I.T.O Wd - 2(2),Hooghly., Hooghly V. Shri Snehangshu Mondal., Hooghly

ITA 55/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4941 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 29-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-01-2013
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS JCIT LD
• Keywords: Unexplained investment; Assessment record
• Section: 143(3)

Judgement Text

ITA NO.55/KOL/2013- C-AM SHRI SNEHANGSHU MONDAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI MAHAVIR SINGH, JUDICIAL MEMBER , AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 55/KOL/2013 A.Y 2009-10 I.T.O WARD 2(2), HOOGHLY VS. SHRI SNEHANG SHU MONDAL PAN: AEKPM 8 540H (APPELLANT) (R ESPONDENT) C.O NO. 23/KOL/2013 [ ARISING OUT OF ITA NO. 55/KOL/2013 A.Y 2009-10 SHRI SNEHANGSHU MONDAL VS. I.T.O WARD 2(2 ), HOOGHLY (CROSS OBJECTOR/ASSESSEE) (RESPONDENT) FOR THE APPELLANT/DEPARTMENT: SMT. R ANU BISWAS, JCIT, LD.SR.DR FOR THE CROSS OBJECTOR/ASSESSEE: SHRI SOUMITRA CHOUDHURY, ADVOCATE LD.AR DATE OF HEARING: 29-02-2016 DATE OF PRONOUNCEMENT: 02 -03 -2 016 ORDER SHRI M.BALAGANESH, AM THIS APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARISE OUT OF THE ORDER OF THE LEARNED CIT(A)-XXXVI, KOLKATA IN APPEA L NO.301/CIT(A)- XXXVI/KOL/WD. 2(2), HG./2011-12/1445 DATED 30-10-20 12 FOR THE ASSESSMENT YEAR 2009-10 AGAINST THE ORDER OF ASSESSMENT FRAMED BY THE LD.AO U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT). 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER CAPITAL GAIN IN RESPECT OF A PROPERTY IN THE NAME OF M/S. R.S CONST RUCTION, A PARTNERSHIP FIRM, COULD BE ASSESSED IN THE HANDS OF THE ASSESSEE IN THE F ACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.55/KOL/2013- C-AM SHRI SNEHANGSHU MONDAL 2 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASS ESSEE IS IN INDIVIDUAL AND DERIVING INCOME FROM MARRIAGE HALL, INCOME FROM PARTNERSHIP FIRM, INCOME FROM SUPPLY OF ORDERS AND INCOME FROM OTHER SOURCES. THE ASSESSEE IS A PARTNER IN A PARTNERSHIP FIRM STYLED AS M/S. R.S CONSTRUCTION. THE ASSESSEE POSS ESSED A PROPERTY, WHICH WAS TRANSFERRED TO THE SAID PARTNERSHIP FIRM, M/S. R.S CONSTRUCTION ON 13-02-2006. THE SAID PROPERTY WAS SOLD BY M/S. R.S CONSTRUCTION DUR ING THE ASSESSMENT YEAR UNDER APPEAL. THE SALE DEED FOR THE SAME WAS EXECUTED BY THE ASSESSEE FOR AND ON BEHALF OF THE SAID PARTNERSHIP FIRM. BUT IN THE SALE DEED TH E ASSESSEES NAME WAS MENTIONED. THE SAID PARTNERSHIP FIRM HAD DULY DISCLOSED THE S ALE OF FLATS IN ITS P & L ACCOUNT AND PAID TAXES THEREON IN THE ASSESSMENT YEAR UNDER AP PEAL. SINCE THE NAME OF THE ASSESSEE WAS FOUND IN THE SALE DEED, THE LD.AO BROU GHT THE CAPITAL GAINS ARISING OUT OF THE PROPERTY TO TAX, IN THE HANDS OF THE ASSESSEE. ON 1 ST APPEAL, THE LD.CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND EVI DENCES AVAILABLE ON RECORD, DELETED THE IMPUGNED ADDITION AS MADE BY THE LD.AO. AGGRIE VED, THE REVENUE IS IN APPEAL BEFORE US. 4. THE LD.DR VEHEMENTLY SUPPORTED THE ORDER OF THE LD.AO IN MAKING THE IMPUGNED ADDITION. IN RESPONSE TO THIS, THE LD.AR ARGUED THA T THE ADDL. DISTRICT SUB-REGISTRAR HAD DULY GIVEN A CERTIFICATE TO THE DISTRICT REGIS TRAR TO THIS EFFECT, WHICH WAS AVAILABLE IN THE ASSESSEES PAPER BOOK AT PAGE 5, WHEREIN IT HAS BEEN CATEGORICALLY MENTIONED THAT NAME OF SRI SNEHANGSHU MONDAL, ( TH E ASSESSEE HEREIN) HAS BEEN INADVERTENTLY AND ERRONEOUSLY SHOWN IN THE SALE DEE D INSTEAD OF STATING THAT ASSESSEE HAD SIGNED ON BEHALF OF M/S. R.S CONSTRUCTION, A PA RTNERSHIP FIRM. HE ALSO ARGUED THAT THE PARTNERSHIP FIRM HAD DULY DISCLOSED THE BUSINES S INCOME IN ITS RETURN OF INCOME ARISING OUT OF SALE OF THE SUBJECT MENTIONED FLATS AND PAID THE TAXES THEREON. WHILE THIS IS SO, ASSESSING THE SAME AS CAPITAL GAINS IN RESPE CT OF THE SAME PROPERTY IN THE HANDS OF THE ASSESSEE WOULD ONLY RESULT IN DOUBLE TAXAT ION AND ACCORDINGLY PRAYED BEFORE US FOR CONFIRMATION OF THE ORDER OF THE LD.CIT(A). ITA NO.55/KOL/2013- C-AM SHRI SNEHANGSHU MONDAL 3 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PAPER BOOK FILED BY THE ASSESS EE. WE FIND FROM PAGE 5 OF THE PAPER BOOK A LETTER OF ADDL. DISTRICT SUB-REGISTR AR, CHUNSURAH, HOOGHLY DATED 26- 09-2011 ADDRESSED TO THE DISTRICT REGISTRAR, CHINSU RAH, HOOGHLY, WHICH IS REPRODUCED HEREIN BELOW FOR THE SAKE OF CONVENIENCE:- GOVERNMENT OF WEST BENGAL OFFICE OFF THE ADDL. DIST. SUB-REGISTRAR, CHINSUR AH P.O. - CHINSURAH, DIST. - HOOGHLY. MEMO NO. 393 DATE ... 26.09.2011 TO THE DISTRICT REGISTRAR, HOOGHLY, P.O CHINSURAH, DIST. HOOGHLY. SUB:- SRI SNEHANGSU MONDAL, SLO SRI SISIR MONDAL OF SAROJINI KAMARPARA ROAD, P.O. & P.S. CHINSURAH, DIST. HOOGHLY. PAN AEKPM 8540H. ********** SIR, WITH REFERENCE TO THE LETTER OF SRI SNEHANGSU MOND AL DATED 23/09/2011 ON TITLE ABOVE SUBJECT AS ADDRESSE D TO YOU AND AS PER YOUR INSTRUCTION ON THAT LETTER. I HAVE THE HONOUR TO INFORM YOU THAT NAME OF SRI SNEHANGSU MONDAL HAS INADVERTENTLY AND ERRONEOUSLY BEEN SHOWN AS THE SEL LER OR THE PURCHASER HIMSELF BUT SRI SNEHANGSHU MONDAL HAD SOLD AND PURCHASED THOSE PROPERTIES ON BEHALF OF THE R.S . CON STRUCTION, A PARTNERSHIP FIRM. YOURS FAITHFULLY, SD/- ADDL. DIST. SUB-REGISTRAR CHUNSURAH, HOOGHLY MEMO NO. 393(2) DATE 26.09.11 COPY FORWARDED FOR INFORMATION AND TAKING NECESSARY ACTION TO:- 1) SRI SNEHANGSHU MONDAL S/O SRI SISIR MONDAL, ITA NO.55/KOL/2013- C-AM SHRI SNEHANGSHU MONDAL 4 SAROJINI KAMARPARA, P.O & P.S CHINSURAH, HOOGHLY. 2) SRI UTPAL CHAKRABORTY, I.T.O. WARD - 2(2}, HOOGHLY, 3RD FLOOR, ROOM NO. 30 9, AAYKAR BHAWAN, KHADINA MORE, G.T. ROAD, CHIRISURAH, HOOGHLY. SD/- 26/09/11 ADDL. DIST. SUB-REGISTRA R SADAR, HOOGHLY. IN THESE WE FIND THAT THE LD.CIT(A) HAD DELETED THE IMPUGNED ADDITION BY OBSERVING AS UNDER:- THE APPELLANT FILED WRITTEN SUBMISSIONS DATED 14/05 /2012 AND 09/07/2012 ALONG WITH PAPER BOOKS. IN THE WRITTEN S UBMISSIONS THE APPELLANT SUBMITTED THAT THE FLATS WERE CONSTRUCTED BY PARTNERSHIP FIRM NAMELY '.S. CONSTRUCTION'. COPIES OF BALANCE SHEET, PROFIT & LOSS ACCOUNT AND BANK STATEMENTS WERE FILED. THE APPELLANT ALSO FILED A LETTER FROM ADDITIONAL DISTRICT SUB REGISTRAR, CHINSURAH HOOGHL Y DATED 26.09.2011 (MEMO NO.-393) IN WHICH IT IS MENTIONED THAT R.S. C ONSTRUCTION, THE PARTNERSHIP FIRM ARE THE SELLER OF THE FLATS. THE A PPELLANT SUBMITTED COPY OF FEW CONVEYANCE DEEDS. THE ASSESSING OFFICER ALSO VE RIFIED THE ASSESSMENT RECORDS OF R.S. CONSTRUCTION FOR THE A.Y. 2006-07, 2007-08 & 2008-09. ADDITION MADE BY THE ASSESSING OFFICER AS UNEXPLAIN ED INVESTMENT LEADS TO DOUBLE TAXATION IN THE HANDS OF PARTNERSHIP FIRM AS WELL AS PARTNER. CONSIDERING THE FACTS OF THE CASE, 'ADDITION' MADE BY .THE ASSES-SING OFFICER AS UNEXPLAINED INVESTMENT AMOUNTING TO R'). 42:41,8001- IS NOT TAXABLE. THEREFORE THE WHOLE ADDITION OF RS.42,41 , 8001- IS DELETED. FROM THE AFORESAID OBSERVATION, WE FIND THAT THE FA CTUAL FINDING GIVEN BY THE LD.CIT(A) THAT THE SALE OF FLATS HAVE BEEN DULY RE FLECTED IN THE INCOME-TAX RETURNS OF THE PARTNERSHIP FIRM, M/S. R.S CONSTRUCTION. IN VIE W OF THE SAID CERTIFICATE ISSUED TO THE DISTRICT REGISTRAR, CHINSURAH, HOOGHLY BY THE ADDL. DIST. SUB-REGISTRAR, CHINSURAH, HOOGHLY, WE FIND THAT THE ASSESSEE HAD EXECUTED THE SALE DEED ONLY ON BEHALF OF THE SAID PARTNERSHIP FIRM AND NOT IN HIS INDIVIDUAL CA PACITY. WE FIND MAKING OF AN ADDITION IN RESPECT OF SALE OF SUBJECT MENTIONED P ROPERTY WOULD ONLY RESULT IN DOUBLE TAXATION BY WAY OF ADDITION. WE ALSO FIND THAT NO NE OF THESE FINDINGS HAVE BEEN ITA NO.55/KOL/2013- C-AM SHRI SNEHANGSHU MONDAL 5 CONTROVERTED BY THE REVENUE BEFORE US. HENCE, WE FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD.CIT(A) IN DELETING THE ADDITION MAD E BY THE LD.AO IN THIS REGARD. WE UPHOLD THE SAME. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6. THE ASSESSEE HAS FILED CROSS OBJECTION [NO.23/KO L/2013], WHICH ONLY SUPPORTS THE ORDER OF THE LD.CIT(A). 7. IN THE RESULT, THE APPEAL OF THE REVENUE AN D CROSS OBJECTION OF THE ASSESSEE BOTH ARE DISMISSED AS STATED ABOVE. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 02 - 0 3 - 2016 1.. THE APPELLANT/DEPARTMENT: SHRI UTPAL CHAKRABOR TY, INCOME TAX OFFICER WARD 2(2), HOOGHLY, AAYKAR BHAWAN, CHINSURAH, HOOGH LY-712101. 2 THE RESPONDENT/ASSESSEE- SHRI SNEHANGSHU MONDAL 4 10 SAROJINI KAMARPARA ROAD CHINSURAH, HOOGHLY 712101. 3 /THE CIT, 4.THE CIT(A ) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP SPS SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE: DATE 02 -03-2016 COPY OF THE ORDER FORWARDED TO:-