Babashri Ramdeo Mandir Through Kishrilal Gopikishan Jaju, V. ITO,CIB, Kolhapur,

ITA 395/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3346 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 01-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJU AJWANI
• Keywords: Capital asset; Cost of acquisition
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH, B PUNE BEFORE SHRI I.C. SUDHIR, JM AND SHRI R.C. SHARMA, AM I.T.A. NO. 395/PN/2009: 2005-06 BABASHRI RAMDEO MANDIR THROUGH KISHRILAL GOPIKISAN JAJU W.NO. 11, H NO. 440 ICHALKARANJI PAN AASWPJ 5933 D APPELLANT VS. I.T.O. CIB, KOLHAPUR RESPONDENT APPELLANT BY : SHRI M.K. KULKARNI RESPONDENT BY: SMT. MANJU AJWANI ORDER PER I.C. SUDHIR, JM THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER ON THE GROUND THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE TAXATION OF LONG TERM CAPITAL GAIN IN THE HANDS OF SHRI MISHRILAL GOPIKISHAN JAJU IN HIS INDIVIDUAL CAPACIT Y AS THE SAME SHOULD HAVE BEEN ASSESSED IN THE HANDS OF DEI TY THE BABASHRI RAMDEO MANDIR. 2. THE RELEVANT FACTS ARE THAT THE ASSESSMENT ORDER FRAMED U/S 144 OF THE ACT WAS QUESTIONED BY THE ASSESSEE B EFORE THE LEARNED CIT(A) ON THE GROUND THAT THE A.O DID NOT C ONSIDER THE INDEXED COST OF ACQUISITION OF THE CAPITAL ASSET FO R COMPUTATION ITA NO. 395/PN/2009 BABASHRI RAMDEO MANDIR A.Y. 2005-06 2 OF CAPITAL GAIN CONSIDERED IN MAKING THE ASSESSMENT IN THE STATUS OF INDIVIDUAL. IT WAS REQUESTED THAT IN THA T CASE THE COST OF IMPROVEMENT INCURRED ON CAPITAL ASSET LAND MAY BE ALLOWED WHILE MAKING COMPUTATION OF LONG TERM CAPIT AL GAIN. NOW, THE GRIEVANCE OF THE ASSESSEE AGAINST THE FIRS T APPELLATE ORDER IS THAT THE LEARNED CIT(A) HAS CONFIRMED THE INDEXING OF LONG TERM CAPITAL GAIN IN THE HANDS OF SHRI MISHRIL AL GOPIKISHAN JAJU IN HIS INDIVIDUAL CAPACITY WHEREAS THE SAME SHOULD HAVE BEEN ASSESSED IN THE HANDS OF DEITY T HE BABASHRI RAMDEO MANDIR THROUGH THE SHEBAITS. 3. BEFORE US, THE LEARNED AR SUBMITTED THAT SHRI JA JU WAS INVOLVED IN THE PURCHASE AND SALE OF THE PROPERTY O N BEHALF OF THE HINDU DEITY THE BABASHRI RAMDEO MANDIR. SHRI J AJU IS THE TRUSTEE. THE PROPERTY HAD BEEN PURCHASED IN TH E NAME OF MANDIR. SINCE THE ASSESSMENT ORDER HAS BEEN BASED ON WRONG PERSON, THE SAME SHOULD BE TREATED AS NULL AND VOID . HE PLACED RELIANCE ON THE DECISION IN THE CASE OF UDA MSINGH VS. CIT (171 ITR 471) WHEREIN IT HAS BEEN HELD THAT HIN DU DEITY IS THE JURIDICAL PERSON. IN THE ALTERNATIVE, THE LEAR NED AR ARGUED THAT IF THE ASSESSEE IS FOUND NOT A REGISTERED TRUS T THE CAPITAL GAIN SHOULD BE ASSESSED AS AN AOP. 4. THE LEARNED DR ON THE OTHER HAND TRIED TO JUSTIF Y THE FIRST APPELLATE ORDER WITH THE SUBMISSION THAT THE ASSESS EE WAS ITA NO. 395/PN/2009 BABASHRI RAMDEO MANDIR A.Y. 2005-06 3 NEITHER ABLE TO ESTABLISH ITSELF AS A REGISTERED TR UST NOR AS AN AOP. 5. ON PERUSAL OF THE FIRST APPELLATE ORDER, WE FIND SUBSTANCE IN THE ABOVE OPPOSITION OF THE LEARNED DR THAT IN S UPPORT OF ITS CLAIM THAT LONG TERM CAPITAL GAIN SHOULD HAVE BEEN ASSESSED IN THE HANDS OF THE DEITY THE BABASHRI RAMDEO MANDIR THE ASSESSEE WAS NEITHER ABLE TO ESTABLISH ITSELF AS A REGISTERED TRUST NOR AS A GROUP OF PERSON, WHO JOINED TOGETHER WITH COMMON INTENTION OF CREATING AND RUNNING A SANSTHA. SINCE THE APPELLANT HAS NOT IMPROVED ITS CASE EVEN BEFORE THE TRIBUNAL, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF THE LEARNED CIT(A) (PARA 13 OF THE FIRST APPELLATE ORDER) ON THE ISSUE. THE SAME IS UPHELD. THE DECISION IN THE CA SE OF UDAMSINGH VS. CIT (SUPRA) RELIED UPON BY THE LEARN ED AR IS OF NO HELP TO THE ASSESSEE AS THEREIN THE EXISTENCE OF HINDU UNDIVIDED FAMILY WAS NOT IN DOUBT ABOUT WHICH IT WA S HELD BY THE HONBLE SUPREME COURT THAT HINDU UNDIVIDED FAMI LY IS A SEPARATE LEGAL ENTITY AND IT IS IN THIS SENSE THAT LEGAL EXPRESSION HAS BEEN EMPLOYED IN THE TAX LAW. IN TH E PRESENT CASE HOWEVER, THE VERY EXISTENCE OF THE TRUST OR AO P AS CLAIMED BY THE LEARNED AR IS IN DOUBT. THE GROUND IS ACCORDINGLY REJECTED. CONSEQUENTLY THE APPEAL IS DI SMISSED. ITA NO. 395/PN/2009 BABASHRI RAMDEO MANDIR A.Y. 2005-06 4 6. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST AUGUST 2010. SD/- SD/- (R.C. SHARMA) (I.C. SUDHIR) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE,DATED THE 31 ST AUGUST 2010 ANKAM COPY FORWARDED TO: (1) ASSESSEE (2) DEPARTMENT (3) CIT- (A) KOLHAPUR (4) CIT KOLHAPUR (5) THE D.R. B BENCH, PUNE TRUE COPY BY ORDER, ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, PUNE BENCHES, PUNE