ITO, UDAIPUR V. Shri Kuldeep Singh Rathore, UDAIPUR

ITA 556/JODH/2013

• Counselvise Citation: 55623314 RSA 2013
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 09-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.C. GUPTA G.C. GUPTA G.C. GUPTA G.C. GUPTA, , , , HONBLE HONBLE HONBLE HONBLE VICE VICE VICE VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA, , , , HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO. .. .556/JODH/2013 556/JODH/2013 556/JODH/2013 556/JODH/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009- -- -10 1010 10 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -1(2), 1(2), 1(2), 1(2), UDAIPUR. UDAIPUR. UDAIPUR. UDAIPUR. VS. VS. VS. VS. SHR SHR SHR SHRI KULDEEP SINGH RATHORE, I KULDEEP SINGH RATHORE, I KULDEEP SINGH RATHORE, I KULDEEP SINGH RATHORE, 10, SHEETALA MARG, 10, SHEETALA MARG, 10, SHEETALA MARG, 10, SHEETALA MARG, LAKE PALACE ROAD, LAKE PALACE ROAD, LAKE PALACE ROAD, LAKE PALACE ROAD, KALAJI GORAJI , KALAJI GORAJI , KALAJI GORAJI , KALAJI GORAJI , UDAIPUR. UDAIPUR. UDAIPUR. UDAIPUR. PAN : ALTPR5277L. PAN : ALTPR5277L. PAN : ALTPR5277L. PAN : ALTPR5277L. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.L. MAURYA, D.R. RESPONDENT BY : NONE. DATE OF HEARING : 01.09.2015 01.09.2015 01.09.2015 01.09.2015 DATE OF PRONOUNCEMENT: 04.09.2015 04.09.2015 04.09.2015 04.09.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT : :: : THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), UDAIP UR DATED 9 TH SEPTEMBER, 2013. 2. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE-RESPONDENT AND, THEREFORE, THE APPEAL OF T HE REVENUE IS BEING DECIDED EX PARTE QUA THE ASSESSEE-RESPONDENT ON MERITS AFTER HEARING THE LEARNED DR. 3. GROUND NO.1 OF THE ASSESSEES APPEAL READS AS UN DER:- ITA-556/JODH/2013 2 1. CIT(A) ERRED IN DELETING THE ADDITION OF RS.22,01,023/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN, IGNORING THE FACT THAT THE SALE DEED WAS SIGN ED BY 7 SELLERS IN THEIR INDEPENDENT CAPACITY AND THUS ASSESSEE IS LEGALLY ENTITLED FOR HIS 1/7 TH SHARE AND NOT 1/15 TH . 4. LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESS ING OFFICER. HE SUBMITTED THAT THE SALE DEED WAS SIGNED BY SEVEN SE LLERS AND, THEREFORE, 1/7 TH SHARE OF THE SALE TRANSACTION SHOULD HAVE BEEN ASSESSED IN THE HANDS OF THE ASSESSEE AS LONG TERM CAPITAL GAIN. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DR AND HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). WE FIND THAT THE PROPERTY IN QUESTION BELONGED TO THE GRANDFATHER OF THE ASSESSEE WHICH WAS PURCHASED IN THE YEAR 1969 AND W AS SOLD ON 25.03.2009, AFTER THE DEATH OF THE ASSESSEES GRAND FATHER. THE GRANDFATHER OF THE ASSESSEE DIED INTESTATE AND THE PROPERTY DEVOLVED UPON THE CHILDREN BEING THE LEGAL HEIRS OF THE DECE ASED AND THE FATHER OF THE ASSESSEE WAS ADMITTEDLY ONE OF THE LEGAL HEI RS OUT OF FIVE LEGAL HEIRS AND, THEREFORE, THE FATHER OF THE ASSESSEE WA S ENTITLED FOR 1/5 TH SHARE OF THE SALE PROCEEDS OF THE SAID PROPERTY. T HE FATHER OF THE ASSESSEE ALSO EXPIRED INTESTATE AND, AFTER THIS, TH E PROPERTY DEVOLVED UPON THREE CLASS-1 LEGAL HEIRS OF THE ASSESSEES FA THER, I.E., THE MOTHER, THE ASSESSEE HIMSELF AND THE BROTHER OF THE ASSESSE E. ACCORDINGLY, THE ASSESSEE WAS ENTITLED FOR 1/3 RD SHARE OF HIS FATHERS 1/5 TH SHARE IN THE SAID PROPERTY, MEANING THEREBY THAT THE ASSESSEE WA S HAVING 1/15 TH SHARE IN THE SAID PROPERTY AND COULD BE ASSESSED UN DER THE HEAD LONG TERM CAPITAL GAIN ONLY WITH REGARD TO 1/15 TH SHARE OF THE SALE PROCEEDS OF THE SAID PROPERTY. THERE BEING NO MISTAKE IN TH E ORDER OF THE LEARNED CIT(A) ON THIS ISSUE, GROUND NO.1 OF THE RE VENUES APPEAL IS DISMISSED. ITA-556/JODH/2013 3 6. GROUND NO.2 OF THE REVENUES APPEAL READS AS UND ER:- 2. CIT(A) ERRED IN IGNORING THE FACT THAT NEW HOUS E FOR WHICH DEDUCTION U/S 54 IS CLAIMED IS NOT REGISTERED IN THE NAME OF ASSESSEE AND THUS NOT OWNED BY ASSESSEE AND THEREFORE DEDUCTION U/S 54 IS NOT ALLOWABLE. 7. LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESS ING OFFICER. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED DR A ND HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). WE FIND THAT THE DEDUCTION U/S 54 OF THE ACT WAS DENIED BY THE A SSESSING OFFICER AS THE INVESTMENT IN THE NEW HOUSE WAS NOT MADE BY THE ASSESSEE IN HIS OWN NAME. THE FACT THAT THE ENTIRE SALE PROCEED RE CEIVED BY THE THREE LEGAL HEIRS WAS DEPOSITED IN THE JOINT ACCOUNT MAIN TAINED WITH THE BANK OF BARODA AND THEN INVESTED IN THE NEW HOUSE IN THE NAME OF THE MOTHER OF THE ASSESSEE ON THE BASIS OF THE AGREEMEN T ENTERED INTO BETWEEN THE ASSESSEE, HIS BROTHER AND MOTHER OF THE ASSESSEE TAKING INTO ACCOUNT THE OLD AGE OF THE MOTHER AND THAT ALL THE THREE CO-OWNERS AGREEING TO LIVE TOGETHER IN THE SAID HOUSE, THE CI T(A) HAS RECORDED THAT THESE FACTS WERE NOT DISPUTED BY THE ASSESSING OFFICER. HE HAS FOLLOWED THE DECISION OF HON'BLE SUPREME COURT IN T HE CASE OF CIT VS. PODAR CEMENTS (P) LTD. & OTHERS [1997] 226 ITR 62 5 (SC) AND ALSO THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CAS E OF CIT VS. RAVINDER KUMAR ARORA [2012] 342 ITR 38 AND HAS HELD THAT T O HOLD THE REGISTERED TITLE IN RESPECT OF HOUSE PROPERTY TO BE COME ITS OWNER IS NOT NECESSARY AND HE SHOULD BE THE ACTUAL AND CONSTRUCT IVE OWNER OF THE HOUSE. THERE BEING NO MISTAKE IN THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE AND THE FACT THAT THE ASSESSEE HAS INVES TED THE SALE PROCEEDS IN THE PURCHASE OF NEW HOUSE IS NOT IN DIS PUTE, WE HOLD THAT THE PRE-REQUISITE CONDITIONS FOR THE DEDUCTION U/S 54 ARE SATISFIED IN THIS ITA-556/JODH/2013 4 CASE AND, ACCORDINGLY, THE ORDER OF LEARNED CIT(A) ON THIS ISSUE IS CONFIRMED AND GROUND NO.2 OF THE REVENUES APPEAL I S DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 04.09.2015 . SD/- SD/- ( (( (R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA) )) ) (G. (G. (G. (G.C. GUPTA C. GUPTA C. GUPTA C. GUPTA) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : IN ININ INCOME TAX OFFICER, COME TAX OFFICER, COME TAX OFFICER, COME TAX OFFICER, WARD WARD WARD WARD- -- -1(2), UDAIPUR. 1(2), UDAIPUR. 1(2), UDAIPUR. 1(2), UDAIPUR. 2. RESPONDENT : SHRI KULDEEP SINGH RATHORE, SHRI KULDEEP SINGH RATHORE, SHRI KULDEEP SINGH RATHORE, SHRI KULDEEP SINGH RATHORE, 10, SHEETALA MARG, 10, SHEETALA MARG, 10, SHEETALA MARG, 10, SHEETALA MARG, LAKE PALACE ROAD, KALAJI GORAJI , UDAIPUR. LAKE PALACE ROAD, KALAJI GORAJI , UDAIPUR. LAKE PALACE ROAD, KALAJI GORAJI , UDAIPUR. LAKE PALACE ROAD, KALAJI GORAJI , UDAIPUR. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR