SHAKUNTALA SOGANI, Ajmer V. ITO, Ajmer

ITA 46/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9727 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 11-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Assessee Lawyers: SUDHIR SOGANI
• Keywords: Gift
• Section: 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 46/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2011-12 SHAKUNTALA SOGANI, 2, VINAY SHAKUN GOKHLE MARG, STATE BANK COLONY, AJMER. CUKE VS. INCOME TAX OFFICER, WARD 2(1), AJMER. PAN/TAN NO.: AESPS 7285 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 44/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2011-12 DEEPAK SOGANI, 2, VINAY SHAKUN GOKHLE MARG, STATE BANK COLONY, AJMER. CUKE VS. INCOME TAX OFFICER, WARD 2(1), AJMER. PAN/TAN NO.: ADLPS 0646 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 45/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2011-12 SANJEEV SOGANI, 2, VINAY SHAKUN GOKHLE MARG, STATE BANK COLONY, AJMER. CUKE VS. INCOME TAX OFFICER, WARD 2(1), AJMER. PAN/TAN NO.: AEGPS 9386 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA 46, 44 & 45/JP/2016 SHAKUNTALA SOGANI WITH TWO OTHER ASSESSEES VS. ITO 2 FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SUDHIR SOGANI (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20/02/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 09/03/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THESE ARE THE APPEALS FILED BY THREE DIFFERENT ASSE SSEES AGAINST THE THREE SEPARATE ORDERS ALL DATED 29/10/2015 PASSED B Y THE LD. CIT(A), AJMER PERTAINING TO THE ASSESSMENT YEAR 2011-12. 2. IN ALL THE APPEALS, THERE IS ONE COMMON GROUND I NVOLVED, THEREFORE, THE SAME ARE HEARD TOGETHER AND FOR THE SAKE OF CON VENIENCE AND BREVITY, A COMMON ORDER IS BEING PASSED. 3. IN THESE APPEALS, THE ASSESSEES HAVE RAISED FOLL OWING GROUNDS:- GROUNDS OF ITA NO. 46/JP/2016 1. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE PROPERTIES SOLD BY THE ASSESSEE WERE JOINTLY OWNED BY THE ASSESSEE AND HER SONS, DEEPAK SOGANI AND SANJEEV SOGANI. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN HOLDING T HAT THE ASSESSEE IS CO-OWNER WITH HER SONS, DEEPAK AND SANJEEV OF THE PROPERTIES SOLD. 3. THE ASSESSEE CRAVES TO ADD, AMEND, ALERT, INSERT ANY GROUND BEFORE DISPOSAL OF APPEAL. GROUNDS OF ITA NO. 44/JP/2016 ITA 46, 44 & 45/JP/2016 SHAKUNTALA SOGANI WITH TWO OTHER ASSESSEES VS. ITO 3 1. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE IS CO-OWNER WITH HIS MOTHER SMT. SHAKUNTALA SOGANI OF THE PROPERTY SOLD. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAININ G ADDITION OF RS. 2,00,000/- U/S 68 OF THE IT ACT, 196 1 OPINING THAT THE GIFT RECEIVED BY THE ASSESSEE FROM HIS MOTHER SMT. SHAKUNTALA SOGANI IS NOT GENUINE. 3. THE ASSESSEE CRAVES TO ADD, AMEND, ALERT, INSERT ANY GROUND BEFORE DISPOSAL OF APPEAL. GROUNDS OF ITA NO. 45/JP/2016 1. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE IS CO-OWNER WITH HIS MOTHER SMT. SHAKUNTALA SOGANI OF THE PROPERTY SOLD. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAININ G ADDITION OF RS. 39,000/- TO THE INCOME OF THE ASSES SEE HOLDING THAT THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH THAT THE PROFESSIONAL FEES OF RS. 39,300/ - RECEIVED FROM HINDUSTAN UNILEVER LTD. IS INCLUDED IN TOTAL RECEIPTS DECLARED BY THE ASSESSEE. 3. THE ASSESSEE CRAVES TO ADD, AMEND, ALERT, INSERT ANY GROUND BEFORE DISPOSAL OF APPEAL. 4. GROUND NO. 3 OF ALL THE APPEALS IS GENERAL IN NA TURE AND NOT REQUIRED ANY ADJUDICATION, THEREFORE, THE SAME ARE HEREBY DI SMISSED. 