN FILING THE APPEAL BEFORE THE TRIBUNAL, FOR WHICH THE ASESSEE HAS FILED APPLICATION FOR CONDONA TION OF DELAY, STATING REASONS FOR THE DELAY. THE LEARNED DR HAS OPPOSED THE CONT ENTS OF THE APPLICATION. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON THE ISSUE OF C ONDONATION OF DELAY. IN VIEW ITA NO.1329/AHD/2011 -2- OF THE CIRCUMSTANCES EXPLAINED BY THE ASSESSEE, WE CONDONE THE DELAY OF ONE DAY IN FLING THE PRESENT APPEAL BEFORE THE TRIBUNAL . 3. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1.1 THE ORDER PASSED U/S.250 OF THE ACT ON 11.2.20 11 FOR A.Y.2007-08 BY CIT(A) UPHOLDING THE ADDITIONAL CAPITAL GAIN OF RS.38,71,849/- MADE BY THE AO IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST T HE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN HOLDING THE ADDITION TOWARDS CAPITAL GAINS MADE BY WITHOUT CONSIDERING FULLY AND PROPERLY THE EXPLANATION OFFERED AND EVIDENCE PRODUCED BYT EH AP PELLANT. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN HOLDING THAT THE APPELLANT WAS SHAVING 50% SHARE IN THE IMMOVABLE PROPERTY SOL D BY HIM AND THE SALE CONSIDERATION ACCRUING OR ARISING TO HIM WAS T O THE EXTENT OF 50%. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE LD.CIT(A) OUGHT TO HAVE APPRECIATED THAT IN VIE W OF THE UNDERSTANDING REACHED WITH THE CO-OWNER OF THE PROPERTY, HE WAS H OLDING 45% SHARE/OWNERSHIP IN THE SAID PROPERTY, SO THAT THE S ALE CONSIDERATION TO THE EXTENT OF RS.45% ACCRUED TO HIM AND AS SUCH CAPITAL GAINS WAS RIGHTLY COMPUTED BY HIM. 2.3 THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE ADD ITIONAL CAPITAL GAINS OF RS.38,71,849/- 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS REACHED A VERBAL UNDERSTANDING WITH THE CO-OWNER OF THE PROPERTY, WHO HAPPENS TO BE BROTHER OF THE ASSESSEE, AND WAS ACCORDINGLY HOLDING 45% SHARE/OWNERSHIP IN THE SAID PROPERTY, AND THEREFORE, CAPITAL GAIN O N THE SAME TO THE EXTENT OF 45% IN THE PROPERTY SHOULD HAVE BEEN ASSESSED UNDER THE HEAD CAPITAL GAINS AND NOT 50% SHARE AS ASSESSED BY THE AO, AND CONFIRMED BY T HE CIT(A). HE SUBMITTED THAT THE PAYMENT FOR SALE OF THE IMMOVABLE PROPERTY HAS BEEN RECEIVED IN PROPORTION OF 45% TO THE ASSESSEE AND 55% TO THE CO -OWNER OF THE PROPERTY, AND REFERRED TO THE COPY OF THE SALE DEED FILED IN THE COMPILATION BEFORE THE TRIBUNAL. THE LEARNED DR SUBMITTED THAT THE IMMOVABLE PROPERT Y COULD NOT BE TRANSFERRED ITA NO.1329/AHD/2011 -3- BY VERBAL UNDERSTANDING BETWEEN THE PARTIES. HE R ELIED ON THE ORDERS OF THE AO AND THE CIT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A), AND ALSO COPY OF THE SALE DEED OF T HE PROPERTY FILED IN THE COMPILATION BEFORE US. WE FIND THAT IN THE SALE DE ED ITSELF AT PAGE NO.7 THEREOF, IT IS CLEARLY MENTIONED THAT BOTH THE CO-OWNERS OF THE PROPERTY, I.E. THE ASSESSEE AND HIS BROTHER, WERE HAVING EQUAL SHARE IN THE SAI D PROPERTY. THERE IS NO DOCUMENTATION FOR TRANSFER OF 5% SHARE BY THE ASSES EE TO ITS BROTHER IN THE IMMOVABLE PROPERTY. A MERE CLAIM OF THE ASSESSEE T HAT IT HAS RECEIVED 45% IN THE SALE PROCEEDS IN THE PROPERTY IS NOT DECISIVE O F THE ISSUE. THE ASSESSEE HAS CONCEDED THAT NO TRANSFER DEED TO TRANSFER THE 5% S HARE IN THE SAID PROPERTY IN FAVOUR OF THE CO-OWNER OF THE PROPERTY WAS EVER EXE CUTED BETWEEN THE PARTIES. IN THE ABSENCE OF ANY EVIDENCE IN SUPPORT OF THE CL AIM OF THE ASSESSEE THAT 50% SHARE WAS REDUCED TO 45% SHARE IN THE SAID PROPERTY IN QUESTION, WE HOLD THAT THERE IS NO MISTAKE IN THE ORDERS OF THE AO AND THE CIT(A) ON THIS ISSUE IN HOLDING THAT THE ASSESSEE IS LIABLE FOR CAPITAL GAI N TAX AT 50% OF THE SHARE IN THE PROPERTY, AND ACCORDINGLY, THE ORDER OF THE CIT(A) ON THIS ISSUE IS CONFIRMED AND THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE D ISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( # ## #. .. .# ## #. . . . % % % % /N.S.SAINI) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD