ITO, Meerut V. Shri Krishan Swaroop Gupta, Meerut

ITA 2855/DEL/2011

• Counselvise Citation: 285520114 RSA 2011
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-08-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 02-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: V K GOEL
• Keywords: Capital asset; Fair market value
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.D. RANJAN ITA NO.2855/DEL/11 ASSTT. YR: 2003-04 INCOME-TAX OFFICER, VS. KRISHAN SWAROOP GUPTA, WARD-1(3), MEERUT. 30, VIKAS VIHAR, MOHANPURI, MEERUT. PAN/GIR NO. ALMPG4317P ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : MS. Y. KAKKAR DR RESPONDENT BY: SHRI V.K. GOEL ADV. O R D E R PER R.P. TOLANI, J.M : THIS IS REVENUES APPEAL AGAINST CIT(A)S ORDER DAT ED 23-3-2011 RELATING TO A.Y. 2003-04. SOLE GROUND RAISED IS AS UNDER: WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT(APPEALS) HAS ERRED IN LAW AND IN FACTS IN DELET ING THE ADDITION MADE BY THE AO ON PROTECTIVE BASIS IN SPIT E OF THE FACT THAT THE ASSESSEE HAD CLAIMED THAT SMT. SUSHMA GUPT A WAS NEVER OWNER OF THE LAND NOR SHE HAD TRANSFERRED ANY CAPITAL ASSETS. 2. LEARNED DR RELIED ON THE ORDER OF AO. 3. LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND CONTENDS THAT THE ASSESSMENT WAS COMPLETED ON 24-12-2007 U/S 147/143( 3) OF THE I.T. ACT ON PROTECTIVE BASIS WHEREAS SUBSTANTIVE ADDITION WAS M ADE IN THE CASE OF SMT. SUSHMA GUPTA 202, MOHAN PURI, MEERUT. THE ASSESSMEN T WAS APPEALED AGAINST BEFORE CIUT(A), MEERUT WHICH WAS PARTLY ALL OWED. DEPARTMENT FILED 2 SECOND APPEAL BEFORE ITAT AND SMT. SUSHMA GUPTA FIL ED CROSS OBJECTION. THE ITAT DECIDED THE APPEAL AND CROSS OBJECTION VID E ORDER DATED 27-8- 2010, HOLDING THAT SMT. SUSHMA GUPTA WAS THE OWNER OF THE PROPERTY WHICH IS SOLD ON POWER OF ATTORNEY BASIS BY SHRI KRISHAN SWAROOP GUPTA IS NOT ACTUAL SELLER OF THE PROPERTY BY FOLLOWING OBSERVAT ION: 35. KEEPING IN VIEW THE ABOVE DISCUSSION, WE HOLD THAT SECTION 50-C IS APPLICABLE TO THE ASSESSEES CASE. 36. ANOTHER CONTENTION OF THE ASSESSEE IS THAT THE GAIN ARISING OUT OF THE SAID TRANSACTION SHOULD BE ASSESSED AS B USINESS INCOME. WE FIND NO SUBSTANCE IN SUCH CONTENTION AS IT HAS NEVER BEEN SHOWN THAT THE SALE AND PURCHASE OF THE PROPER TY CARRIED ON BY THE ASSESSEE WAS IN THE NATURE OF BUSINESS. T HEREFORE, WE HOLD THAT THE SAID TRANSACTION IS LIABLE FOR CAPITA L GAIN. 37. WE HAVE HELD THAT SECTION 50-C IS APPLICABLE TO THE SUBJECT TRANSACTION AND IT HAS TO BE ASSESSED UNDER THE HEAD CAPITAL GAIN. HOWEVER, KEEPING IN VIEW THAT ASSES SEE AHS AGITATED SUCH ADDITION, WE ARE OF THE OPINION THAT THE ASSESSEE MAY BE PROVIDED WITH THE OPPORTUNITY TO SHOW THAT T HE VALUE ADOPTED OR ASSESSED BY STAMP VALUATION AUTHORITY EX CEEDED THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE O F THE TRANSFER. THEREFORE, TO PROVIDE WITH SUCH AN OPPORTUNITY WE R ESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER AND IF THE A SSESSEE RAISE OBJECTION TO THIS EXTENT, THEN, REEFER THE ISSUE TO THE VALUATION OFFICER AND AFTER ADOPTING SUCH PROCEDURE HE WILL A SSESS HIS CAPITAL GAIN IN ACCORDANCE WITH THE LAW. WE HOLD AC CORDINGLY. 38. ORDER OF THE CIT(A) BEING AS PER DIRECTION GIVE N BY ITAT IN THE CASE OF SMT. SUSHMA GUPTA IS TO BE UPHE LD. IT IS FURTHER SUBMITTED THAT THE DEPARTMENT HAS NOT FILED ANY APPEAL BEFORE HONBLE HIGH COURT, HENCE ORDER OF THE ITAT IN THE CASE OF SMT. SUSHMA GUPTA BECOMES FINAL. THEREFORE, APPE AL FILED BY THE REVENUE DESERVES TO BE DISMISSED IN VIEW OF ITAT ORDER IN THE CASE OF SMT. SUSHMA GUPTA. 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. SINCE THE ISSUE ABOUT ASSESSAB ILITY OF CAPITAL GAINS IN THE 3 HANDS OF SMT. SUSHMA GUPTA, DAUGHTER-IN-LAW OF THE ASSESSEE HAS ATTAINED FINALITY, THEREFORE, THE DELETION OF PROTECTIVE ADD ITION IN THE HANDS OF THE ASSESSEE IS PERFECTLY JUSTIFIED. WE UPHOLD THE ORDE R OF CIT(A) AND DISMISS THE REVENUES APPEAL. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 12-08-2011. SD/- SD/- ( K.D. RANJAN ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12-08-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 4