5. GROUNDS NO. 1 AND 2 IN ITA NO. 46/JP/2016 AND GR OUND NO. 1 IN ITA NO. 44 AND 45/JP/2016 ARE WITH REGARD TO A COMMON IS SUE. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE SMT. SHANKUNTALA SOGA NI IS THE MOTHER OF ITA 46, 44 & 45/JP/2016 SHAKUNTALA SOGANI WITH TWO OTHER ASSESSEES VS. ITO 4 SHRI DEEPAK SOGANI AND SHRI SANJEEV SOGANI, WHO ARE THE OTHER TWO APPELLANTS. SMT. SHANKUNTALA SOGANI HAS CLAIMED THA T TWO OF HER PROPERTIES SITUATED AT VILLAGE GHOOGHRA WERE PURCHASED BY HERSE LF FROM HER OWN FUNDS BUT THE NAME OF HER SONS SHRI DEEPAK SOGANI AND SHR I SANJEEV SOGANI WERE ADDED IN THE PURCHASE DEED FOR THE REASON OF FU TURE EVENTUALITIES AND LEGAL HASSLES THEREAFTER. IT WAS ALSO CLAIMED THAT S HE HAS DULY REFLECTED THE PROPERTY IN HER NAME AND HOWEVER, WHEN THE PROPERTIES WERE SOLD TO SMT. SUBHITA AGARWAL, SEPARATE CHEQUES WERE ISSUED TO SONS AND SALE PROCEEDS WERE DEPOSITED IN THEIR ACCOUNTS. SHE CLAIMED THAT T HIS WAS DONE TO AVOID ANY FUTURE LEGAL HASSLES. THE ASSESSING OFFICER HELD THAT SINCE THE PURCHASES WERE ALSO MADE IN THE NAME OF SHRI DEEPAK SOGANI AND SHRI SANJEEV SOGANI AND THE SALES WERE ALSO MADE BY THESE TWO PERSONS AND THE SALE PROCEEDS WERE ALSO RECEIVED IN THEIR HANDS , THEREFORE, CAPITAL GAIN ARISES ON THE TRANSFER OF THESE PROPERTIES HAVE TO BE TAXED SEPARATELY IN THEIR HANDS. 6. THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE ASS ESSING OFFICER BY HOLDING AS UNDER:- 4.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER, STAT EMENT OF FACTS, GROUNDS OF APPEAL AND WRITTEN SUBMISSIONS CAR EFULLY. THE AO HAS TREATED 50% OF THE SALES CONSIDERATION AS THE ITA 46, 44 & 45/JP/2016 SHAKUNTALA SOGANI WITH TWO OTHER ASSESSEES VS. ITO 5 CONSIDERATION RECEIVED BY THE APPELLANT BECAUSE AS PER THE SALE DEED, PROPERTIES WERE OWNED JOINTLY BY THE APPELLANT WITH SHRI DEEPAK SOGANI AND SHRI SANJEEV SOGANI. THE CLAIM OF THE APPELLANT THAT THE PROPERTI ES SOLD WERE ACQUIRED ONLY WITH THE FUNDS PROVIDED BY THE APPELLANT, THEREFORE, ENTIRE SALES CONSIDERATION OF THESE PROPERTIES SHOULD BE HELD TO HAVE BEEN RECEIVED BY THE APPELLANT IS NOT SUBSTANTIATED WITH ANY DOCUMENTARY EVIDENCE. THEREFORE, THE CONTENTION OF THE APPELLANT CANNOT BE ACCEPTED. HENCE, THESE GROUNDS OF APPEAL ARE HEREBY DISMISSED. 7. NOW THE ASSESSEES ARE IN APPEALS BEFORE ME. THE LD AR OF THE ASSESSEES HAVE RELIED ON THE SUBMISSIONS AS MADE BE FORE THE AUTHORITIES BELOW AND ALSO PLEADED THAT THE TOTAL CAPITAL GAIN S HOULD HAVE BEEN TAXED IN THE CASE OF SMT. SHANKUNTALA SOGANI INSTEAD OF O THER CO-OWNERS. 8. ON THE OTHER HAND, THE LD. DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 9. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE PURCHASE WA S MADE IN THE JOINT NAME OF ASSESSEE AND HER BOTH SONS. THE SALE WAS ALS O AFFECTED BY ALL THE CO-OWNERS. THE SALE CONSIDERATION WAS ALSO RECEIVED I N THEIR RESPECTIVE BANK ACCOUNTS. ALL THESE FACTS SUGGEST THAT THIS WAS THE PROPERTY HELD ITA 46, 44 & 45/JP/2016 SHAKUNTALA SOGANI WITH TWO OTHER ASSESSEES VS. ITO 6 JOINTLY, THEREFORE, THE CAPITAL GAIN ARISES ON THE TRANSFER OF THESE PROPERTIES HAVE TO BE TAXED IN THE CO-OWNERS AND IN VIEW THESE F ACTS AND CIRCUMSTANCES, I DO NOT FIND ANY INFIRMITY IN THE O RDER OF THE LD. CIT(A). ACCORDINGLY, GROUNDS NO. 1 AND 2 OF ITA NO. 46/JP/2 016 AND GROUND NO. 1 OF ITA 44 & 45/JP/2016 ARE DISMISSED. 10. GROUND NO. 2 OF ITA NO. 45/JP/2016 IS WITH REGAR D TO MAKING AND SUSTAINING THE ADDITION OF RS. 39,300/-. THE LD. CIT (A) HAS SUSTAINED THE ADDITION BY HOLDING THAT THE PROFESSIONAL FEE OF RS . 39,300/- RECEIVED FROM HINDUSTAN UNILEVER LTD. IS NOT INCLUDED IN THE RECE IPTS DECLARED BY THE ASSESSEE. THE ASSESSEE CLAIMS THAT THE PROFESSIONAL FEE RECEIVED FROM HINDUSTAN UNILEVER LTD. IS A PART AND PARCEL OF THE TOTAL RECEIPTS DECLARED ON THE ASSESSEE AT RS. 1,18,000/-. THIS MISUNDERSTANDI NG HAPPENED FOR THE REASON THAT THE ASSESSEE HAS NOT CLAIMED TDS ON THES E RECEIPTS OF RS. 39,300/- AND THEREFORE, IT WAS TREATED AS NO INCLUDE D IN THE TOTAL RECEIPTS. THE LD. AR SUBMITTED THAT THIS WAS BASED ONLY ON THE PRESUMPTIONS. 11. THE LD DR HAS SUPPORTED THE ORDERS OF THE AUTHOR ITIES BELOW. 12. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD ON THIS ISSUE. I FIND THAT THE LD. CIT(A) HAS NOT GIVEN ANY CLEAR CUT FINDING WHETHER THE RECE IPT WAS NOT PART OF THE ITA 46, 44 & 45/JP/2016 SHAKUNTALA SOGANI WITH TWO OTHER ASSESSEES VS. ITO 7 TOTAL RECEIPT OF RS. 1,18,000/- DECLARED BY THE ASS ESSEE, THEREFORE, IN THE INTEREST OF JUSTICE AND EQUITY, THE ISSUE IS RESTOR ED BACK TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION. IF THE ASSESSEE S CLAIM FOUND IN ORDER, THEN RELIEF MAY BE GRANTED TO THE ASSESSEE. 13. GROUND NO. 2 OF ITA NO. 44/JP/2016 IS AGAINST S USTAINING THE ADDITION OF RS. 2.00 LACS U/S 68 OF THE INCOME TAX A CT, 1961 (IN SHORT THE ACT). THE ASSESSEE HAD SHOWN GIFT FROM HER MOTHER SMT . SHAKUNTALA SOGANI. THE ASSESSING OFFICER ADDED THE AMOUNT HOLDI NG THAT THE ASSESSEE HAS NOT PROVED THE GENUINENESS OF THE GIFT TRANSACT ION. 14. THE LD. CIT(A) HAS CONFIRMED THE ADDITION FOR TH E REASON THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF CASH O F RS. 2.00 LACS FROM SMT. SHAKUNTALA SOGANI. THEREFORE, THE ADDITION WAS CONFIR MED. 15. I HAVE HEARD BOTH THE SIDES ON THIS ISSUE. THE A SSESSEE HAS SHOWN GIFT FROM HIS MOTHER SMT. SHANKUNTALA SOGANI. THE GI FT WAS IN CASH. THERE WAS A CLOSE RELATION BETWEEN THE DONOR AND DONE. THE D ONOR SMT. SHAKUNTALA SOGANI HAS AFFIRMED THE GIFT THAT SHE HA S GIVEN A GIFT OF RS. 2.00 LACS TO HER SON SHRI DEEPAK SOGANI. THE DONEE HAS A LSO AFFIRMED THE FACT. THE CAPITAL ACCOUNT AND BALANCE SHEET OF DONOR WAS AL SO SUBMITTED, WHICH ALSO REFLECTS THE GIFT OF RS. 2.00 LACS TO HER SON, THEREFORE, IN SUCH A ITA 46, 44 & 45/JP/2016 SHAKUNTALA SOGANI WITH TWO OTHER ASSESSEES VS. ITO 8 CIRCUMSTANCES, THE ADDITION IN THE HANDS OF THE ASS ESSEE WAS NOT JUSTIFIED. IF THERE WAS ANY DOUBT REGARDING THE SOURCE IN THE H ANDS OF SMT. SHANKUNTALA SOGANI, THEN THE ASSESSING OFFICER COUL D HAVE PROCEEDED IN HER HANDS. THE DONOR SMT. SHAKUNTALA SOGANI WAS ALSO ASSESSED WITH THE SAME ASSESSING OFFICER AND ALSO TAXED IN THE SAME C IRCLE. IT MAY BE ALSO NOTED THAT THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2011-12 HAS BEEN MADE BY THE SAME ASSESSING OFFICER ON 22/1/2015. THE REFORE, THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A) IS HEREBY DELETED. ACCORDINGLY, GROUND NO. 2 OF ITA NO. 44/JP /2016 IS ALLOWED. 16. IN THE RESULT, ITA NO. 46/JP/2016 IS DISMISSED, ITA NO. 45/JP/2016 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES ONLY AND ITA NO. 44/JP/2016 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/03/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ YS[KK LNL;@ YS[KK LNL;@ YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09 TH MARCH, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- (I) SMT. SHAKUNTALA SOGANI, AJMER. (II) SHRI DEEPAK SOGANI, AJMER. ITA 46, 44 & 45/JP/2016 SHAKUNTALA SOGANI WITH TWO OTHER ASSESSEES VS. ITO 9 (III) SHRI SANJEEV SOGANI, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 2(1), AJMER. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 44 TO 46/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR