ITO, Ward-4(2), Bhubaneswar V. Tilotama Mishra, Bhubaneswar

ITA 480/CTK/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5624 (ITAT-CUTTACK)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 01-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D.K.PRADHAN
• Section: 201

Judgement Text

1 ITA NO.480/CTK/2017 ASSESSMENT YEAR : 2015 - 2016 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 480 /CTK/201 7 ASSESSMENT YEAR : 201 5 - 2016 INCOME TAX OFFICER, WARD - 4(2), BHUBANESWAR. VS. SMT. TILOTAMA MISHRA, PLOT NO.A/124, SAHEED NAGAR, BHUBANESWAR. PAN/GIR NO. CZNPM 3072 N (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 1 7 / 0 5 / 201 8 DATE OF PRONOUNCEMENT : / 0 5 / 201 8 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) - 2, BHUBANESWAR DATED 30.8.2017 FOR THE ASSESSMENT YEAR 2015 - 16. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1 . THE ORDER OF THE LD. CIT(A) IS ERRONEOUS BOTH IN FACTS AND IN LAW. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE ENTIRE ADDITION OF RS.51,18,920/ - MADE BY THE AO TOWARDS INCOME UNDER THE HEAD 'LONG TERM CAPITAL GAIN' ARISING FROM SALE/TRANSFER OF IMMOVABLE PROPERTY MADE DURING THE PREVIOUS YEAR RELEVANT TO A.Y. 2015 - 16. 2.1 THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT AS PER REGISTERED SALE DEED DATED 07.03.2015, THE ASSESSEE WAS OWNER OF 1 /5 TH SH ARE OF THE IMMOVABLE PROPERTY TRANSFERRED DURING THE YEAR, AND THUS 2 ITA NO.480/CTK/2017 ASSESSMENT YEAR : 2015 - 2016 SHE IS LIABLE FOR TAXATION OF INCOME, IN RESPECT OF HER SHARE FROM THE SALE CONSIDERATION RECEIVED FROM THAT PROPERTY. 2.2 THE LD.CLT(A) OUGHT TO HAVE APPRECIATED THAT AS PER THE DECISIO N OF THE HON'BLE SUPREME COURT IN THE CASE OF ITO V.CH.ATCHAIAH: 218 ITR 239(SC), IT WAS HELD THAT 'MERELY BECAUSE A WRONG PERSON IS TAXED WITH RESPECT TO A PARTICULAR INCOME, THE AO IS NOT PRECLUDED FROM TAXING THE RIGHT PERSON WITH RESPECT TO THAT INCOME ', AND THUS HE OUGHT TO HAVE UPHELD THE ADDITION MADE BY THE AO TOWARDS INCOME FROM LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. 3. WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE APPEARED ON BEHALF OF RESPONDENT - ASSESSEE. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS SOLD PROPERTY AT RS.4,21,00,000/ - . BEFORE THE ASSESSING OFFICER, IT WAS SUBMITTED THAT ALONGWITH THE ASSESSEE, HER FOUR SONS ARE THE LEGAL HEIRS TO THE PROPERTY, BUT HE R THREE SONS BEING JOINT OWNERS HAVE RECEIVED THE ENTIRE SALE CONSIDERATION OF RS.4,21,00,000/ - AND THEY HAVE PAID TAX ON IT. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND OBSERVED THAT EVEN THOUGH THE ASSESSEE DID NOT R ECEIVE ANY MONEY, BUT HE WAS ONE OF THE LEGAL HEIRS AND MADE THE ENTIRE CONSIDERATION OF RS.4,21,00,000/ - IN THE HANDS OF THE ASSESSEE. 5. BEFORE THE CIT(A), THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER, WHICH ARE REPRODUCED A T PAGES 3 - 7 OF THE ORDER OF THE CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE CIT(A) DELETED THE ADDITION BY OBSERVING AS UNDER: I HAVE CAREFULLY EXAMINED THE ASSESSMENT ORDER AS WELL AS THE WRITTEN SUBMISSIONS OF THE APPELLANT. I FIND THAT THE THREE CO - 3 ITA NO.480/CTK/2017 ASSESSMENT YEAR : 2015 - 2016 OWNERS HAVE DECLARED THE SALE CONSIDERATION IN THEIR NAME AND HAVE FILED THE RETURN OF INCOME AND HAVE PAID THE CAPITAL GAIN TAX. THE APPELLANT BEING THE MOTHER OF FOUR SONS AND BEING SUPER SENIOR CITIZEN OF 88 YEARS OLD HAS RELINQUISHED HER RIGHTS IN THE PROPERTY IN FAVOUR OF THREE CO - OWNERS, WHO HAVE PAID THE CAPITAL GAIN TAX, WHICH HAS NOT BEEN DISPUTED BY THE AO. FURTHER, THE DEPARTMENT HAS NOT LOST ANY CAPITAL GAIN TAX AS IT HAS BEEN FULLY PAID BY THE THEE CO - OWNERS. MOREOVER, IF T HE FIVE CO - OWNERS WERE TO BE FORCIBLY SUBJECTED TO TAX, DEPARTMENT WILL STAND TO LOSSE THE REVENUE WHEN COMPARED TO THE EXISTING ARRANGEMENT IN WHICH THE THREE CO - OWNERS HAVE PAID THE ENTIRE CAPITAL GAIN TAX. CONSIDERING THE ABOVE, THE ADDITION MADE BY TH E AO OF RS.51,18,920/ - IS ORDERED TO BE DELETED AND THE GROUNDS OF APPEAL ARE ALLOWED. 6. AFTER CONSIDERING THE SUBMISSION OF LD D.R. WE FIND THAT THE CIT(A) AFTER CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE HAS DELETED THE ADDITION OF RS .51,18,920/ - . NO COGENT AND POSITIVE MATERIAL HAS BEEN BROUGHT ON RECORD BY LD D.R. TO CONTROVERT THE FINDINGS OF THE CIT(A) THAT THE THREE CO - OWNERS HAVE ALREADY PAID THE ENTIRE CAPITAL GAIN TAX. HENCE, WE FIND NO GOOD REASON TO INTERFERE WITH THE ORDER OF THE CIT(A), WHICH IS HEREBY CONFIRMED AND GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 17 / 0 5 /201 8 . SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 17 / 0 5 /201 8 B.K.PARIDA, SPS 4 ITA NO.480/CTK/2017 ASSESSMENT YEAR : 2015 - 2016 COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT: INCOME TAX OFFICER, WARD - 4(2), BHUBANESWAR. 2. THE RESPONDENT. SMT. TILOTAMA MISHRA, PLOT NO.A/124, SAHEED NAGAR, BHUBANESWAR 3. THE CIT(A) - 2, BHUBANESWAR 4. PR.CIT - 2, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//