The ACIT, Circle-2(2), Baroda V. Smt. Rekha Aresh Prajapati, Baroda

ITA 2637/AHD/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5866 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 17-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 11-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ITA. NO: 2637/AHD/2013 (ASSESSMENT YEAR: 2009-10) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-2(2), BARODA V/S SMT. REKHA ARESH PRAJAPATI 301, VRAJ FLATS 4- B, SHANTINIKETAN SOCIETY NR. VIMS HOSPITAL, AKOTA, BARODA (APPELLANT) (RESPONDENT) PAN: ASBPP2994D APPELLANT BY : SHRI O.P. SHARMA, CIT/DR RESPONDENT BY : SHRI DEEPAK SHAH, A.R. ( )/ ORDER DATE OF HEARING : 05 -03-201 9 DATE OF PRONOUNCEMENT : 29 S-04-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD. CIT(A)-II, BARODA DATED 14.06.2013 PERTAINING TO A. Y. 2009-10 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 2637 /AHD/2013 . A.Y. 2009-10 2 L(A). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(APPEALS) ERRED IN HOLDING THAT THE INCOME OF TH E ASSESSEE WAS RS.45,00,000/- AND NOT RS,- 4,66,81,453/- RELYING ON A SELF-SERVIN G DOCUMENT FURNISH BY THE ASSESSEE, AND ALSO ERRED IN NOT APPRECIATING THAT A GREEMENT BETWEEN ASSESSEE AND HER HUSBAND WAS A COLOURFUL DEVICE INTENDED TO EVADE TRUE AND JUST TAX. L(B). THE LD. CIT (A) HAS ERRED IN NOT CONSIDERING THE WELL ESTABLISHED LAW THAT INCOME MUST ANY BE TAXED IN THE HANDS IRRESPECTIVE OF THE FACT THAT INCOME HAS UNJUSTLY OFFERED IN SOMEBODY ELSES HAND. 2. FACTS OF THE CASE THAT DURING THE YEAR UNDER CONSID ERATION, ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAIN OF RS. 18,02,763/-. AND ON VERIFICATION OF THE DETAILS FILED, IT WAS NOTICED THAT ASSESSEE HAS PURCHASED LAND AMOUNTING TO 19,734 SQ.MTR FOR RS. 18,37,274/-. AND ASSESSEE FURTHER ST ATED THAT SHE HAD MADE DEVELOPMENT AGREEMENT WITH HER HUSBAND SHRI ARESHBH AI R. PRAJAPATI TO DEVELOP THE LAND, CONSTRUCT AND SELL THE PROPERTY. IN CONSIDERATION OF THIS, SHE WAS TO RECEIVE RS. 45,00,000/- FOR ALL THE LANDS. O UT OF 19734 SQ.MTR OF LAND, SHRI ARESHBHAI PRAJAPAT HAD SOLD 13354 SQ. MTR OF L AND AND THE PROFIT OF RS. 18,02,763/- AS PROFIT WAS OFFERED FOR TAXATION. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS BROUGHT TO THE NOTICE OF THE LD. A.O. THAT M/S. NEELKANTH ASSOCIATES HAS DUL Y ACKNOWLEDGED ENTIRE SALE CONSIDERATION OF RS. 4,66,81,453/- IN ITS PROFIT & LOSS ACCOUNT AND AFTER CLAIMING EXPENSE OF RS. 3,89,41,064/- HAD SHOWN NET PROFIT AT RS. 77,42,538/- . THIS FACT HAS BEEN INCORPORATED IN THE ASSESSMENT O RDER ITSELF IN PARA 5.2, WHERE LD. A.O. HAS RAISED DOUBTS OVER THE GENUINENESS OF THE WAIVER RIGHT CHARGES AMOUNTING TO RS. 3,89,41,064/- IN THE BOOKS OF M/S. NEELKANTH ASSOCIATES. ITA NO. 2637 /AHD/2013 . A.Y. 2009-10 3 4. BEFORE THE LD. CIT(A), ASSESSEE SUBMITTED COPY OF T HE ASSESSMENT ORDER PASSED BY THE ACIT CIRCLE-2(1), BARODA IN CASE OF THE HUSB AND OF THE APPELLANT NAMELY SHRI ARESH R. PRAJAPATI PROP. M/S. NEELKANTH ASSOCI ATES. THIS ORDER WAS PASSED ON 26.03.2013 AND THAT IS SUBSEQUENT TO THE IMPUGNED ASSESSMENT ORDER DATED 28.11.2011. AND FROM THE RECORD, IT WAS FOUND THAT LD. A.O. OF SHRI ARESH R. PRAJAPATI HAS SPECIFICALLY ASKED TO FURNIS H FULL DETAILS OF VARIOUS EXPENSES CLAIMED BY HIM IN THE PROFIT AND LOSS ACCO UNT. THE SAME WERE FURNISHED VIDE LETTER DATED 20.03.2013 ALONG WITH A LIST OF 67 PERSONS TO WHOM WAIVER RIGHT CHARGES AMOUNTING TO RS. 3,12,91,865/- WERE PAID. THUS, IT CANNOT BE INFERRED THAT APPELLANT HAS DIVERTED THE SALE CONSIDERATION INTO THE HANDS OF HER HUSBAND SHRI ARESH R. PRAJAPATI AND TH EREBY TRIED TO AVOID THE TAXES. 5. AS WE CAN NOTICE, THE TAX HAVE BEEN DULY PAID BY HE R HUSBAND ALL THE DETAILS HAVE BEEN GIVEN TO THE ASSESSING OFFICER OF HER HUS BAND. THEREFORE ENTIRE SALE CONSIDERATION OF RS. 4,66,81,453/- IN THE HANDS OF APPELLANT CANNOT BE TAXED BECAUSE AS SAME WOULD AMOUNT TO DOUBLE TAXATION WHI CH IS NOT PERMISSIBLE IN THE EYES OF LAW. 6. IN THE CASE OF RUSTOM SPINNERS LTD. VS. CIT [1992] 198 ITR 351 (GUJ.) WHEREIN HONBLE HIGH COURT HAS HELD IN CASE OF AN A SSIGNMENT OF A RIGHT IN IMMOVABLE PROPERTY ACQUIRED UNDER A PURCHASE AGREEM ENT. THUS, APPELLANTS SHOWING CAPITAL GAIN ON THE AMOUNT RECEIVED FOR REL INQUISHING HER RIGHT IN THE IMPUGNED PROPERTY IS AS PER THE SETTLED LAW. 7. SINCE TAXES HAVE BEEN FULLY PAID BY HER HUSBAND AND THERE IS NO LOSS TO THE REVENUE. THEREFORE, APPEAL OF THE REVENUE IS DISMIS SED. ITA NO. 2637 /AHD/2013 . A.Y. 2009-10 4 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN OPEN COURT ON 29 - 04- 2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 29/04/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD