Pradeep Kumar Malhotra., Kolkata V. I.T.O Wd - 27(4),kolkata., Kolkata

ITA 190/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4827 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-04-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 28-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL JCITSRDR
• Assessee Lawyers: K K GOSWAMI
• Keywords: Salary income; Cost of acquisition
• Section: 143(3); 133(6)

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. 190 / KOL / 2013 ASSESSMENT YEAR :2009-10 PRADEEP KUMAR MALHOTRA, 465, BLOCK-K, NEW ALIPORE, KOLKATA-700 053 [ PAN NO.ADLPM 8747 N ] V/S . ITO, WARD-27(4), KOLKATA /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI K.K.GOSWAMI, ADVOCATE /BY RESPONDENT SHRI RAJAT KUMAR KUREEL, JCIT-SR-DR /DATE OF HEARING 28-04-2016 /DATE OF PRONOUNCEMENT 27-05-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA DATED 20.12.2012. ASSESSMENT WAS FRAMED BY ITO WARD-27(4), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 29.12.2011 FOR ASSESSMENT YEAR 2009-10. 2. SOLITARY GROUND RAISED BY ASSESSEE IS AS REGARDS THAT LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER ON AC COUNT OF TREATING THE INCOME OF M/S P.K.MALHOTRA & OTHERS (HUF) IN THE NA ME OF ASSESSEE. 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL AND HAS EARNED INCOME FROM SALARY AND SALE OF PROPERTY. DURING THE YEAR, ASSESSEE SOLD ITS ITA NO.190/KOL/2013 A.Y.2009 -10 PRADEEP KR. MALHOTRA V. ITO WD-27(4), KOL. PAGE 2 PROPERTY FOR A CONSIDERATION OF 1.30 CRORES. THE PAN OF ASSESSEE WAS ALSO FURNISHED TO THE REGISTRY AUTHORITY BUT ASSESSEE DI D NOT FURNISH ANY INFORMATION ABOUT THE SALE OF PROPERTY IN ITS RETUR N OF INCOME. THE AO DURING THE ASSESSMENT PROCEEDINGS SOUGHT CLARIFICATION FRO M ASSESSEE REGARDING THE NON-DISCLOSURE OF SALE-PURCHASE OF THE PROPERTY IN THE RETURN OF INCOME. IN COMPLIANCE THERETO ASSESSEE SUBMITTED THAT THE IMPU GNED PROPERTY BELONGS TO M/S P.K.MALHOTRA AND OTHER (HUF) AND AS SUCH THE AS SESSEE HAS NOT SOLD ANY PROPERTY DURING THE YEAR. HOWEVER, ASSESSEE FAI LED TO PRODUCE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAIM THAT P ROPERTY BELONG TO AFORESAID HUF. THEREFORE IN THE ABSENCE OF NECESSARY EVIDENCE AO TREATED THE ENTIRE AMOUNT OF 1.30 CRORES AS SHORT TRAM CAPITAL GAINS (STCG) AND ADDED IT TO THE INCOME OF ASSESSEE. 4. MATTER WAS CARRIED OVER TO LD. CIT(A) WHO CONFIR MED THE ACTION OF AO BY OBSERVING AS UNDER:- 3. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER . THE LD. A/R OF THE APPELLANT APPEARED DURING THE COURSE OF THE APPELLA TE PROCEEDINGS. HOWEVER, NEITHER ANY WRITTEN SUBMISSION WAS FIELD BY HIM NOR ANY EVIDENCE WAS PRODUCED IN RESPECT OF THE GROUND OF APPEAL. NO EVI DENCE HAS BEEN PRODUCED EITHER BEFORE THE AO OR BEFORE ME TO SHOW THAT THE SAID PROPERTY BELONGED TO HUF. THE INFORMATION GATHERED BY THE ASSESSING OFFI CER REVEALED THAT THE TRANSACTION WAS DONE BY THE APPELLANT AND HIS PAN W AS GIVEN TO THE REGISTERING AUTHORITY. THE APPELLANT HAS NEITHER FU RNISHED THE COST OF ACQUISITION OF THE PROPERTY OR THE DATE THEREOF EIT HER BEFORE THE AO OR BEFORE ME. IN THE FACT AND UNDER THE CIRCUMSTANCES OF THE CASE, NOTHING WORTHY OF MERIT WAS PRODUCED BEFORE ME TO CONTROVERT THE FIND INGS OF THE ASSESSING OFFICER. THEREFORE, I HOLD THAT THERE IS NO MERIT I N THE GROUND OF APPEAL RAISED BY THE APPELLANT. ACCORDINGLY, THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF THE CAPITAL GAIN AMOUNTING TO RS.1,30,00 ,000/- UNDER THE HEARD SHORT-TERM CAPITAL GAIN IN THE HANDS OF THE APPELLA NT IS CONFIRMED. ACCORDINGLY, GROUND NO.1 OF THE APPEAL IS DISMISSED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E CAME IN SECOND APPEAL BEFORE US. SHRI K.K.GOSWAMI, LD. AUTHORIZED REPRESENTATIVE APP EARING ON BEHALF OF ASSESSEE AND