SMT SANTOSHI WARE, BHILAI(CG) V. THE INCOME TAX OFFICER-2, RAIPUR (CG)

ITA 34/BIL/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4889 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 18-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RITUPARAN NAMDEO
• Assessee Lawyers: S R RAO
• Section: 54B; 234B

Judgement Text

1 ITA NO. 34/BIL/2016 IN THE INCOME TAX APPE LLATE TRIBUNAL RAIPUR BENCH: RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT ME MBER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A .NO. 34/RPR/201 6 (A.Y 2011-12) SANTOSHI WARE BLOCK NO. 10-C, STREET NO.9 SECTOR-4, BHILAI BHILAI(CG) ACBPW4234D (APPELLANT) VS INCOME TAX OFFICER - 2 CENTRAL REVENUE BUILDING, AAYAKAR BHAWAN, CIVIL LINES, RAIPUR RAIPUR (CG) (RESPONDENT) APPELLANT BY SH. S. R. RAO, ADV RESPONDENT BY SH. RITUPARAN NAMDEO, DR ORDER PER SUCHITRA KAMBLE, JM THE PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 29/01/2016 PASSED BY CIT(A)-II, RAIPUR (CG) FOR AS SESSMENT YEAR 2011-12. 2. THE GROUNDS OF APPEAL ARE AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE AM OUNT OF LONG TERM CAPITAL GAIN WORKED OUT BY LD. ASSESSING OFFICER AT RS.40,0 9,162/- AND ASSESSING THE ENTIRE AMOUNT IN THE HANDS OF THE APPELLANT. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN UPHOLDING ASSESSM ENT OF ENTIRE AMOUNT OF LONG TERM CAPITAL GAIN IN THE HANDS OF THE APPELLAN T OVERLOOKING THE FACT THAT THE PROPERTY WAS JOINTLY INHERITED BY THE APPELLANT ALONG WITH HER BROTHERS DATE OF HEARING 14.08.2018 DATE OF PRONOUNCEMENT 25.10.2018 2 ITA NO. 34/BIL/2016 AND SISTERS AND SHE WAS OWNER OF ONLY 1/6 SHARE IN THE PROPERTY. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN NOT ADDRESSING TH E ASSESSEES SUBMISSION THAT AS PER SECTION- 8 OF HINDU SUCCESSION ACT, 195 6, THE APPELLANT HAS DEVOLVED L/6 TH SHARE OF HER FATHER'S PROPERTY AND ERRED IN SUBJEC TING THE ENTIRE AMOUNT OF TAX IN THE HANDS OF ONLY ONE LEGAL HEIR. 4. THAT THE LD. COMMISSIONER OF INCOME-TAX (APPEAL S) HAS ERRED IN UPHOLDING ACTION OF THE LD. ASSESSING OFFICER DENYING DEDUCTI ON U/S 54B OF THE INCOME- TAX ACT, 1961 IN RESPECT OF AMOUNT INVESTED IN PURC HASE OF AGRICULTURAL LAND. 5. THAT THE LD. COMMISSIONER OF INCOME-TAX (APPEAL S) HAS ERRED IN UPHOLDING THE ACTION OF CHARGING OF INTEREST U/S 234B OF THE INCOME-TAX ACT, 1961. 6. THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) IS BAD IN LAW AND ON FACTS. 3. THE CASE WAS SELECTED FOR SCRUTINY ON THE BASIS OF AIR INFORMATION RELATING TO CASH DEPOSIT OF RS. 32,50,000/- MADE IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE MAINTAINED IN THE STATE BANK OF IND IA. IT WAS EXPLAINED THAT THE DEPOSIT WAS MADE OUT OF SALE CONSIDERATION OF AGRIC ULTURAL LAND SOLD DURING THE YEAR FOR RS. 40,75,000/-. IT WAS FURTHER EXPLAINED THAT THE SAID LAND WAS JOINTLY OWNED BY THE ASSESSEE WITH HER BROTHERS AND SISTERS AND AS DECIDED BY ALL THE FAMILY MEMBERS A BANK ACCOUNT IN THE NAME OF THE AS SESSEE WAS OPENED WHERE IN THE AFORESAID AMOUNT WAS DEPOSITED. DURING THE S CRUTINY