Smt. Krishna Khandelwal, Indore V. The Income Tax Officer, Wd. 2(2), Indore

ITA 476/IND/2010

• Counselvise Citation: 47622714 RSA 2010
• Duration Of Justice: 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 14-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: ANIL KHANDELWAL
• Keywords: Income from undisclosed sources; Capital receipt
• Section: 143(3); 69; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARMA, A.M. PAN NO. : ADUPK0905H I.T.A.NO. 476 / IND /20 10 A.Y. : 2006 - 07 SMT. KRISHNA KHANDELWAL, ITO, WARD 2(2), 23, GULMOHAR EXTENSION, V S INDORE. INDORE APPELLANT RESPONDENT APPELLANT BY : SHRI ANIL KHANDELWAL, C. A. RESPONDENT BY : SHRI ARUN DEWAN, SR. DR O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 1.12 .2009 FOR THE ASSESSMENT YEAR 2006 - 07, IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME - TAX ACT, 1961. 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO TREATMENT OF RS. 6,04,000/ - RECEIVED BY THE ASSESSEE AS REVENUE RECEIPT IN PLACE OF CAPITAL RECEIPT A S OFFERED BY THE ASSESSEE. - : 2 : - 2 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. THE ASSESSEE OFFERED IN ITS RETURN OF INCOME, A SUM OF RS. 6,04,000/ - AS A CAPITAL RECEIPT AND CLAIMED EXEMPTION FOR ITS INVESTMENT IN PURCHASE OF REC BOND U/S 54 EC OF THE INCOME - TAX ACT, 1961. 4. THE AO DECLINED ASSESSEE S CLAIM. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT IN THE COMPUTATION OF INCOME ASSESSEE HAS SHOWN INCOME FROM LONG TERM CAPITAL GAIN. AFTER SECURITY OF THE DOCUMENTS IT WAS SEEN THAT MANGLIA SADAK LAND WA S SOLD FOR AN AMOUNT OF RS. 6,04,000/ - ON 27.10.05. ON VERIFICATION OF THE SALE DEED IT IS FOUND THAT NAMES OF THE SELLERS ARE SHRI INDRA KUMAR KANDWLWAL AND SHRI SURESH KUMAR KHANDELWAL, WHEREAS THE NAME OF ASSESSEE SMT. KRISHNA KHANDELWAL APPEARS AS A C ONSENTER (SAHAMATIDATA). ON BEING ASKED IT IS SEEN THAT YOU HAVE SHOWN SALE OF AGRICULTURAL LAND INDICATING THAT YOU ARE ONLY CONSENTER (SAHAMATIDATA). FROM THIS IT IS PROVED THAT YOU HAVE NOT SOLD THE PROPERTY OWNED BY YOU AND HAVE SHOWN RECEIPT OF RS. 6 LACS OUT OF THE SAME. WHY IT SHOULD NOT BE TREATED AS RECEIPT/SALE FROM THER SOURCES. IN REPLY IT HAS BEEN - : 3 : - 3 SUBMITTED THAT IN ONE OF THE FOUR SALE DEEDS EXECUTED BY THE ASSESSEE, SHE HAS SIGNED IN THE CAPACITY AS CONSENTER BECAUSE EARLIER SHE HAD SOL D THAT PARTICULAR PIECE OF LAND WAY BACK IN THE YEAR 1997 AND IMMEDIATELY, SHE REPURCHASED THE SAME AND TAKEN POSSESSION THROUGH AN AGREEMENT. HOWEVER, THE DEED REMAINED IN THE NAME OF THE BUYER WITH A COMMITMENT TO SIGN WHE N EVER ASSESSEE WILL SALE THAT LA ND. HENCE, ASSESSEE S NAME IS APPEARING AS THE CONSENTER ALTHOUGH SHE IS THE ACTUAL SELLER OF THAT PIECE OF LAND. ASSESSEE S SUBMISSION IS NOT ACCEPTABLE. IT IS VERY MUCH CLEAR FROM THE DOCUMENT THAT LEGALLY ASSESSEE WAS NOT THE OWNER OF THAT LAND AND THE NAMES OF TWO OWNERS SHRI INDRA KUMAR KANDELWAL AND SHRI SURESH KUMAR KHANDELWAL, R/O PUSHPAK BUILDING, GULMOHAR CROSS ROAD, JVPD, MUMBAI FAFFE AAM MUKHTIAR SHRI DIPES S/O SHRI GOVIND KHANDELWAL ARE APPEARING IN THE SALE DEED. IT IS APPARENT FROM THE SALE DEED SUBMITTED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT SHE IS ONLY SHAMATIDATA AND NOT THE OWNER OF THE LAND. THEREFORE, THERE WILL BE NO CAPITAL GAIN ARISING FORM THE SALE OF THIS LAND. IN THIS REGARD ASSESSEE HAS INVESTED - : 4 : - 4 THE AMOUNT OF RS. 6,04,000/ - IN PURCHASE OF OTHER PROPERTY/REC BONDS WHICH IS NOT EXPLAINED BY THE ASSESSEE, THEREFORE, THE SAME WILL BE TREATED AS INCOME FROM UNDISCLOSED SOURCES U/S 69 OF THE INCOME - TAX ACT, 1961, BEING OTHER INCOME OF THE ASSESSEE. 5. BY THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO AND ASSESSEE IS IN FURTHER APPEAL BEFORE US. 6. IT WAS CONTENDED BY THE LD. AUTHORIZED REPRESENTATIVE SHRI ANIL KHANDELWAL , C. A. THAT THE ASSESSEE HAS ALL THE RIGHTS IN RESPECT OF THE AGRICULTURAL LAND SOLD BY HER, THEREFORE, THE SALE PROCEEDS RECEIVED BY HER AMOUNTING TO RS. 6,04,000/ - , WHICH WAS DEPOSITED IN HER SAVING BANK ACCOUNT AND SUBSEQUENT INVESTED IN REC BOND SHOULD BE ALLOWED AS A DEDUCTION U/S 54EC. 7. ON THE OTHER HAND, THE LD. SENIOR D.R . RELIED ON THE ORDER OF THE LOWER AUTHORITIES AND CONTENDED THAT THE ASSESSEE HAS ALREADY SOLD HER LAND LONG BACK AND IN THE PRESENT SALE DEED THROUGH WHICH THE AMOUNT IS ALLEGED TO BE RECEIVED WAS SIGNED BY HER AS CONSENTER AND NOT AS SELLER. - : 5 : - 5 8. WE HAVE CON SIDERED THE RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM RECORD THAT DURING THE YEAR UNDER CONSIDERATION, THE LAND WAS SOLD BY SHRI INDRA KUMAR KHANDELWAL AND SHRI SURESH KUMAR KHANDELWAL AND THE SAID SALE DEED WAS SIGNED BY THE ASSESSEE AS CONSENTER. I N THE SALE DEED ALSO SHRI INDRA KUMAR KHANDELWAL AND SHRI SURESH KUMAR KHANDELWAL WERE REFERRED TO AS A SELLER AND OWNER OF THE LAND. IT WAS ALSO FOUND THAT THE ASSESSEE HAD SOLD A PIECE OF LAND IN DECEMBER, 1993. IN SUPPORT OF THE SUBMISSION THAT SHE HAD PURCHASED BACK THE SAID LAND BY EXECUTING AN AGREEMENT WAS NOT FILED EITHER BEFORE THE AO OR CIT(A) NOR BEFORE US. THUS, THE ASSESSEE WAS UNABLE TO ESTABLISH THAT THE SAID PIECE OF LAND WAS REPURCHASED BY HE R AS PER FAMILY ARRANGEMENT. SINCE THE ASSESSEE WAS NOT THE OWNER OF THE LAND, HENCE, THE AMOUNT SO RECEIVED ON SALE OF SUCH LAND IN WHICH SHE WAS ONLY CONSENTER AND NOT THE SELLER NOR THE OWNER OF THE LAND, THERE IS NO REASON TO TREAT THE AMOUNT SO RECEIV ED AS CAPITAL RECEIPTS IN THE HANDS OF THE ASSESSEE. SINCE IT WAS NOT CAPITAL RECEIPT, THERE IS NO REASON TO ALLOW EXEMPTION FOR INVESTMENT OF SUCH CAPITAL - : 6 : - 6 GAINS IN PURCHASE OF REC BOND U/S 54EC. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT (A) FOR TREATING THE AMOUNT SO RECEIVED AS INCOME FROM OTHER SOURCES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE , 2011. SD/ - SD/ - (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMB ER ACCOUNTANT MEMBER DATED : 30 TH JUNE , 2011 . CPU* 306