Yogesh Malhotra, Bareilly V. Dy. Commissioner of Income Tax, Circle-2, Bareilly

ITA 479/LKW/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7634 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 31-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHINAV MEHROTRA S HRI C K
• Keywords: Application of stay

Judgement Text

I.T.A. NO.479/LKW/2017 S.P.NO.06/LKW/2018 ASSESSMENT YEAR:2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.479/LKW/2017 ASSESSMENT YEAR:2013-14 & STAY APPLICATION NO.06/LKW/2018 (IN ITA NO.479/LKW/2017) ASSESSMENT YEAR:2013-14 SHRI YOGESH MALHOTRA, K-1/35, RAMPUR GARDEN, CIVIL LINES, BAREILLY. PAN:AAWPM 0075 D VS. DY.C.I.T., CIRCLE-2, BAREILLY. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A), BAREILLY DATED 15/03/2017 PERTAINING TO ASS ESSMENT YEAR 2013-2014. IN THIS APPEAL THE ASSESSEE HAS TAKEN VARIOUS GROUN DS OF APPEAL HOWEVER, THE CRUX OF GROUNDS OF APPEAL IS THE SUSTENANCE OF ADDITION WHICH THE ASSESSING OFFICER HAD MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN AND ALSO ON ACCOUNT OF DEPOSITS IN THE BANK ACCOUNT. APPELLANT BY SHRI ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY S HRI C. K. SINGH, D.R. DATE OF HEARING 09/01/2019 DATE OF PRONOUNCEMENT 11/01/2019 I.T.A. NO.479/LKW/2017 S.P.NO.06/LKW/2018 ASSESSMENT YEAR:2013-14 2 2. LEARNED A. R., AT THE OUTSET, SUBMITTED THAT ASS ESSEE WAS A POWER OF ATTORNEY HOLDER OF ONE PROPERTY OWNED BY SHRI MOHAN DHINGRA WHICH HE HAD SOLD ON HIS BEHALF AND ON A WRONG ADVICE GIVEN BY T HE COUNSEL, HE INCLUDED THE CAPITAL GAIN ON SUCH PROPERTY IN HIS INCOME WHE REAS THE ORIGINAL OWNER SHRI MOHAN DHINGRA HAD ALREADY DECLARED THE INCOME FROM THE CAPITAL GAIN OF THE SAME PROPERTY IN HIS RETURN OF INCOME AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO PAGES 14 TO 21 OF THE PAPE R BOOK WHERE COPY OF PROCEEDINGS IN THE CASE OF SHRI MOHAN DHINGRA REGAR DING SALE OF SUCH PROPERTY WAS PLACED. LEARNED A. R. INVITED OUR ATT ENTION TO PAGE NO. 14 OF THE PAPER BOOK TO HIGHLIGHT THAT SHRI MOHAN DHINGRA HAD RECEIVED THE NOTICE FOR EXPLAINING FOR SALE OF IMMOVABLE PROPERTY VALUI NG AT RS.1,22,66,000/- AND SHRI MOHAN DHINGRA HAD REPLIED TO SUCH NOTICE, A COPY OF SUCH REPLY WAS PLACED AT PAGES 15 TO 17 OF THE PAPER BOOK. OU R ATTENTION WAS ALSO INVITED TO COPY OF COMPUTATION PLACED AT PAGE NO. 1 9 OF THE PAPER BOOK WHERE SHRI MOHAN DHINGRA HAD DECLARED THE CAPITAL G AIN ON THIS PROPERTY AND FURTHER OUR ATTENTION WAS INVITED TO THE LETTER DATED 28/03/2018 WRITTEN BY INCOME TAX OFFICER, WARD-1(3) TO SHRI MOHAN DHIN GRA WHEREIN HE HAD ACCEPTED THE FACT THAT THIS PROPERTY WAS SOLD BY SH RI YOGESH MALHOTRA, THE ASSESSEE IN THE PRESENT CASE ON HIS BEHALF AND HAS FURTHER HELD THAT THIS TRANSACTION HAS BEEN DULY DISCLOSED IN YOUR COMPUTA TION OF INCOME. THEREFORE, IN VIEW OF THESE FACTS, LEARNED A. R. SU BMITTED THAT THE MATTER NEEDS TO BE REMANDED BACK TO THE ASSESSING OFFICER WHO, AFTER GOING INTO DETAIL, HAS TO PASS A FRESH ORDER AS THE SAME INCOM E CANNOT BE ASSESSABLE IN THE HANDS OF THE TWO ASSESSEES. 2.1 REGARDING OTHER ADDITION ON ACCOUNT OF DEPOSITS IN THE BANKS, LEARNED A. R. SUBMITTED THAT THE ASSESSEE, WHO HAD SOLD THE PROPERTY ON BEHALF OF SHRI MOHAN DHINGRA, HAD RECEIVED THE PAYMENTS OF PR OPERTY IN CASH AND HAD DEPOSITED THE AMOUNTS IN HIS BANK ACCOUNTS AND LATE R ON, AFTER WITHDRAWAL I.T.A. NO.479/LKW/2017 S.P.NO.06/LKW/2018 ASSESSMENT YEAR:2013-14 3 FROM THE BANK, HAD GIVEN THE SAME TO THE REAL OWNER OF THE PROPERTY I.E. SHRI MOHAN DHINGRA. IT WAS ARGUED THAT THIS ADDITI ON ALSO RELATED TO THE EARLIER ADDITION AS THE PROCEEDS WERE FROM THE SALE OF SAME PROPERTY THEREFORE, IT WAS PRAYED THAT THIS GROUND BE ALSO R EMANDED TO THE ASSESSING OFFICER. 3. LEARNED D. R., ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ASSESSEE, ON I TS OWN, AS POWER OF ATTORNEY HOLDER, DECLARED THE LONG TERM CAPITAL GAI N ON SALE OF LAND AND DECLARED CAPITAL GAIN TO THE EXTENT OF RS.12,13,345 /-. WE FURTHER FIND THAT SHRI MOHAN DHINGRA, WHO WAS ACTUAL OWNER OF THE PRO PERTY, WAS ALSO SHOW CAUSED REGARDING SALE OF THIS PROPERTY AND A COPY O F NOTICE DATED 09/01/2018 IS PLACED AT PAGE 18 OF THE PAPER BOOK, THE REPLY OF SHRI MOHAN DHINGRA IS PLACED AT PAGES 15 TO 17 OF THE PAPER BO OK AND THE COPY OF RETURN ALONG WITH COMPUTATION OF INCOME IS PLACED A T PAGES 18 TO 20 OF THE PAPER BOOK AND COPY OF LETTER WRITTEN BY INCOME TAX OFFICER, WARD-1(3) ACCEPTING THE CLAIM OF SHRI MOHAN DHINGRA THAT HE H AD INCLUDED THE LONG TERM CAPITAL GAIN ON THE SALE MADE THROUGH HIS POWE R OF ATTORNEY HOLDER SHRI YOGESH MALHOTRA, WAS RIGHTLY DECLARED IN HIS R ETURN OF INCOME. ALL THESE FACTS NEED FACTUAL VERIFICATION. THEREFORE, WE DEEM IT APPROPRIATE TO REMIT THE ISSUE BACK TO THE ASSESSING OFFICER WHO S HOULD PASS A FRESH ASSESSMENT ORDER AFTER ASCERTAINING THE ENTIRE FACT S AND CIRCUMSTANCES. THE OTHER ADDITION WITH RESPECT TO DEPOSITS IN BANK ACC OUNTS IS ALSO REMITTED TO THE ASSESSING OFFICER AS IT IS ALSO RELATED TO THE SALE MADE BY THE ASSESSEE AS POWER OF ATTORNEY HOLDER. THE ASSESSING OFFICER SHOULD CO-RELATE THE SALE CONSIDERATION AND DATE OF RECEIPT OF SALE CONSIDERA TION AND DEPOSIT IN THE I.T.A. NO.479/LKW/2017 S.P.NO.06/LKW/2018 ASSESSMENT YEAR:2013-14 4 RELEVANT BANK ACCOUNT AND THEN WITHDRAWALS FROM THI S BANK ACCOUNT TO THE REAL OWNER OF THE PROPERTY. NEEDLESS TO SAY THAT T HE ASSESSEE WILL BE PROVIDED REASONABLE AND SUFFICIENT OPPORTUNITY OF B EING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. SINCE WE HAVE DECIDED THE APPEAL THEREFO RE, THE STAY APPLICATION IS DISMISSED AS HAVING BECOME INFRUCTUOUS. (ORDER PRONOUNCED IN THE OPEN COURT ON 11/01/2019) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:11/01/2019 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSISTANT REGISTRAR