PROCEEDINGS THE ASSESSEE WAS ASKED BY THE ASSESSING OFFICER TO FILE CONFIRMATION OF OTHER CO- OWNERS (SELLERS) OF LAND REGARDING RECEIPT OF SALE PROCEEDS, DEPOSIT OF AMOUNT IN BANK ACCOUNT, WITHDRAWAL OF AMOUNT AND UTILIZATION OF AMOUNT BY THEM. THE ASSESSEE FILED CONFIRMATIONS FROM TWO PERSONS ONLY. THE ASSESSING OFFICER FURTHER OBSERVED THAT NONE OF THE PERSONS WERE PROD UCED DESPITE SPECIFICALLY ASKING THEM TO APPEAR BEFORE HER. IN THE STATEMENT RECORDED ON 24.04.2014 THE ASSESSEE WAS SPECIFICALLY ASKED TO PRODUCE THE OTHE R CO-OWNERS BEFORE THE 3 ITA NO. 34/BIL/2016 ASSESSING OFFICER WHICH THE ASSESSEE COULD NOT PROD UCE FOR CONFIRMATION. THE ASSESSING OFFICER THEREFORE, MADE ADDITION OF RS. 4 0,75,000/- IN THE HANDS OF THE ASSESSEE. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE AS SESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE SALE DEED REFLECTI NG THE NAMES OF THE CO- OWNERS WERE PRODUCED BEFORE THE ASSESSING OFFICER A LONG WITH THE BANK DETAILS OF THE ASSESSEE. THE ARRANGEMENT WAS ORALLY EXPLAIN ED BY THE ASSESSEE ALONG WITH THE CONFIRMATIONS GIVEN BY THE TWO CO-OWNERS. ALL THESE RELEVANT EVIDENCES WERE IGNORED BY THE ASSESSING OFFICER AS WELL AS BY THE CIT(A). THEREFORE, BOTH THE REVENUE AUTHORITIES IGNORED THE ACTUAL FACT THA T THE ASSESSEE IS OWNER OF ONLY 1/6 TH OF THE SHARE IN THE PROPERTY SOLD AND HENCE THE EN TIRE ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. THUS, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT JUST AND PROPER AND DENIAL OF DEDUCTION U/S 54B OF THE INCOME TAX ACT, 1961 IS ALSO NOT CORRECT. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL AVAILABLE ON RECORD. FROM THE RECORDS IT CAN BE SEE N THAT THE LAND SOLD IS NOT EXCLUSIVELY AND SOLELY OWNED BY THE ASSESSEE. THE A SSESSEE HAS ONLY 1/6 TH OF THE SHARE. THE REVENUE HAS NOT TAKEN PROPER COGNIZA NCE OF THE ACTUAL FACT THAT THE PROPERTY IS OWNED BY 6 PERSON WHO ARE FAMILY ME MBERS OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT TAKEN INTO ACCOUNT AL L THE RELEVANT MATERIAL PRODUCED BEFORE HIM DURING THE ASSESSMENT PROCEEDIN GS. THEREFORE, IT WILL BE APPROPRIATE TO REMAND BACK ALL THE ISSUES TO THE FI LE OF THE ASSESSING OFFICER AND DECIDE THE MATTER A FRESH AFTER TAKING COGNIZAN CE OF ALL THE RELEVANT MATERIAL PRODUCED BY THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN THE OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF N ATURAL JUSTICE. 4 ITA NO. 34/BIL/2016 8. IN RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER, 2018 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 25/10/2018 *R.N COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT PRIVATE SECRETARY.. RAIPUR BENCH, RAIPUR. 5 ITA NO. 34/BIL/2016 DATE OF DICTATION 22.10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22.10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS .10.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT .10.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .10.2018 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER