ITO, Meerut V. Smt. Kailash Kumari, Meerut

ITA 153/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87102 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 16-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 09-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: R P NARANG; H C JAIN
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C; 142(1)

Judgement Text

ITA NO. 153/ DEL/ 2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 1 5 3 / DEL/201 3 A.Y. : 200 9 - 10 INCOME TAX OFFIER, WARD 1(3), MEERUT VS. SMT. KAILASH KUMARI, W/O LATE SHRI KISHAN CHAND, 106/B, GALI NO. 2, THAPAR NAGAR, MEERUT (PAN:AXEPK0055C) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. B.R.R. KUMAR, SR. DR ASSESSEE BY : SH. H.C. JAIN, ADV. & SH. R.P. NARANG, ADV. DATE OF HEARING : 1 6 - 0 3 - 201 5 DATE OF ORDER : 18 - 0 3 - 201 5 ORDER PER H.S. SIDHU, JM REVENUE HAS FILED THIS APPEAL AGAINST THE O RDER DATED 5 .1 0 .201 2 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS ), MEERUT P ERTAINING TO ASSESSMENT YEAR 200 9 - 10 . 2. THE GROUNDS RAISED BY THE DEPARTMENT READ AS UNDER: - 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 32,32,639/ - TOWARDS LONG TERM CAPITAL GAIN IGNORING THE FACT THAT PROPERLY WAS ACQUIRED BY THE ASSESSEE THROUGH WILL DATED ITA NO. 153/ DEL/ 2013 2 26.7.1978 WHICH WAS EXECUTED AFTER SO CALLED AGREEMENT DATED 21.5.1976 FOR SALE BETWEEN SHRI BAIJ NATH GARG AND SHRI KISHAN CHAND BATHLA AND THUS, SUPERSEDED THE AGREEMENT. THE SAID AGREEMENT DOES NOT HAVE ANY LEGAL SANCTITY IN ABSENCE OF ANY VALIDITY TO CLAIM THE SAL E. MOREOVER, ASSESSEE HERSELF HAS EXECUTED SALE DEED IN THE CAPACITY OF SELLER AND THUS HAS RELINQUISHED HER RIGHT IN THE PROPERTY WHICH IS A TRANSFER U/S. 2(47) OF THE I.T. ACT, 1961 AND ANY GAIN ARISING OUT OF SUCH TRANSFER AFTER TAKING INTO CONSIDERATI ON THE PROVISIONS OF SECTION 50C OF THE I.T. ACT, 1961 IS CHARGEABLE TO INCOME TAX UNDER SECTION 45 OF THE I.T. ACT, 1961. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, MODIFY AND / OR DELETE ANY GROUND(S) OF APPEAL. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME FOR A.Y. 2009 - 10 DECLARING TOTAL INCOME OF RS. 1,74,790/ - FROM OTHER SOURCES AND SHORT TERM CAPITAL LOSS OF RS. 1,01,825/ - (WHICH WILL NOT BE SET OFF FROM ANY OTHER H E AD OF INCOME SAME THING WAS NARRATED BY THE ASSESSEE IN HER COMPUTATION OF INCOME) ON 18.3.2010. THE CASE OF THE ASSESSEE WAS PROCESSED ON AST AT RETURNED INCOME. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S. 143(2) WAS ISSUED ON 28.9.2010 WHICH WAS DULY SERVED UPON THE ASSESSEE THROUGH SPEED POST. THEREAFTER, OTHER STATUTORY NOTICES U/S. 142(1) OF THE I.T. ACT, 1961 WERE ISSUED ITA NO. 153/ DEL/ 2013 3 FROM TIME TO TIME. IN RESPONSE THERETO, ASSESSEE S COUNSEL ATTENDED THE HEARING AND SUBMITTED REQUISITE DETAILS/ DOCUMENTS BEFORE THE AO. THE ASSESSMENT WAS FRAMED U/S. 143(3) OF THE I.T. ACT VIDE ORDER DATED 5.12.2011 AND MADE THE ADDITION OF RS. 32,32,639/ - ON ACCOUNT OF LONG TERM CA PITAL GAIN. 4 . AGAINST THE AFORESAID ASSESSMENT ORDER OF THE ASSESSING OFFICER, ASSEESSEE APPEALED BEFORE THE LD. FIRST APPELLATE AUTHORITY, WHO VIDE IMPUGNED ORDER 5 . 1 0 .201 2 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESEE . 5 . AGGRIEVED BY THE AFORESAID ORDER DATED 5 . 1 0 .201 2 , REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 6 . AT THE TIME OF HEARING LD. DEPARTMENTAL REPRESENTATIVE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND REITERATED ON THE CONTENTIONS RAISED IN THE GR OUNDS OF APPEAL FILED BY THE REVENUE. 7 . ON THE OTHER HAND, LD. COUNSEL OF THE ASSESSEE RELIED UPON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ORDER OF THE LD. CIT(A) MAY BE UPHELD. 8 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS ESPECIALLY THE IMPUGNED ORDER DATED 5 . 1 0 .201 2 , WE FIND THAT LD. CIT(A) HAS GONE THROUGH THE AO S ORDER, ASSESSEE S EL ABORATE SUBMISSIONS INCLUDING THE ENCLOSURES I.E. COPIES OF THE SALE DEED, AGREEMENT TO SELL, RECEIPT, WILL AND HOUSE TAX RECEIPTS , THE AO'S REMAND REPORT AND ASSESSEE S COUNSEL REJOINDER . KEEPING IN VIEW THE ORDERS OF THE REVENUE AUTHORITIES, WE ARE OF THE VIEW THAT THE LD. CIT(A) IS RIGHT IN HOLDING THAT THERE IS NO MATERIAL WITH THE AO FOR CONCLUDING THAT THE TRANSFER OF THE PROP ERTY IN QUESTION GIVING RISE TO LONG TERM CAPITAL GAIN AMOUNTING TO RS.32,32,639 / - ITA NO. 153/ DEL/ 2013 4 LIABLE TO TAX TOOK PLACE IN THE YEAR UNDER APPEAL. THE AO'S REMAND REPORT WHICH HAS BEEN REPLIED AND REBUTTED BY THE LD. COUNSEL OF THE ASSESSEE POINT - WISE, DOES NOT MAKE ANY WORTH - WHILE POINT WITH REFERENCE TO THE LD. COUNSEL S SUBMISSIONS. LD. CIT(A) HAS CORRECTLY OBSERVED THAT THE LD. COUNSEL OF THE ASSESSEE ON THE OTHER HAND, HAS BEEN ABLE TO BRING OUT FACTS WITH SUPPORTING UNREBUTTED EVIDENCE WHICH ARE CONTAINED IN TH E FORGOING PARAS TO SHOW \ HAT BY VIRTUE OF THE WRITTEN VENDOR UNDER THE AGREEMENT TO SELL EVER PASSED ON THE POSSESSION OF THE PROPERTY TO THE APPELLANT OR SHE EVER ACQUIRED ANY OWNERSHIP RIGHT OR TITLE OVER THE PROPERTY, THE PROPERTY IN FACT VESTED AND ST OOD TRANSFERRED TO THE VENDEE ON 21.05.1976. WE ALSO FIND CONSIDERABLE COGENCY IN THE FINDING OF THE LD. CIT(A) THAT A SSUMPTIONS AND PRESUMPTIONS ON THE PART OF THE AO FOR COMING TO THE CONCLUSIONS AND ARRIVING AT AND MAKING ADDITION OF THE RS.32,32,639/ - FOR LONG TERM CAPITAL GAIN CANNOT BE SUSTAINED AS THESE HAVE BEEN FULLY REBUTTED AND DISPROVED ON THE BASIS OF MATERIAL ON RECORD. I N THE BACKGROUND OF THE AFORESAID DETAILED DISCUSSIONS , WE FIND THAT LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION OF RS. 32,32,639/ - ON ACCOUNT OF LONG TERM CAPITAL GAIN. THEREFORE, W E DO NOT SEE ANY REASON TO INTERFERE WITH THE WELL REASONED ORDER OF THE LD. CIT(A), ACCORDINGLY, WE UPHOLD THE SAME AND DECIDE THE ISSUE AGAINST THE REVENUE BY DISMISSING THI S GROUND OF APPEAL. ITA NO. 153/ DEL/ 2013 5 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE O PEN C OURT ON 1 8 / 0 3 /20 1 5 . S D / - S D / - [ T.S. KAPOOR ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 1 8 / 3 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 153/ DEL/ 2013 6