SHRI RAJAT KUMAR KUREEL, LD. DEPARTMEN TAL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. ITA NO.190/KOL/2013 A.Y.2009 -10 PRADEEP KR. MALHOTRA V. ITO WD-27(4), KOL. PAGE 3 5. BEFORE US LD. AR SUBMITTED WRITTEN SUBMISSION WH ICH IS RUNNING AT PAGES 1 TO 5 AND STATED THAT THE PROPERTY EXCLUSIVE LY BELONGED TO HUF AND NOT TO ASSESSEE. THE LD. AR DREW OUR ATTENTION AT PAGE 2 OF THE PROPERTY DOCUMENT WHERE IT IS CLEARLY MENTIONED THAT THIS SA LE DEED IS EXECUTED AT NEW DELHI ON 07.08.2008 IN THE NAME OF M/S P.K.MALH OTRA AND OTHERS HUF. THE ASSESSEE SHRI P.K.MALHORTHA S/O LT. F.C.MALHOTR A RESIDENT OF 465 BLOCK, NEW ALIPORE, KOLKATA IS ACTING AS KARTA OF THE AFOR ESAID HUF. IN ADDITION TO ABOVE, LD. AR ALSO SUBMITTED COPY OF ASSESSMENT ORD ER IN CASE OF SHRI P.K.MALHOTRA AND OTHER HUF FOR THE AY 2009-10 WHERE THE TRANSACTIONS OF THE SALE AND PURCHASE OF THE IMPUGNED PROPERTY WAS DULY ASSESSED IN THE HANDS OF HUF. FURTHER LD AR SUBMITTED THAT THE PROPERTY R EGISTRY DOCUMENTS WERE NOT SUBMITTED BEFORE THE AUTHORITIES BELOW AS THESE PAPERS WERE PLACED IN THE OFFICE OF M/S SUMMOSON EXPORT (P) LTD., WHICH IS UN DER LIQUIDATION AND UNDER THE CONTROL OF OFFICIAL LIQUIDATOR. THE ASSESSEE IS THE DIRECTOR OF THE SAID COMPANY. HE FURTHER SUBMITTED THAT AO FAILED TO COL LECT THE REQUIRED INFORMATION BY EXERCISING HIS POWER U/S 133(6) OF T HE ACT AND REQUESTED THE BENCH TO REVERSE THE ORDERS OF AUTHORITIES BELOW. O N THE OTHER HAND, LD. DR VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES BELO W. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT AO HAS MADE THE A SSESSMENT IN THE HANDS OF ASSESSEE AS STCG ON ACCOUNT OF SALE OF PROPERTY BECAUSE ASSESSEE FAILED TO SUBMIT THE NECESSARY EVIDENCE AT THE TIME OF ASS ESSMENT PROCEEDINGS. THE LD. CIT(A) ALSO CONFIRMED THE ACTION OF AO. NOW THE QUESTION BEFORE US ARISES AS TO WHETHER THE CAPITAL GAIN ARISING FROM THE SAL E OF THE PROPERTY REQUIRES TO BE TAXED IN THE HANDS OF ASSESSEE OR IN THE HANDS O F HUF. FROM ARGUMENTS ADVANCED BY LD. AR WE FIND THAT SAME INCOME HAS ALR EADY BEEN TAXED BY THE ASSESSING OFFICER IN THE HANDS OF HUF BY THE OFFICE OF CIRCLE 28, KOLKATA DATED 12.03.2015. IT IS A WELL ESTABLISHED LAW THAT THE S AME INCOME CANNOT BE TAXED TWICE. FROM THE FACTS OF THE CASE, WE FIND THAT THE PROPERTY BELONGS TO HUF AND NOT TO THE ASSESSEE. IT HAS BEEN TAXED IN THE H ANDS OF ASSESSEE BECAUSE ITA NO.190/KOL/2013 A.Y.2009 -10 PRADEEP KR. MALHOTRA V. ITO WD-27(4), KOL. PAGE 4 ASSESSEE FAILED TO FURNISH THE NECESSARY DOCUMENTS AT THE TIME OF ASSESSMENT. THE REASON EXPLAINED FOR NON-FURNISHING NECESSARY EVIDENCE WAS THAT ASSESSEE WAS A DIRECTOR IN A COMPANY WHICH WAS UNDER LIQUIDATION AND UNDER THE CONTROL OF OFFICIAL LIQUIDATOR. WE AL SO FIND THAT IN THE INSTANT CASE AO WHILE FRAMING THE ASSESSMENT AND BEFORE REJECTIN G THE PLEA OF ASSESSEE SHOULD HAVE CROSSED VERIFIED THE TRANSACTIONS FROM THE REGISTRY OFFICE BY ISSUING NOTICE U/S. 133(6) OF THE ACT. IN THIS VIEW OF THE MATTER, WE FIND THAT IMPUGNED PROPERTY WAS OWNED BY HUF AND NOT BY ASSES SEE, THEREFORE, IT SHOULD BE TAXED IN THE HANDS OF HUF AND SAME AS ALS O BEEN TAXED CORRECTLY. WE ALSO FIND THAT LD. DR HAS NOT BROUGHT ANYTHING O N RECORD TO CONTROVERT THE ARGUMENT ADVANCED BY LD. AR OF ASSESSEE. AFTER CONS IDERING ALL THE FACTS OF THE CASE, WE ARE INCLINED TO REVERSE THE ORDER OF A UTHORITIES BELOW. THIS GROUND OF ASSESSEE IS ALLOWED. 7. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 27/ 05/2016 SD/- SD/- (S.S.VISHWANETHRA RAVI) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 27 / 05 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-PRADEEP KR. MALHOTRA, 465, BLOCK-K, NEW ALIPORE, KOLKATA-53 2. /RESPONDENT- ITO, WARD-27(4), KOLKATA 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,