M/S KANAIYALAL RANVEER SINGH BENGANI HUF, Jaipur V. ITO, Jaipur

ITA 460/JPR/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82818 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 16-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Assessee Lawyers: MANI PRABHA
• Section: 234B; 6

Judgement Text

ITA NO. 460/JP/2011 M/S. KANAIYALAL RANVEER SINGH BENGANI, HUF VS. ITO WARD- 2(2), JAIPUR 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 460/JP/2011 ASSESSMENT YEAR: 2005-06 PAN : AABHK 3375 F M/S. KANAIYALAL RANVEER SINGH BENGANI (HUF ) VS. TH E ITO A-6, JAYANTI BAZAR, M.I. ROAD WARD- 2(2) JAIPUR JAIPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SMT. MANI PRABHA DEPARTMENT BY: SHRI D.C. SHARMA DATE OF HEARING: 16-09-2014 DATE OF PRONOUNCEMENT: 31-10-2014 ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-I, JAIPUR DATED 15-03-2011 WHEREIN THE ASS ESSEE HAS RAISED FOLLOWING GROUNDS IN HIS APPEAL. 1. THE LD. CIT(A) ERRED IN NOT ACCEPTING THE SALE CONSIDERATION OF RS. 54,00,000/- OF THE PROPERTY TO BE CONSIDERED IN THE COMPUTATION OF INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAIN. 2. THE LD. CIT(A) HAS ERRED IN COMPUTING THE SALE CONSIDERATION OF WHOLE PROPERTY AS ONE WITHOUT CONSIDERING THE FACTS THAT SEVEN SALE DEEDS HAVE BE EN EXECUTED WITH DIFFERENT TENANTS AND PERSONS. ITA NO. 460/JP/2011 M/S. KANAIYALAL RANVEER SINGH BENGANI, HUF VS. ITO WARD- 2(2), JAIPUR 2 THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT T HE CAPITAL GAINS OF EACH PROPERTY IS TO BE COMPUTED SEPARATELY FOR ARRIVING AT THE CORRECT AMOUNT OF TH E CAPITAL GAIN OF EACH PROPERTY LOOKING TO THE SITUATION, CON DITIONS AND OTHER FACTORS. 3. THE LD. CIT(A) HAS ERRED IN DISALLOWING THE COST VALUE AS ON 01-04-1981 OF RS. 13,60,700/- ADOPTED B Y THE ASSESSEE. 4. LOOKING TO THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A) HAS ERRED IN NOT DELETING INTEREST CHARGEABL E U/S 234B OF THE ACT AS INTEREST U/S 234B IS LEVIABLE ON LY ON THE RETURNED INCOME AND NOT ON THE ASSESSED INCOME. 2.1 THE LD. DR AT OUTSET CONTENDS THAT THERE IS NO MERIT IN THE ASSESSEE'S APPEAL INASMUCH AS WHILE DECIDING THE REVENUE APPEA L, LD. CIT(A) HAD GIVEN PART RELIEF TO THE ASSESSEE AGAINST WHICH BOTH THE PARTIES FILED APPEALS BEFORE ITAT IN 2011. IN FACT, THE ASSESSEE FILED ITS APPEA L PRIOR TO REVENUES APPEAL WHICH IS EVIDENT FROM THE SERIAL NUMBERS I.E. ASSES SEES APPEAL BEARING ITA NO. 460/JP/2011 WHILE REVENUES APPEAL BEARING ITA NO. 498/JP/2011. THE REVENUE APPEAL HAS BEEN DECIDED BY ITAT VIDE ORDER DATED 31-01-2012 IN WHICH ITAT UPHELD THE ORDER OF THE LD. CIT(A) BY FO LLOWING OBSERVATIONS. 5.2 WE HAVE HEARD BOTH THE PARTIES. THE LD. CIT(A ) AFTER CONSIDERING THE DECISION OF HON'BLE GUJARAT H IGH COURT IN THE CASE OF CIT VS. BABU BHAI AND NANU BHAI, HUF , 220 ITR 334 HAS ALLOWED THE RELIEF. BEFORE US, NO DECISION OF ANY OTHER HON'BLE HIGH COURT HAS BEEN CITED IN SUPPORT THE CO NTENTIONS RAISED BY THE REVENUE. HENCE, WE FEEL THAT THE LD. CIT(A) WAS JUSTIFIED IN GIVING RELIEF. FOR READY REFERENCE, WE REPRODUCE PARA 7 OF THE LD. CIT(A)S ORDER TO MAKE THE ISSUE CLEAR. ITA NO. 460/JP/2011 M/S. KANAIYALAL RANVEER SINGH BENGANI, HUF VS. ITO WARD- 2(2), JAIPUR 3 IT WAS SUBMITTED THAT ON DEATH OF KARTA OF HUF HIS INDIVIDUAL SHARE SHOULD GET REDUCED AND ONLY BA LANCE AMOUNT MAY BE CONSIDERED FOR THE PURPOSE OF CAPITAL GAIN TAX IN THE HANDS OF HUF. RELIEANCE WAS PLACED ON THE DECIS ION OF GUJARAT H.C. IN THE CASE OF CIT VS. BABU BHAI AND N ANU BHAI, HUF 220 ITR 334 (GUJ). THIS WAS FOLLOWED IN CIT VS. DHARAMPAL SINGH, HUF 280 ITR 629 AND CIT VS. MEERA PREM SUNDER 280 ITR 360. AS THIS GROUND OF APPEAL WAS RA ISED FIRST TIME; REMAND REPORT OF AO WAS CALLED FAR. THE AO IN HIS REMAND REPORT HAS CONTESTED ADMISSION OF ADDITIONAL GROUND OF APPEAL ON THE GRO UND THAT THE APPELLANT HIMSELF HAS OFFERED WHOLE AMOUNT OF S ALE CONSIDERATION IN THE HANDS OF HUF IN THE RETURN OF INCOME AND NO SUCH GROUND WAS RAISED DURING THE ASSESSMENT PRO CEEDINGS. THAT IN THE RETURN OF INCOME FILED IN THE CAPACITY OF HUF, THERE WAS NO MENTION OF TRANSFER OF SHARES BETWEEN MEMBER S DUE TO DEATH OF ONE OF THE COPARCENERS. THE PROPERTY PERTA INS TO HUF WHICH IS AN INDEPENDENT ASSESSMENT AND THE DISPUTE OF MEMBERS INTER SE DOES NOT AFFECT ITS TAX LIABILITY. ALSO TH AT THERE WAS NO DISPUTE BETWEEN THE MEMBERS OF PRESENT HUF. THE DEA TH OF SHRI RANVEER SINGH BENGANI, DOES NOT HAVE ANY AFFECT ON THE CONTINUITY OF ASSESSEE HUF. THE ARS SUBMISSION AS WELL AS REMAND REPORT OF THE AO IS CONSIDERED. AS THE ADDITIONAL GROUND OF A PPEAL RAISED IS PURELY LEGAL, THE SAME IS ADMITTED. SHRI RANVEER SINGH BENGANI, HUF INHERITED THE PROPERTY UNDER QUESTION AS THEIR SHARE ON PARTITION OF HIS FATHER HUF. SHRI RANVEER SINGH BENGANI WAS KARTA OF HUF TI LL HIS DEATH. SHRI RANVEER SINGH BENGANI, HUF CONSISTED OF SELF, HIS WIFE, TWO SONS AND DAUGHTER. HE DIED IN 1993. COPAR CENERS PROPERTY WAS TRANSFERRED ON ACCOUNT OF SALE AFTER T HE DEATH OF ONE OF THE COPARTNERS OF HUF AND PROVISIONS OF SECT ION 6 OF HINDU SUCCESSION ACT ARE ATTRACTED. ON DEATH OF SHR I RANVEER SINGH BENGANI, HIS ELDEST SON BECAME KARTA OF HIS H UF. THE HONBLE GUJARAT H.C. IN THE CASE OF CIT VS. BABU BH AI AND ITA NO. 460/JP/2011 M/S. KANAIYALAL RANVEER SINGH BENGANI, HUF VS. ITO WARD- 2(2), JAIPUR 4 NANU BHAI, HUF, THE CASE RELIED UPON BY THE AR, HAS HELD THAT THE CAPITAL GAIN TO THE EXTENT IT WAS ATTRIBUTABLE TO THE EXTENT OF THAT INTEREST WHICH HAS DEVOLVED BY SUCCESSION PART AKING OF DIFFERENT CHARACTER HAS TO BE EXCLUDED WHILE COMPUT ING CAPITAL GAIN ACCRUED TO THE HUF. RESPECTFULLY FOLLOWING THE DECISION OF GUJARAT H.C. THE AO IS, THEREFORE, DIRECTED TO EXCL UDE 1/3 RD SHARE OF THE DECEASED SHRI RANVEER SINGH BENGANI OU T OF COMPUTATION OF CAPITAL GAIN TAX. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. IN THE REVENUES APPEAL, SAME COUNSEL OF THE ASSESS EE APPEARED, BUT FOR THE REASONS BEST KNOWN TO HER, IT WAS NOT POINTED OUT T O THE BENCH AT THE TIME OF HEARING THAT THERE IS A CORRESPONDING ASSESSEE'S AP PEAL ALSO WHERE PART RELIEF HAS ALSO BEEN CHALLENGED. LD. DR CONTENDS THAT IT W AS NOT A GOOD GESTURE ON THE PART OF THE ASSESSE TO WITHHOLD CRUCIAL INFORMA TION FROM THE BENCH. IN THESE CIRCUMSTANCES AND FACTS OF THE CASE, CONSEQUE NT TO ITAT ORDER IN REVENUE APPEAL, LD. CIT(A)S ORDER HAS BECOME FINAL NOW AND THE BENCH CANNOT REVIEW THE SAME. IN VIEW OF THESE FACTS, THE ASSESSEE'S APPEAL DESERVES TO BE DISMISSED. 2.2 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ITAT WHILE DECIDING THE REVENUES APPEAL WAS NOT INTIMATED ABO UT THE ASSESSEE'S APPEAL OWNING TO CONFUSION. HOWEVER, SHE CONTENDS THAT PR OPER RELIEF HAS NOT BEEN GIVEN TO THE ASSESSEE BY THE LD. CIT(A). SHE RELIED ON THE WRITTEN SUBMISSION AND PAPER BOOK IN THIS BEHALF. ITA NO. 460/JP/2011 M/S. KANAIYALAL RANVEER SINGH BENGANI, HUF VS. ITO WARD- 2(2), JAIPUR 5 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENTS OF THE LD. DR. IT WAS THE DUTY OF THE ASSESSEE TO INFORM THE BENCH ABOUT THE PENDENCY OF ITS APPEAL WHICH WAS FILED BY IT BEFORE REVENUES APPEAL MORE SO WHEN ASSESSEE WAS AWARE OF THIS FACT ABOUT ITS OWN APPEAL. WE DO NOT APPROVE THIS PRACTICE ADOPTED BY THE ASSESSEE IN THIS BEHALF. SINCE THE L D. CIT(A)S ORDER HAS BECOME FINAL IN VIEW OF THE ITAT ORDER REFERRED TO ABOVE, THE BENCH CANNOT INTERFERE OR REVIEW IN THE DECISION ALREADY TAKEN B Y ITAT. THUS IN VIEW THEREOF, THE APPEAL OF THE ASSESSEE IS DISMISSED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31-1 0-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 31 ST OCT. 2014 *MISHRA COPY FORWARDED TO:- 1.M/S. KANAIYALAL RANVEER SINGH BENGANI, HUF ,JAIPU R 2. THE ITO, WARD- 2(2), JAIPUR 3. THE LD. CIT(A) 4. THE LD. CIT BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 460/JP/2011) AR ITAT, JAIPUR