ITO, CHITTORGARH V. Shri Satya Narayan Ojha, CHITTORGARH

ITA 264/JODH/2013

• Counselvise Citation: 26423314 RSA 2013
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R H GOHEL
• Assessee Lawyers: VIKAS BALIA
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Competent authority
• Section: 50C; 54F; 54; 139

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.264/JODH/2013 (A.Y. 2008-09) ITO, WARD-3, VS. SHRI SATYA NARAYAN OJHA, KILA ROAD, CHITTORGARH. BASSI, CHITTORGARH. PAN NO. AABPO 9674 M (APPELLANT) (RESPONDENT) ITA NO.265/JODH/2013 (A.Y. 2008-09) ITO, WARD-3, VS. SHRI SATYANARAYAN MANGILAL KILA ROAD, CHITTORGARH. OJHA, HUF, A-32, MEERA NAGAR, CHITTORGARH. PAN NO. AASHS 4744 H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIKAS BALIA DEPARTMENT BY : SHRI R.H. GOHEL - D.R. DATE OF HEARING : 30/10/2013. DATE OF PRONOUNCEMENT : 31/10/2013. O R D E R PER N.K.SAINI, A.M THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED A GAINST THE SEPARATE ORDERS EACH DATED 05/02/2013 OF LD. CIT (A ), UDAIPUR. SINCE, 2 THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND THE APPEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE WILL DEAL WITH ITA NO. 265/JODH/2013 . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF T HE CASE, THE LEARNED CIT(A) HAS ERRED IN 1. HOLDING THE CLAIM OF ASSESSEE OF STATUS AS HUF J USTIFIED AND IN DIRECTING THE AO TO ASSESS THE LONG TERM CAPITAL GA IN ON SUBSTANTIVE BASIS IN THE HANDS OF ASSESSEE HUF IN RESPECT OF CO MPENSATION AMOUNTING TO RS. 33,36,774/-. 2. DIRECTING THE AO TO RECOMPUTED THE LONG TERM CAP ITAL GAIN OF THE ANCESTRAL LAND OF THE ASSESSEE WHICH WAS ACQUIRED B Y THE NATIONAL HIGHWAY AUTHORITY OF INDIA AND ALLOW THE COST INDEX ATION FOR 1981. 3. DIRECTING THE AO TO ALLOW THE CLAIM OF ASSESSEE U/S 54F OF THE I.T. ACT. THAT THE APPELLANT CRAVES TO ADD, AMEND, ALTER, DEL ETE OR MODIFY ANY OR ALL THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. THE FIRST ISSUE VIDE GROUND NO.1 RELATES TO THE L ONG TERM CAPITAL GAIN IN RESPECT OF COMPENSATION AMOUNTING TO RS. 33 ,36,774/-. 4. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 31/07/2009 DECLARING AN INCOME OF RS. 7,12,560/- FROM LONG TERM CAPITAL GAIN. THE ASSESSEE HAD SHOW N RECEIPT OF RS. 33,66,774/- ON ACCOUNT OF ACQUISITION OF ITS LAND B Y THE NATIONAL HIGHWAY AUTHORITY OF INDIA. THE LAND OF THE ASSESSEE WAS A NCESTRAL LAND AND AFTER 3 TAKING INDEXATION COST OF 1981, THE ASSESSEE HAD SH OWN LONG TERM CAPITAL GAIN AT RS. 7,12,560/-. DURING THE COURSE OF ASSES SMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO SUBMIT ALL THE DETAILS RELATING TO THE CLAIM OF STATUS OF HUF. THE ASSESSEE VIDE LETT ER DATED 11/11/2010 SUBMITTED AS UNDER:- (I) THE SAID HUF WAS CREATED ON 01/04/2000 BY WAY OF INHERITANCE. (II) NAMES OF ALL THE MEMBERS OF HUF AND RELATIONSH IP WITH KARTA ARE MENTIONED AS UNDER:- A) SHRI SATYA NARAYAN OJHA VILLAGE BASSI KART A OF HUF B) SMT. SHARDA DEVI OJHA VILLAGE BASSI WIFE ( MEMBER) C) SHRI DEEPAK OJHA VILLAGE BASSI SON (MEMBE R) (II) ASSETS AND LIABILITY OF HUF:- THE STATEMENT SH OWING ASSETS AND LIABILITY OF HUF WOULD BE SUBMITTED SOON. THE ASSESSING OFFICER DID NOT ACCEPT THE REPLY OF T HE ASSESSEE BY OBSERVING THAT THE HUF WAS NOT IN EXISTENCE AND WAS AN AFTERTHOUGHT TO REDUCE THE TAX LIABILITY AND THAT NO DOCUMENTARY EV IDENCE FOR CREATING OF HUF WAS SUBMITTED. HE ALSO OBSERVED THAT SHRI SATY A NARAYAN (INDIVIDUAL) HAD INHERITED THE LAND IN INDIVIDUAL CAPACITY. ACC ORDINGLY, THE ASSESSING OFFICER ASSESSED THE CAPITAL GAIN ON THE SALE/ACQUI SITION OF THE PROPERTY UNDER QUESTION SUBSTANTIVELY IN THE HANDS OF SHRI S ATYA NARAYAN OJHA AND ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE HU F. THE ASSESSING OFFICER DID NOT ALLOW THE INDEXATION COST OF 1981 T AKEN BY THE ASSESSEE ON 4 THE PLEA THAT THE SALE PRICE OF THE LAND IN THE SAM E AREA WAS DIFFERENT AND HE FURTHER MADE THE BASE OF THE SALE PRICE OF O NE SHRI MANGI LAL GUJAR, WHO HAD SOLD HIS LAND AT RS. 4,872/- PER BIG HA ON 30/01/1981. ACCORDINGLY, HE TOOK THE SALE PRICE AT RS. 23,142/- PER HECTARE FOR THE LAND ACQUIRED BY THE NATIONAL AUTHORITY OF INDIA AN D CALCULATED THE TAXABLE LONG TERM CAPITAL GAIN AT RS. 33,19,644/-. THE ASSESSING OFFICER ALSO DID NOT ALLOW THE BENEFIT UNDER SECTION 54F AM OUNTING TO RS. 5,12,557/- FOR CONSTRUCTION OF HOUSE CLAIMED BY THE ASSESSEE BY OBSERVING THAT IT HAD NOT DEPOSITED THE SALE CONSIDERATION IN THE CAPITAL GAIN ACCOUNTS SCHEME BY THE DUE DATE OF FILING OF THE RE TURN UNDER SECTION 139 OF THE ACT. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER T O THE LEARNED CIT(A) AND SUBMITTED THAT THE PROPERTY WAS RECEIVE D BY THE ASSESSEE AFTER THE DEATH OF HIS FATHER, WHICH IS EVIDENT FRO M THE PHOTOCOPY OF JAMABANDI DATED 24/10/2010. IT WAS FURTHER STATED THAT THE LAND WAS PURCHASED BY THE HUF FROM THE SAVINGS OF HUF. IT W AS ALSO STATED THAT THE FLAT ACQUIRED WITH THE FUNDS COMING ONLY FROM H UF INCOME WILL BE HUF PROPERTY. IT WAS CONTENDED THAT THE COMPENSATI ON WAS RECEIVED BY THE ASSESSEE ON 06/06/2007, THEREFORE, THE INDEXATI ON TAKEN BY THE 5 ASSESSEE ON THE BASIS OF DLC RATE FOR THE A.Y. 2004 -05 WAS WRONG. IT WAS FURTHER CONTENDED THAT THE ASSESSEE INVESTED SOME M ONEY FOR CONSTRUCTION OF THE HOUSE, THEREFORE, THE DEDUCTION UNDER SECTION 54F OF THE ACT WAS AVAILABLE TO THE ASSESSEE. THE RELIANC E WAS PLACED ON THE FOLLOWING CASE-LAWS:- 1. CIT VS. SHRINIWAS (2008) CTR 588 2. CIT VS. M.M. JAIN DATED 27/04/1988 (RAJ) 3. ITO VS. THAKUR DAS HARIDAS (2004) XXXVIII TW 28 0 ITAT JODHPUR. 4. SMT. SARIFA BIBI MOHAMMED VS. CIT (114 CTR SC 4 67) 5. KISHORE H GALDIYA VS. ITO (2012) 150 TTJ 444 IT AT MUMBAI. 6. JAGANNATH JUST LODHA VS. ITO (2004) 85 TTJ JODH PUR 177 6 . LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE ASSESSING OFFICER WAS NOT JUSTIFI ED IN OBSERVING THAT THE CLAIM FOR THE STATUS OF THE ASSESSEE AS HUF WAS NOT CORRECT AS THE HUF WAS NOT IN EXISTENCE AND SHRI SATYA NARAYAN OJHA HA D INHERITED THE LAND IN HIS INDIVIDUAL CAPACITY AND NOT ALLOWING THE IND EXATION OF 1981 FOR THE ANCESTRAL PROPERTY SOLD BY THE ASSESSEE. HE FURTHE R OBSERVED THAT THE ASSESSEE HAD FILED ALL THE DOCUMENTARY EVIDENCES IN RESPECT OF PROPERTY OF THE ASSESSEE ACQUIRED BY THE NATIONAL HIGHWAY AU THORITY OF INDIA LIKE COPY OF ORDER DATED 05/06/2007 OF THE COMPETENT OFF ICER (NH) ADDITIONAL COLLECTOR (LAND ACQUISITION) CHITTORGARH, BANK STAT EMENTS, REVENUE 6 RECORDS ETC. BEFORE THE ASSESSING OFFICER, BUT HE H AD NOT TAKEN THOSE DOCUMENTS ON RECORD. LEARNED CIT(A) HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN OBSERVING THAT THE CLAIM OF THE STATUS OF THE ASSES SEE AS HUF WAS NOT CORRECT BECAUSE THE PROPERTY IN QUESTION WAS AN ANC ESTRAL ONE, WHICH HAD BEEN INHERITED BY THE HUF I.E. SHRI SATYA NARAYAN O JHA (HUF), THE ASSESSEE. HE FURTHER OBSERVED THAT AS PER THE REVE NUE RECORDS, THE SAID PROPERTY HAD BEEN TRANSFERRED ON 28/06/2000 IN THE NAME OF SHRI SATYA NARAYAN OJHA THE KARTA AND SMT. PREM BAI AND SMT. G ANGA BAI, THE MEMBER OF THE HUF AND THIS FACT WAS ALSO MENTIONED IN THE ORDER DATED 05/06/2007 PASSED BY THE COMPETENT OFFICER (NH) ADD ITIONAL COLLECTOR (LAND ACQUISITION), WHEREIN THE NAME OF THE PERSONS , WHOSE PROPERTY WAS ACQUIRED WAS WRITTEN AS SHRI SATYA NARAYAN S/O SHRI MANGI LAL; SMT. PREM BAI D/O SHRI MANGI LAL AND SMT. GANGA BAI W/O SHRI MANGI LAL. LEARNED CIT(A) CATEGORICALLY STATED THAT SHRI SATYA NARAYAN OJHA WAS THE KARTA WHILE SMT. PREM BAI AND SMT. GANGA BAI WERE MEMBERS OF THE HUF. HE ALSO OBSERVED THAT NHAI HAD ISSUED COMPENSATION AMO UNT FOR ACQUISITION OF PROPERTY IN THE NAME OF THE SAID PERSONS AND THA T THE HUF FILED ITS RETURN OF INCOME ON 31/07/2009 AND ON ACQUISITION O F THE PROPERTY HAD SHOWN TAXABLE CAPITAL GAIN OF RS. 7,12,560/-. THE LEARNED CIT(A) RELIED 7 ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. M.M. JAIN (SUPRA) WHEREIN IT HAS BEEN HELD AS UNDER:- SELF ACQUIRED PROPERTY OF A FATHER DYING INTESTATE AND INHERITED AFTER COMING INTO FORCE OF HINDU SUCCESSION ACT, 1956 IS TO BE TREATED AS ANCESTRAL PROPERTY IN THE HANDS OF SON. LEARNED CIT(A), ACCORDINGLY, DIRECTED THE ASSESSIN G OFFICER TO ASSESS THE LONG TERM CAPITAL GAIN IN RESPECT OF COMPENSATI ON AMOUNTING TO RS. 33,66,774/- RECEIVED BY THE ASSESSEE ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE. THE LEARNED CIT(A) ALSO OBSERVED THA T THE ASSESSING OFFICER WAS NOT JUSTIFIED IN COMPARING THE SALE PRICE OF TH E LAND ACQUIRED BY THE NATIONAL HIGHWAY AUTHORITY OF INDIA WITH THE DIFFER ENT SALE FOR DIFFERENT LAND AND IN NOT ALLOWING THE ASSESSEE THE INDEXATIO N OF 1981 FOR COST OF THE LAND. THE LEARNED CIT(A) WAS OF THE VIEW THAT THE ASSESSING OFFICER CANNOT TAKE SALE PRICE OF THE LAND TRANSACTION AT H IS OWN BECAUSE THERE IS A RELEVANT PROVISION IN SECTION 50C OF THE ACT WHER E THE ASSESSING OFFICER CAN TAKE THE SALE PRICE EQUAL TO THE REGISTERED SAL E DEED FOR THE SALE OF ANY LAND, IF IN HIS OPINION ANY ASSESSEE HAS SHOWN LESS SALE CONSIDERATION IN COMPUTATION OF ANY LONG TERM CAPITAL GAIN. HE T HEREFORE, DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE LONG TERM CAPITA L GAIN OF THE ASSESSEE, WHICH WAS ACQUIRED BY THE NATIONAL HIGH WAY AUTHORI TY OF INDIA AND 8 ACCORDINGLY ALLOWED THE COST INDEXATION FOR 1981. NOW, THE DEPARTMENT IS IN APPEAL. 7. LEARNED D.R. SUPPORTED THE ORDER OF THE ASSESSING O FFICER AND REITERATED THE OBSERVATIONS MADE IN THE ASSESSMENT ORDER DATED 20/12/2010. 8. IN HIS RIVAL SUBMISSIONS, LEARNED COUNSEL FOR THE A SSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW A ND STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LEARNED CIT(A). 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PART IES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE, IT APPEARS THAT LATE SHRI MANGILAL WAS THE OW NER OF THE LAND, WHICH WAS ANCESTRAL AND ON HIS DEATH, IT WAS INHERITED UN DER THE HINDU SUCCESSION ACT BY SATYA NARAYAN KARTA OF SATYA NARA YAN MANGILAL (HUF), HIS MOTHER SMT. GANGA BAI AND HIS SISTER SMT. PREM BAI. SINCE, THE LAND IN QUESTION WAS ANCESTRAL AND IT PASSED TO THE MEMB ERS OF THE HUF, SO THE STATUS OF THE ASSESSEE WAS HUF, THEREFORE, THE COMPENSATION RECEIVED IN LIEU OF THE ACQUISITION SAID LAND AMOUNTING TO R S. 33,66,774/- FROM NATIONAL HIGHWAY AUTHORITY OF INDIA WAS TO BE CONSI DERED IN THE HANDS OF 9 THE ASSESSEE (HUF) ON SUBSTANTIVE BASIS AS THE LAND WAS ANCESTRAL. THEREFORE, THE INDEXATION COST WAS TO BE TAKEN FOR 1981 AS THE LAND WAS IN POSSESSION OF SHRI MANGILAL PRIOR TO 1981 AND IT ONLY COME IN POSSESSION OF THE ASSESSEE AFTER HIS DEATH. IN OUR OPINION, T HE LEARNED CIT(A) WAS JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO CON SIDER THE LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE (HUF) AND ALLOW THE COST INDEXATION BY CONSIDERING THE INDEXATION OF 1981. ACCORDINGLY, WE DO NOT SEE ANY MERIT IN THE GROUND NOS.. 1 & 2 OF THIS APP EAL. 10. G ROUND NO.3 RELATES TO THE CLAIM OF THE ASSESSEE UND ER SECTION 54F OF THE ACT. 11. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT THE ASSESSEE CLAIMED A SUM OF RS. 1,00,000/- AS DEDUCTION UNDER SECTION 54 F OF THE ACT ON ACCOUNT OF CONSTRUCTION OF FLAT AND SINCE THE RETUR N OF INCOME WAS NOT FILED BY THE ASSESSEE TILL THE DUE DATE OF FILING O F RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT AND THE BALANCE AMOUNT OF CAPITAL GAIN WAS NOT DEPOSITED IN CAPITAL GAIN ACCOUNTS SCHEME. THE ASS ESSING OFFICER DID NOT ALLOW THE CLAIM OF THE ASSESSEE UNDER SECTION 54F O F THE ACT. 12. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A), WHO DIRECTED THE ASSESSING OFFICER TO ALLOW THE CLAIM BY OBSERVING 10 THAT THE CLAIM OF EXEMPTION CANNOT BE DENIED PARTIC ULARLY WHEN THE AMOUNT HAD BEEN ACTUALLY UTILIZED FOR THE CONSTRUCT ION OF RESIDENTIAL HOUSE AND NOT FOR ANY OTHER PURPOSE. NOW, THE DEPA RTMENT IS IN APPEAL. 13. DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR T HE ASSESSEE AT THE VERY OUTSET STATED THAT THIS ISSUE IS COVERED B Y THE EARLIER DECISION OF THIS BENCH OF THE TRIBUNAL, DATED 28/06/2013 FOR TH E A.Y. 2008-09 IN THE CASE OF ITO, WARD-2, CHITTORGARH VS. SMT. PREM BAI OJHA . ON THE OTHER HAND, LEARNED D.R., ALTHOUGH, SUPPORTED THE ORDER O F THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THE AFORESAID CON TENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 14. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTI ES AND THE MATERIAL AVAILABLE ON RECORD, IT IS NOTICED THAT TH E ISSUE IN QUESTION IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAI NST THE REVENUE VIDE AFORESAID REFERRED TO ORDER DATED 28/06/2013, WHERE IN THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 2.3, WHICH READS A S UNDER:- 2.3 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREF ULLY CIRCUMSPECTED THE ENTIRE RECORD. BOTH, PARTIES HAVE REITERATED TO THEIR STAND TAKEN BEFORE THE LD. CIT(A). WE HAVE FOUND I T FOR A FACT THAT NHA ACQUIRED ASSESSEE'S PIECE OF LAND FOR A CONSIDE RATION OF RS. 28,97,125/-. IN FACT THIS ASPECT OF LAND ACQUISITIO N THROUGH THE COMPETENT AUTHORITY ADDL. COLLECTOR (LAND ACQUISITI ON) ACQUIRED THROUGH A SPEAKING ORDER DATED 05/06/2007. THE ASS ESSEE FILED A 11 COPY OF THIS ORDER ALONGWITH HER BANK STATEMENT ETC . BEFORE THE A.O. THEN HOW THE A.O. COULD PLACE HIS RELIANCE ON A PRI VATE SALE INSTANCE WHEN IT IS PITTED AGAINST THE LAND ACQUISITION BY A GOVERNMENT AUTHORITY. SECONDLY, THE SITUATIONS OF BOTH THE LAN DS, ONE OF THE ASSESSEE IN QUESTION THE SECOND OF SHRI MANGI LAL G UJAR. THE A.O. CANNOT CHERRY PICK INSTANCE OF SALES CONVENIENT TO HIS SUBJECTIVE OPINION AND PARTICULARLY WHEN THE ACQUISITION COST IS FIXED BY ANOTHER GOVERNMENT AGENCY. IT IS ALSO FOUND FOR A FACT THAT THE ASSESSEE HAD WITHDRAWN HER SHARE IN THE TOTAL SALE CONSIDERATION ALONGWITH OTHER CO-OWNERS OF THE LAND ACQUIRED, ON 06/08/2007 FROM THE JOINT SAVING ACCOUNT IN THE PNB CHITTORGARH AND THE INVESTMENT H AD BEEN MADE IN HER HOUSE BEFORE 31.07.2008, WHICH WAS THE DUE DATE OF FILING OF THE RETURN OF INCOME [ROI] U/S 139 OF THE ACT. THUS, TH ERE COULD BE NO OCCASION TO DEPOSIT SALE CONSIDERATION IN ANY CAPIT AL GAINS SAVING SCHEME, AS HAS BEEN SUGGESTED BY THE A.O. OTHERWISE ALSO ON SMALL PEDANTIC REASONS THE VALUABLE RIGHT OF ANY ASSESSEE CANNOT BE DEFEATED. THE OBJECT OF THE PROVISIONS CONJOINTLY H AS TO BE EXAMINED AND HAS TO BE FOLLOWED AND APPLIED. IN OUR CONSIDE RED OPINION THE FINDING OF LD. CIT(A) ARE QUITE JUSTIFIED AND DESER VE TO BE UPHELD. 15. SO, BY RESPECTFULLY FOLLOWING THE AFORESAID REFERRE D TO ORDER DATED 28/06/2013 IN THE CASE OF ITO, WARD-2, CHITTORGARH VS. SMT. PREM BAI OJHA (SUPRA) IN ITA NO. 81/JODH/2013 FOR THE A.Y. 2008-09, WE DO NOT SEE ANY MERIT IN THIS GROUND OF THE APPEAL. 16. NOW, WE WILL DEAL WITH I.T.A.NO. 264/JODH/2013 . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL:- ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN 1. DIRECTING THE AO TO ASSESS THE LONG TERM CAPITAL GA IN ON SUBSTANTIVE BASIS IN THE HANDS OF ASSESSEE. HUF IN RESPECT OF C OMPENSATION 12 AMOUNTING TO RS. 33,36,774/- DESPITE THE FACT THAT THE ASSESSEE HAS BEEN SHOWING HIMSELF AS OWNER OF LAND. 2. DELETING THE ADDITION OF RS. 33,28,827/- MADE BY TH E AO ON ACCOUNT OF LONG TERM CAPITAL GAIN. THAT THE APPELLANT CRAVES TO ADD, AMEND, ALTER, DEL ETE OR MODIFY ANY OR ALL THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME O F HEARING. 17. FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE ONL Y GRIEVANCE OF THE DEPARTMENT IS THAT THE LONG TERM CAPITAL GAIN A MOUNTING TO RS. 33,36,774/- IS TO BE ASSESSED IN THE HANDS OF THE A SSESSEE (INDIVIDUAL) ON SUBSTANTIVE BASIS AND NOT IN THE HANDS OF HUF. THI S ISSUE, WE HAVE ALREADY ADJUDICATED IN THE FORMER PART OF THIS ORDE R WHILE DECIDING THE ITA NO. 265/JODH/203 RELATING TO SHRI SATYA NARAYAN MANGILA OJHA (HUF) AND HAVE ALREADY CONFIRMED THE VIEW TAKEN BY THE LE ARNED CIT(A) THAT THE AFORESAID COMPENSATION IS TO BE CONSIDERED IN THE H ANDS OF THE HUF ON SUBSTANTIVE BASIS. WE, THEREFORE, DO NOT SEE ANY M ERIT IN THIS APPEAL OF THE DEPARTMENT. 18. IN THE RESULT, BOTH THE APPEALS OF THE DEPARTMENT A RE DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 31 ST OCTOBER, 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31 ST OCTOBER , 2013. 13 VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.