Shri Asish Sinha, Kolkata V. ITO, Ward - 2(4), Midnapore, Midnapore

ITA 284/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91950 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 09-08-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 18-02-2011
• Court: TRIBUNAL
• Department Lawyers: DILIP KR MITRA
• Assessee Lawyers: V N PUROHIT
• Section: 54F; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM ] I.T.A NO. 284 /KOL/201 1 ASSESSMENT YEAR : 200 4 - 0 5 SHRI ASISH SINHA VS. INCOME - TAX OFFICER, WD - 2(4), MIDNAPORE (PAN: AKKPS8868C) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 13 .0 5 .2015 DATE OF PRONOUNCEMENT: 21 . 0 5 . 2015 FOR THE APPELLANT: SHRI V. N. PUROHIT, FCA FOR THE RESPONDENT: S HRI DILIP KR. MITRA, JCIT, SR. DR ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER PASSED BY CIT (A) - XXXVI , KOLKATA VIDE NO. 223/CIT(A) - XXXVI/KOL/37/WD.2(4),MID/08 - 09 DATED 03 . 0 2 .201 1 . ASSESSMENT WAS FRAMED BY ITO, WARD - 2 ( 4 ), MIDNAPORE U/S. 144/ 147 OF THE INCOME - TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 4 - 0 5 VIDE HIS ORDER DATED 1 5 . 12 .20 0 6 . 2. AT THE OUTSET, IT IS TO BE MENTIONED THAT THE ASSESSEE HAS FILED REVISED GROUNDS AND LD. DR HAS NOT OBJECTED TO THE SAME. THE FIRST ISSUE RAISED BY ASSESSEE IS THAT THE PROPERTY IS JOINTLY OWNED BY ASSESSEE WITH HIS BROTHER IN THE RATIO OF 50:50. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO.1: 1. THAT FOR THE FACTS AND UNDER THE CIRCUMSTANCES, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ENTIR E LONG TERM CAPITAL GAIN CALCULATED BY HIM AT RS.6,85,641/ - IS TO BE ASSESSED IN THE HAND OF ASSESSEE (APPELLANT) ONLY AND NOT 50% AS THE PROPERTY OWNED JOINTLY EQUALLY WITH BROTHER WHICH IS AN ADMITTED FACT. 3 . WE HAVE HEARD RIVAL SUBMISSIONS AND GONE T HROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE ASSESSEE ALONG WITH HIS BROTHER SHRI ALO SINHA ARE THE CO - OWNERS OF 0.0250 ACRES OF NON - AGRICULTURAL LANDED PROPERTY I.E. 2 ITA NO. 284 /K/201 1 ASISH SINHA AY 200 4 - 0 5 PLOT NO.272, DISTRICT PASCHIM MIDNAPO RE, P.S. KHARAGPUR, VILLAGE BHAWANIPUR. THE SCHEDULE OF THE SOLE LANDED PROPERTY IS AS UNDER: DIST. PASCHIM MEDINIPUR, P.O. KHARAGPUR, ADSR KHARAGPUR UNDER KHARAGPUR MUNICIPALITY, MOUZA BHAWANIPUR, J.L. NO. 192 (93/1 & 99/2), PLOT NO. 272, AREA - 0.025 0 ACRE, NATURE NON - AGRICULTURAL (I.E. BASTU). FROM THE SALE DEED PRODUCED BEFORE US SHRI ALO SINHA AND SHRI ASISH SINHA BOTH SONS OF LATE JUGAL KISHORE SINHA ARE THE CO - OWNERS OF THIS LANDED PROPERTY. THE AO CONSIDERED THE ENTIRE SALE CONSIDERATION AT RS.7,80,000/ - IN THE HANDS OF THE ASSESSEE IGNORING THE 50% SHARE - HOLDING OR OWNERSHIP IN THE NAME OF ASSESSEE S BROTHER SHRI ALO SINHA. EVEN IN THE REMAND REPORT REPRODUCED BY CIT(A) IN HIS ORDER CLEARLY DEPICTS THAT ASSESSEE ALONG WITH SHRI ALO SINHA A RE THE CO - OWNERS OF THIS PROPERTY. THE RELEVANT POINT NO. 1 OF REMAND REPORT OF THE AO READS AS UNDER: 1. THE LANDED PROPERTIES SO TRANSFERRED WERE OWNED BY SRI ALO SINHA AND HIS BROTHER, THE ASSESSEE SRI ASISH SINHA AND SRI ASHIS SINHA TRANSFERRED THE P ROPERTY FOR SELF AND AS CONSTITUTED ATTORNEY FOR ALO SINHA. 4. IN SUCH CIRCUMSTANCES, WHEN THE SAME WAS CONFRONTED, LD. SR. DR FAIRLY CONCEDED THE POSITION. IN SUCH CIRCUMSTANCES, WE DIRECT THE AO TO RE - COMPUTE THE CAPITAL GAIN IN TERM OF OWNERSHIP BY 5 0:50 AMONGST BOTH THE BROTHERS I.E. IN THE HANDS OF THE ASSESSEE ONLY 50% IS TO BE ASSESSED. ACCORDINGLY, THE AO WILL RE - COMPUTE THE LONG TERM CAPITAL GAIN AND ASSESS THE INCOME OF THE ASSESSEE. THIS ISSUE OF ASSESSEE S APPEAL IS ALLOWED. 5. THE SECOND ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE DENIAL OF BENEFIT U/S. 54F OF THE ACT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO.2: 2. THAT LIKEWISE THE CIT(A) HAS FURTHER ERRED IN HOLDING THAT THE ASSESSEE(APPELLANT) IS ENTITLED TO THE BENEFIT U /S. 54F OF THE I. T. ACT, 1961 ONLY TO THE EXTENT OF RS.2,59,615/ - AS AGAINST ASSESSEE S CLAIM OF SUCH DEDUCTION FOR RS.4,50,000/ - . 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE CIT(A) HAS DISC USSED THE FACT THAT THERE REMAINS UNUTILIZED PORTION OF SALE PROCEED OF RS.3,30,000/ - , WHETHER THAT WILL AT ALL BE ATTRIBUTED TO THE ASSESSEE OR HIS BROTHER, THIS NEEDS VERIFICATION. THE AO WILL DECIDE THIS ISSUE AFRESH AFTER CONSIDERING THE FACTS OF THE CASE. IN TERMS OF THE ABOVE, THIS ISSUE IS RESTORED TO THE 3 ITA NO. 284 /K/201 1 ASISH SINHA AY 200 4 - 0 5 FILE OF AO FOR FRESH ADJUDICATION. THIS ISSUE OF ASSESSEE S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . 8 . ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 1 . 0 5 . 2 0 1 5 . S D / - S D / - ( P. K. BANSAL ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 2 1 S T MAY , 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT - SHRI ASISH SINHA , C/O V. N. PUROHIT & CO., CHARTERED ACCOUNTANTS, 32B, GANESH CHANDRA AVENUE, 2ND FLOOR, KOLKATA - 700 013. 2 RESPONDENT ITO, WARD - 2(4) , KOLKATA. 3 . THE CIT (A), KOLKATA 4. 5. THE CIT, KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .