Meena Chitra Kumar, CHENNAI V. ITO, CHENNAI

ITA 385/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8002 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: K RAVI
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . , ' # . $ , & ' BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICI AL MEMBER ./ I.T.A.NO.385/MDS/2016 ( / ASSESSMENT YEAR: 2010-11) MRS. MEENA CHITRA KUMAR, ST. MARYS ROAD, ALWARPET, CHENNAI-600 018. VS THE INCOME TAX OFFICER, BUSINESS WARD-XV(4) CHENNAI. PAN: AACPC5926H ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. K.RAVI, ADVOCATE /RESPONDENT BY : MR. SUPRIYO PAL, JCIT /DATE OF HEARING : 24 TH NOVEMBER, 2016 /DATE OF PRONOUNCEMENT : 25 TH NOVEMBER, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)- 4, CHENNAI DATED 26.11.2015 IN ITA NO.4/2013-14/A. Y.2010- 11/CIT(A) PASSED UNDER SECTION 143(3) R.W.S. 250(6) OF THE ACT. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HER APPEAL, HOWEVER, THE CRUX OF THE ISSUE IS AS FOLLOW S:- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE ORDER OF THE LEARNED ASSESSING OFFICER WHO HAD COMPUTED LONG TERM CAPITAL GAINS IN THE HANDS OF THE ASSESSEE AT RS. 30,49,498/- . 2 ITA NO.385/MDS/2016 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE AL ONG WITH HER HUSBAND SHRI S.KUMAR, JOINTLY OWNED A RESIDENTI AL HOUSE PROPERTY FLAT NO.2201, 2 ND FLOOR, IXORA, HIRANANDHANI MEDHOUSE, GLADYS, ALWARES ROAD, THANE. THE ASSESSEE AND HER HUSBAND MR. S.KUMAR HAD PURCHASED THE FLAT ON 9 .5.2009 FOR RS.75,19,750/- . DURING THE RELEVANT ASSESSMENT YEAR THEY JOINTLY SOLD THE FLAT ON 14.10.2009 FOR SALE CONSID ERATION OF RS.1.60 CRORES. THE INFORMATION WITH RESPECT TO THE SALE OF THE PROPERTY WAS OBTAINED BY THE LD.A.O FROM THE AIR RE PORT. THE ASSESSEE HAD NOT DECLARED THE SALE OF THE AFORESAID PROPERTY IN HER RETURN OF INCOME. ON QUERY BY THE LD.A.O SHE EXPLAINED THAT THE ENTIRE TRANSACTION WAS DISCLOSED BY HER HUSBAND IN HIS RETURN OF INCOME BECAUSE THE PROPERT Y WAS PURCHASED FROM HER HUSBANDS SOURCE OF INCOME. SINC E THE ASSESSEE HAD NOT PRODUCED THE RETURN OF INCOME FILE D BY HER HUSBAND BEFORE THE LEARNED ASSESSING OFFICER, HE T REATED 50% OF THE SALE CONSIDERATION VIZ. RS.80.00 LAKHS A S THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE AND COMPUT ED LONG TERM CAPITAL GAIN ON THE SAME AT RS.30,49,498/- AFT ER GIVING THE BENEFIT OF INDEXATION. 3 ITA NO.385/MDS/2016 4. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) CONFIRMED THE ORDER OF THE LEARNED ASSESS ING OFFICER BY OBSERVING AS UNDER:- 13.SINCE THERE IS NO SUBSTANTIVE ADDITION MADE IN THE HANDS OF THE HUSBAND OF THE APPELLANT, I AM OF THE CONSIDERED VIEW THAT THE PROTECTIVE ASSESSMENT MADE IN THE HANDS OF THE APPELLANT NEEDS TO BE SUSTAINED. THE FACTS OF THE CASE LAWS REFERRED TO B Y THE LD. AR DIFFER FROM THE PRESENT CASE OF THE APPELLANT TO THIS EXTENT ONLY THAT IN THE INSTANT C ASE, THE OTHER RELATED PARTY, I.E. HUSBAND OF THE ASSESSEE, HAS NOT FILED THE RETURN DF INCOME WITHIN THE STIPULATED TIME PERIOD AND THE SAME HAS ALREADY BEEN TREATED AS NON-EST. THEREFORE, THE RATIO OF TH E CASE LAWS DOES NOT APPLY TO THE PRESENT CASE OF THE ASSESSEE. 5. BEFORE US, THE LEARNED AUTHORIZED REPRESENTATIVE PRODUCED PAPER BOOK CONTAINING 45 PAGES WHICH INCLU DES THE RETURN OF INCOME FILED BY HER HUSBAND DECLARING THE ENTIRE SALE PROCEEDS AND THE LONG TERM CAPITAL GAIN. THER EAFTER HE ARGUED STATING THAT, SINCE THE ASSESSEES HUSBAND H AD DECLARED THE CAPITAL GAIN IN HIS RETURN OF INCOME, THE ADDITION MADE IN THE HANDS OF THE ASSESSEE MAY BE DELETED. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OBJECTED TO THE SUBMISSIONS OF THE LEARNED AUTHORIZ ED REPRESENTATIVE. 4 ITA NO.385/MDS/2016 7. AFTER HEARING BOTH SIDES, WE ARE OF THE CONSIDER ED VIEW THAT SINCE THE PAPER BOOK FILED BY THE ASSESSEE WAS NOT BEFORE THE LEARNED ASSESSING OFFICER ON THE EARLIER OCCASION, THE MATTER HAS TO BE REMITTED BACK TO THE FILE OF T HE LEARNED ASSESSING OFFICER FOR FRESH CONSIDERATION. ACCORDIN GLY, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF THE LEA RNED ASSESSING OFFICER TO CONSIDER THE ISSUE AFRESH AND IF HE FINDS THAT THE ASSESSEES HUSBAND HAS DECLARED AND COMPUT ED THE LONG TERM CAPITAL GAIN IN ACCORDANCE WITH THE PROVI SIONS OF THE ACT ON THE ENTIRE SALE PROCEEDS FOR THE AFORESAID F LAT IN HIS RETURN OF INCOME, THEN DELETE THE ADDITION MADE IN THE HANDS OF THE ASSESSEE, OTHERWISE PASS APPROPRIATE ORDER A S PER MERIT AND LAW. IT IS ORDERED ACCORDINGLY. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES, AS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 25 TH NOVEMBER , 2016 SD/- SD/- ( ' # . $ ) ( . ) ( DUVVURU RL REDDY ) ( A. MOHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER 5 ITA NO.385/MDS/2016 # /CHENNAI, ( /DATED 25 TH NOVEMBER, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF