ITO, Jaipur V. LATE SMT. SEEMA MUKHARJEE, Jaipur

ITA 466/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2227 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 02-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRAVIN SARASWAT CA DHK
• Keywords: Sale consideration of property below Jantri Value; Assessment record; Onus to prove
• Section: 50C; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA-@ ITA NO. 466/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER, WARD 3(2), JAIPUR. CUKE VS. LATE SMT. SEEMA MUKHARJEE, THROUGH L/H SHRI ALOOK MUKHARJEE, HATHI BABU KA BAGH, STATION ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACTPM 0161 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SMT. NEENA JEPH (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI PRAVIN SARASWAT (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02/01/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 04/01/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE REVENUE EMANATES FRO M THE ORDER OF THE LD. CIT(A)-I, JAIPUR DATED 02/03/2017 FOR THE A. Y. 2008-09. THE ONLY ISSUE INVOLVED IN THE APPEAL IS DELETING THE ADDITI ON OF LONG TERM CAPITAL GAIN AMOUNTING TO RS. 87,75,759/-. 2. WHILE PLEADING ON BEHALF OF THE REVENUE, THE LD DR HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. ITA 466/JP/2017_ ITO VS. LATE SMT. SEEMA MUKHARJEE 2 3. ON THE OTHER HAND, THE LD AR OF THE ASSESSEE HAS RELIED ON THE ORDER OF THE LD. CIT(A). 4. THE BENCH HAVE HEARD BOTH THE SIDES ON THIS ISSUE . THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE BY HOLDING AS UN DER: 3.2.1 DETERMINATION (I) IN THIS GROUND OF APPEAL, IT WAS STATED BY THE APPE LLANT THAT THE DECEASED APPELLANT HAD NOT SOLD PLOT NO. 55B, HATHI BABU KA BAGH, STATION ROAD, JAIPUR FOR RS. 45 LAC AND THE SAID PR OPERTY WAS SOLD BY SMT. GYANWATI DHAKHAR AND THE DECEASED APPELLANT WA S JUST A LGEFRDRKZ THROUGH POWER OF ATTORNEY OF SHRI MADAN GOPAL KHAT RI. IN SUPPORT OF ITS CLAIM, A COPY OF REGISTERED SALE DEE D DATED 30.08.2007 WAS ENCLOSED WITH THE APPEAL FILED IN FORM NO. 35. THE COMPUTATION' OF INCOME OF SMT. GYANWATI DHAKHAR FOR THE AY 2007- 08 WAS ALSO FILED WHEREIN LONG TERM CAPITAL GAIN OF RS. 1,83,143/- WA S SHOWN. (II) DURING THE APPELLATE PROCEEDINGS, VIDE THIS OF FICE LETTER DATED 15/02/2017, WHICH IS REPRODUCED AS UNDER, THE AO WA S REQUIRED TO SUBMIT HIS REPORT: IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED U/S 144 OF THE ACT. EVEN, NO COMPLIANCE WAS MADE BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS. HOWEVER, IT IS NOTED THAT TH E APPELLANT HAS FILED A COPY OF SALE DEED DATED 30.08.2007 WHER EIN SMT. GYANWATI DHAKAR HAS SOLD THE PROPERTY AT PLOT. NO. 55A EAST PORTION, HATHI BABU KA BAGH, KANTI NAGAR, JAIPUR FO R AN APPARENT SALE CONSIDERATION OF RS. 45 LAC AND THE L ATE SMT. SEEMA MUKHERJEE WAS JUST MENTIONED AS LGEFRDRKZ . FROM THE SAID SALE DEED, IT APPEARS THAT LATE SMT. SEEMA MUK HERJEE HAD SOLD HER SHARE IN THE PROPERTY UNDER CONSIDERATION TO SMT. GYANWATI DHAKAR IN THE YEAR 1965. ITA 466/JP/2017_ ITO VS. LATE SMT. SEEMA MUKHARJEE 3 THE APPELLANT HAS ALSO FILED A COPY OF COMPUTATION OF INCOME OF SMT. GYANWATI DHAKAR FOR AY 2008-0 9 AND IT APPEARS THAT SHE HAS SHOWN THE SALE OF THE PROPERTY AT RS. 45 LAC TH EREOF. A COPY OF THE SAME IS ENCLOSED HEREWITH. YOU ARE HEREBY DIRECTED TO EXAMINE THE MATERIAL PL ACED ON RELEVANT ASSESSMENT RECORD AND TO SUBMIT THE DOCUME NTARY EVIDENCES, ON THE BASIS OF WHICH, IT HAS BEEN HELD THAT THE APPELLANT HAS SOLD THE PROPERTY UNDER CONSIDERATION FOR WHICH ADDITION HAS BEEN MADE IN THE ASSESSMENT ORDER. (III) VIDE ITS REPORT DATED 23.02.2017 RECEIVED IN THIS OFFICE ON 27/02/2017. IT WAS SUBMITTED BY THE AO THAT: KINDLY REFER TO YOUR LETTER NO. 2005 DATED 15.02. 2017 REQUIRING TO SUBMIT DOCUMENTARY EVIDENCES, ON THE BASIS OF WH ICH, IT HAS BEEN HELD THAT THE APPELLANT HAS SOLD THE PROPERTY UNDER CONSIDERATION FOR WHICH ADDITION HAS BEEN MADE IN THE ASSESSMENT ORDER. AT THE OUTSET, IT IS SUBMITTED THAT THE CASE OF LA TE SMT. SEEMA MUKHERJEE FOR A.Y. 2008-09 WAS COMPLETED U/S 144 OF THE INCOME TAX ACT, 1961 ON THE BASIS OF INFORMATION AV AILABLE ON RECORD. ADDITION OF RS. 87,75,759/- WAS MADE ON ACCOUNT OF LTCTG FOR SALE OF PLOT NO. 55B, HATHI BABU KA BAGH, KANTI NAG AR, JAIPUR TAKING INTO ACCOUNT THE EVALUATED VALUE OF THE PROP ERTY DETERMINED AT RS. 91,42,019/- BY THE ADDL.. COLLECTOR (STAMPS), JAIPUR VIDE HIS ORDER NO. 667/08 DATED 23.09.2011. A COPY OF THE ORDER IS ENCLOSED. SINCE THE ASSESSEE HAD NOT COMPLIED WITH THE REQUI REMENTS OF LEGAL NOTICES ISSUED BY THE DEPARTMENT DESPITE HAVI NG BEEN GIVEN AMPLE OPPORTUNITIES, THE THEN AO WAS CONSTRAI NED TO FINALIZE THE ASSESSMENT IN TERMS OF THE PROVISIONS OF SEC. 144 OF THE ACT IN THE ABSENCE OF ANY EXPLANATION FROM THE ASSESSEE. COPY OF COMPUTATION OF INCOME OF SMT. GYANWATI DHA KAR WAS NOT PRODUCED BEFORE THE AO DURING THE ASSESSMENT, H ENCE IT IS ITA 466/JP/2017_ ITO VS. LATE SMT. SEEMA MUKHARJEE 4 REQUESTED THAT IT SHOULD NOT BE ACCEPTED. COPY OF C OMPUTATION OF INCOME OF SMT. GYANWATI DHAKAR IS ALSO NOT ENCLO SED WITH YOUR KIND LETTER. FURTHER, AN IMPORTANT QUESTION AR ISES - IF SMT. GYANWATI DHAKAR HAD PURCHASED THE AFOREMENTIONED PR OPERTY WAY BACK IN THE YEAR 1965, WHAT WAS THE NEED FOR OB TAINING LATE SMT. SEEMA MUKHERJEE'S CONSENT AT THE TIME OF SALE OF THE PROPERTY ON 30.08.2007. THEREFORE, THE WORD LGEFRDRKZ MENTIONED IN THE SALE DEED IS NOTHING BUT A COLOURA BLE STATEMENT IN THE DEED TO HIDE THE FACT THAT SMT. GY ANWATI DHAKAR SOLD THE PROPERTY AS POWER OF ATTORNEY HOLDE R OF LATE SMT. SEEMA MUKHERJEE. HENCE, THE REAL SELLER WAS LA TE SMT. SEEMA MUKHERJEE AND ACCORDINGLY ADDITION HAS RIGHTL Y BEEN MADE. IT WAS THE ASSESSEE'S ONUS TO PROVE ALL THE F ACTS OF THE CASE DURING THE ASSESSMENT PROCEEDINGS IN WHICH ASS ESSEE'S LEGAL HEIRS HAVE UTTERLY FAILED. IT IS, THEREFORE, HUMBLY REQUESTED THAT THE CONTEN TION OF THE ASSESSEE SHOULD NOT BE ACCEPTED AND ADDITIONS BE UP HELD. (IV) AS INADVERTENTLY, COPY OF THE INCOME TAX RETUR N OF SMT. GYANWATI DHAKHAR FOR AY 2007-08, AS OBTAINED FROM THE CONCER NED AO, COULD NOT BE ENCLOSED WITH THE ABOVE REFERRED LETTER, A C OPY OF THE SAME WAS ALSO PROVIDED TO THE AO. VIDE ITS REMAND REPORT DAT ED 28/02/2017 IT WAS FURTHER SUBMITTED BY THE AO THAT: 'IN CONTINUATION OF THIS OFFICE LETTER NO. 2700 DA TED 23.02.2017, IT IS SUBMITTED THAT THE REOPENED CASE OF LATE SMT. SEEMA MUKHERJEE WAS COMPLETED IN TERMS OF THE PROVISIONS OF SEC. 144 OF THE I. T. ACT, 1961 SINCE NO EXPLANATION ON THE ISSUE OF TAXABILITY OF SEC. 50C OF THE ACT WAS SUBMITTED BY THE ASSESSEE. IN THE ABSENCE OF AN Y EXPLANATION FROM THE SIDE OF THE ASSESSEE ADDITIONS HAVE RIGHTL Y BEEN MADE. NOW, THE ASSESSEE HAS SUBMITTED COMPUTATION OF TOT AL INCOME OF SMT. GYANWATI DHAKAR FOR A.Y. 2008-09 BEFORE YOUR GOOD S ELF IN SUPPORT OF THE CLAIM THAT THE REAL SELLER WAS SMT. GYANWATI DH AKAR AND NOT LATE ITA 466/JP/2017_ ITO VS. LATE SMT. SEEMA MUKHARJEE 5 SMT. SEEMA MUKHERJEE. THIS IS AN ADDITIONAL EVIDENC E WHICH KINDLY MAY NOT BE ACCEPTED. FURTHER, COPY OF ITR OF SMT. G YANWATI DHAKAR FOR A.Y. 2008-09 RECEIVED SHOWS THAT SHE HAD SHOWN CAPITAL GAINS OF RS.183143/- ON SALE OF SOME PROPERTY FOR RS. 45,00, 000/-. THIS SALE CONSIDERATION OF RS. 45,00,000/- INCIDENTALLY RESEM BLES THE SALE CONSIDERATION MENTIONED IN THE SALE DEED DATED 30.8 .2007. IN THE ABSENCE OF ANY EXPLANATION FROM THE ASSESSEE, IT WO ULD BE A SIMPLE ASSUMPTION THAT DUE TAX HAS BEEN PAID BY SMT. GYANW ATI DHAKAR ON THE SAME PROPERTY AS HAS BEEN SOLD BY THE ASSESSEE. (V) IN THE REMAND REPORT, IT WAS SUBMITTED BY THE A O THAT IF SMT. GYANWATI DHAKHAR HAD PURCHASED THE PROPERTY UNDER C ONSIDERATION IN THE YEAR 1965, THEN WHAT WAS THE NEED OF OBTAINING THE SIGNATURE OF SMT. SEEMA MUKHERJEE AS LGEFRDRKZ IN THE SALE DEED DATED 30/08/2007 AND THE MENTIONING OF THE WORD LGEFRDRKZ IN THE SAID SALE DEED IS NOTHING BUT A COLORABLE STATEMENT IN THE DE ED TO HIDE THE FACT THAT GYANWATI DHAKHAR SOLD THE PROPERTY AS POWER OF ATTORNEY HOLDER OF LATE SMT. SEEMA MUKHERJEE. IT WAS FURTHER SUBMIT TED THAT THE REAL SELLER WAS LATE SMT. SEEMA MUKHERJEE AND ACCORDINGL Y, THE ADDITION HAD RIGHTLY BEEN MADE TO THE INCOME OF LATE SMT. SE EMA MUKHERJEE. (VI) I HAVE DULY CONSIDERED THE ASSESSMENT ORDER, REMAND R EPORT OF THE AO AND THE MATERIAL PLACED ON RECORD. IT IS NOTED FROM THE REGISTERED SALE DEED DATED 30.08.2007 THAT THE PROPERTY UNDER CONSI DERATION WAS SOLD BY SMT. GYANWATI DHAKHAR IN ITS OWN CAPACITY A ND NOT AS POWER OF ATTORNEY HOLDER OF LATE SMT. SEEMA MUKHERJEE, AS CLAIMED BY THE AO IN ITS REMAND REPORT. THE CONTENTION OF THE AO T HAT THE MENTIONING THE NAME OF SMT. SEEMA MUKHERJEE IN THE SAID SALE D EED IS A COLORABLE DEVICE IS DEVOID OF ANY MERIT AS NO EVIDENCE WAS SU BMITTED BY THE AO TO SUPPORT SUCH CONTENTION. THE AO COULD NOT BROUGH T ON RECORD THAT ITA 466/JP/2017_ ITO VS. LATE SMT. SEEMA MUKHARJEE 6 ACTUALLY THE FUNDS ARISING OUT OF THE SALE OF PROPE RTY UNDER CONSIDERATION WERE TRANSFERRED OR USED DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF LATE SMT. SEEMA MUKHERJEE. FURTHER, IT I S EVIDENT FROM THE ORDER DATED 23.09.2011 OF ADDL. COLLECTOR (STAMPS), AS PROVIDED BY THE AO, THAT THE PROPERTY UNDER CONSIDERATION WAS PURCH ASED BY SMT. GYANWATI DHAKHAR ON 15.04.1965 THROUGH AGREEMENT TO SELL ON WHICH STAMP DUTY WAS NOT PAID AT THAT POINT OF TIME AND C ONSEQUENTLY, VIDE ABOVE REFERRED ORDER, THE PROPERTY, FOR THE SALE TR ANSACTION ON 15.04.1965 WAS VALUED AT RS. 91,42,019/- ON 30.08.2 007 FOR THE PURPOSE OF CHARGING STAMP DUTY. THUS, IT IS EVIDENT FROM THE ABOVE REFERRED ORDER OF THE ADDL. COLLECTOR (STAMPS) THAT THE PROPERTY UNDER CONSIDERATION WAS SOLD BY LATE SMT. SEEMA MUKHERJEE TO SMT. GYANWATI DHAKHAR ON 15.04.1965. IT MAY BE MENTIONED THAT IT IS A VERY COMMON PRACTICE IN REAL ESTATE TRANSACTIONS NO T TO GET REGISTER THE AGREEMENT TO SELL WITH THE SUB REGISTRAR IN ORD ER TO AVOID PAYMENT OF STAMP DUTY AND THE CONSENT OF THE ORIGINAL SELLE R IS TAKEN IN THE SALE DEED TO AVOID ANY DISPUTE TO THE TITLE OF THE PROPE RTY AT A LATER STAGE. (VII) FURTHER, IT IS EVIDENT FROM THE INCOME TAX RE TURN OF SMT. GYANWATI DHAKHAR FOR THE AY 2008-09 THAT WHILE COMPUTING THE CAPITAL GAINS, SHE HAD DECLARED SALE CONSIDERATION AT RS. 45 LAC A ND HAD SHOWN LONG TERM CAPITAL GAIN AT RS. 1,83,143/-. IT WAS THE CON TENTION OF THE AO THAT IT COULD NOT BE VERIFIED THAT THE SALE CONSIDE RATION SHOWN IS RELATED TO THE PROPERTY UNDER CONSIDERATION. IT IS MATTER OF FACT THAT IN THE REGISTERED SALE DEED DATED 30.08.2007, THE SALE CONSIDERATION WAS STATED AT RS. 45 LAC ONLY AND IN THE COMPUTATION OF CAPITAL GAINS, SMT. GYANWATI DHAKAR HAS STATED THE SALE CONSIDERATION A T RS. 45 LAC ONLY. (VIII) EVEN OTHERWISE, INDEPENDENT OF THE COMPUTATI ON OF INCOME OF SMT. GYANWATI DHAKAR FOR THE AY 2008-09 , IT IS EVIDENT THAT THE PROPERTY ITA 466/JP/2017_ ITO VS. LATE SMT. SEEMA MUKHARJEE 7 WAS NOT SOLD BY THE APPELLANT AS THE AO HAS FAILED TO BROUGHT ON RECORD THAT THE SALE CONSIDERATION OF RS. 45 LAC WA S RECEIVED BY THE APPELLANT OR USED DIRECTLY OR INDIRECTLY FOR ITS BE NEFIT AND ALSO IN VIEW OF THE ORDER OF ADDL. COLLECTOR (STAMPS), IT IS HEL D THAT THE AO WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.87,75,759/- TO T HE INCOME OF THE DECEASED SEEMA MUKHERJEE THROUGH HER LEGAL HEIRS AS LONG TERM CAPITAL GAIN AS THE PROPERTY WAS NOT SOLD BY SMT. S EEMA MUKHERJEE DURING THE YEAR UNDER CONSIDERATION. IN MY OPINION, IF ANY ADDITION WAS REQUIRED TO BE MADE AND THAT TOO U/S 50C OF THE ACT, IT SHOULD HAVE BEEN MADE IN THE HANDS OF SMT. GYANWATI DHAKHA R AND NOT IN THE HANDS OF THE APPELLANT. HENCE, THE ADDITION OF RS. 87,75,759/- MADE BY THE AO IS HEREBY DELETED. THE ISSUE HAS BEEN ELABORATELY DEALT BY THE LD. CIT( A) IN HIS ORDER. IT HAS BEEN CLEARLY MENTIONED THAT THE CAPITAL GAIN INCOME HAS BEEN DECLARED IN THE RETURN OF INCOME OF SMT. GYANWATI DHAKAR, WHO HAS ACTUALLY SOLD THIS PROPERTY. THE ASSESSEE HAS JUST SIGNED AS A CONFIRMI NG PARTY. CONSIDERING ALL THESE FACTS AND ALSO THE FACTS RECO RDED BY THE LD. CIT(A), WHICH THE LD. DR WAS NOT ABLE TO CONTROVERT THE SAME , THEREFORE, THE BENCH UPHOLD THE ORDER OF THE LD. CIT(A) ON THIS ISS UE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/01/2018. SD/- SD/- FOT; IKY JKO FOT; IKY JKO FOT; IKY JKO FOT; IKY JKO HKKXPAN HKKXPAN HKKXPAN HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04 TH JANUARY, 2018. ITA 466/JP/2017_ ITO VS. LATE SMT. SEEMA MUKHARJEE 8 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, WARD 3(2), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- LATE SMT. SEEMA MUKHARJEE, THROUGH L /H SHRI ALOOK MUKHARJEE, JAIPUR. 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. 466/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR