REEMA BHATIA, MUMBAI V. ITO 15(3)(1), MUMBAI

ITA 3213/MUM/2015

• Counselvise Citation: 321319914 RSA 2015
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 27-05-2015
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: JAYESH DADIA

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI . . , BEFORE SHRI R.C.SHARMA , ACCOUNTANT MEMBER ./ ITA NO. 3213 / MUM/20 1 5 ( / ASSESSMENT YEAR : 200 8 - 200 9 ) SMT. REEMA BHATIA, 802, NORITA, HIRANANDANI GARDEN, POWAI, MUMBAI - 400051 VS. ITO - 15(3)(1), MUMBAI ./ ./ PAN/GIR NO. : A JAPB 6066 C ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI JAYESH DADIA /REVENUE BY : SHRI O.P.MEENA / DATE OF HEARING : 2 2 /0 7 / 2015 / DATE OF PRONOUNCEMENT 23 /0 7 /2015 / O R D E R TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT (A), FOR THE ASSESSMENT YEAR 200 8 - 0 9 , IN THE MATTER OF ORDER PASSED U/S. 1 43(3) OF THE INCOME TAX ACT. 2 . IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR ADDITION OF RS. 10.67 LAKHS ON ACCOUNT OF LONG TERM CAPITAL GAIN S . 3. BRIEFLY STA TED FACTS OF THE CASE ARE THE ASSESSEE IS AN INDIVIDUAL. SHE WAS MARRIED TO ONE SHRI ASHISH BHATIA ON 22 - 10 - 2001. HOWEVER, SUBSEQUENTLY THEY DECIDED TO DIVORCE EACH OTHER AND WENT TO THE COURT FOR DECREE OF DIVORCE. THE DECREE OF DIVORCE WAS FINALLY AWARDE D BY FAMILY COURT AT BANDRA, MUMBAI ON 19 - 9 - 2007. BY THE SAID DECREE, RS. 22,20,058/ - WAS TO BE PAID BY HER HUSBAND SHRI ASHISH BHATIA TO THE ASSESSEE AS MAINTENANCE AND ALIMONY FOR HERSELF AND FOR HER MINOR CHILD. ITA NO. 3213 /15 2 IN THIS CONNECTION, IT IS HAS BEEN SUBMITT ED BY THE LD. AR THAT THE SAID ALIMONY WAS PAID OUT OF THE SALE CONSIDERATION OF THE FLAT SITUATED AT 103, 3B, SHIVBHAKTANI MANOR, NEAR S.N.SHETTY SCHOOL, CHANDIWALI, POWAI , MUMBAI - 400072. THE LD. AR ALSO SUBMITT E D THAT THE ALIMONY RECEIVED BY THE ASSESSEE OF RS. 22,20,058/ - IS NOT TAXABLE UNDER THE PROVISIONS OF INCOME TAX ACT . IN SUPPORT OF HIS CLAIM, LD. AR HAS RELIED UPON THE CASES OF PRINCES MAHESHWARI DEVI OF PRATAPGARH, 147 ITR 258 (BOM) AND THE DECISION IN THE CASE OF PREMA G. SANGHAVI VS. ITO 624 OF ITAT MUMBAI CBENCH IN ITA NO.2109/MUM/2011 DATED 13 - 2 - 2015. HOWEVER, THE AO DID NOT AGREE WITH THE ASSESSEES CONTENTION AND TAXED THE ASSESSEES SHARE OF CAPITAL GAIN ON SALE OF HOUSE OWNED BY HER HUSBAND. 4. BY THE IMPUGNED ORDER, THE CIT(A) CONFIRME D THE ADDITION AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 5. IT WAS CONTENDED BY LD. AR THAT THE HOUSE WAS OWNED BY THE HUSBAND, INVESTMENT IN WHICH WAS DULY DISCLOSED IN HIS BALANCE SHEET AS WELL AS IN THE RETURN OF INCOME FILED IN THE EARLIER YEARS. AS PER LD. AR ONLY NAME OF THE ASSESSEE, WHO WAS WIFE OF ASHISH BHATIA WAS INCLUDED AS A SAFETY AND SECURITY PURPOSE, NO INVESTMENT WAS MADE BY THE ASSESSEE IN THE HOUSE. THEREFORE, CAPITAL GAIN TAX IS TO BE LEVIED ONLY ON THE ACTUAL OWNER OF THE HOUSE, WHO HAS INVESTED MONEY IN ACQUISITION OF SUCH HOUSE. AS PER LD. AR, THE ASSESSEE HAS ONLY IN RECEIVED OF ALIMONY ON THE DIVORCE AS PER THE COURTS ORDER. 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. ITA NO. 3213 /15 3 7. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUND THAT THERE WAS DIVORCE PETITION BETWEEN THE ASSESSEE AND HER HUSBAND. THE DECREE OF DIVORCE WAS FINALLY AWARDED BY THE FAMILY COURT AND ASSESSEE WAS TO BE PAID ALIMONY BY HER HUSBAND SHRI ASHISH BHATIA OF R S. 22,20,058/ - FOR HER MAINTENANCE AND FOR HER MINOR CHILD. THE ALIMONY WAS PAID BY HER HUSBAND BY SELLING THE HOUSE OWNED BY HIM, HOWEVER, WITHOUT VERIFYING THE ACTUAL OWNER OF THE HOUSE VIS - - VIS INVESTMENT MADE IN THE HOUSE BY HER HUSBAND, THE AO HAS TAX ED 50% OF CAPITAL GAIN IN THE HANDS OF THE ASSESSEE ALSO . AS PER LD. AR NO INVESTMENT WAS MADE BY THE ASSESSEE IN THE HOUSE PROPERTY. IN THE INTEREST OF JUSTICE, I RESTORE THE MATTER BACK TO THE FILE OF AO TO VERIFY AS TO WHO WAS THE ACTUAL OWNER OF THE HO USE HAVING MADE INVESTMENT IN THE HOUSE. THE AO IS TO VERIFY THE BALANCE SHEET OF SHRI ASHISH BHATIA, WHO WAS EARLIER HUSBAND OF THE ASSESSEE. IF THE ENTIRE INVESTMENT IN THE HOUSE MADE BY ASHISH BHATIA AND MERELY THE NAME OF THE ASSESSEE BEING ADDED IN TH E PURCHASE DEED FOR SAFETY AND SECURITY PURPOSE, THE CAPITAL GAINS ARISING ON THE SALE OF THE SAME IS TO BE TAXED AS PER LAW IN THE HANDS OF THE REAL OWNER. THE AO IS TO DECIDE THE ISSUE AFRESH. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATI STICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 23 /07 / 201 5 . SD/ - ( . . ) ( R.C.SHARMA ) / ACCOUNTANT MEMBER MUMBAI ; DATED 23 /07 /201 5 . . / PKM , . / PS ITA NO. 3213 /15 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMB AI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY/