SH. KUNDAN SINGFH S/O SH. RATTAN SINGH , HOSHIARPUR V. INCOME TAX OFFICER WARD 2, HOSHIAR PUR

ITA 586/ASR/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2667 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 29-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value
• Section: 148; 56(2)(vii)(b); 143(3); 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 586/Asr/2018 Assessment Year: 2010-11 Sh. Kundan Singh S/o Sh. Rattan Singh, House No. DH 161, Manohar Gali, Near Bus Stand, Hoshiarpur [PAN: IFNPS 4312M] Vs. Income Tax Officer, Ward-2, Hoshiarpur (Appellant) (Respondent) Appellant by : Sh. Sandeep Vijh , CA Respondent by: Sh. S. M. Surendranath, Sr. DR Date of Hearing: 21.03.2022 Date of Pronouncement: 10.05.2022 ORDER Per Anikesh Banerjee, JM: The instant appeal was filed against the order passed by the Ld. Commissioner of Income Tax (Appeals)-1, Jalandhar [in brevity the CIT(A)], bearing Appeal No. CIT(A)-1/JAL/10182/17-18 dated 28.09.2018 u/s 250(6) of the Income Tax Act, 1961 [in brevity the Act], in respect of Assessment Year 2010-11. 2. The assessee has raised the following grounds of appeal which are as under: “1. The Learned Commissioner of Income Tax (Appeals), has erred in upholding the order u/s 143(3) which was bad in law. ITA No. 586/Asr/2018 Kundan Singh v. ITO 2 2. The Learned Commissioner of Income Tax (Appeals) has erred in sustaining the addition of Rs.19,50,000/- u/s 56(2)(vii)(b). The factual position as well as the submissions made have not been appreciated. 3. The assumption for jurisdiction for reassessment was not justified.” 3. Brief fact of the case is that the assessee & Sh. Gurdev Singh both are appointed as constituted attorney in view of General Power of Attorney of Smt. Harsharan Kaur wife of Late Sh. Gurbaksh Singh aged 73 years executed on dated 19.03.2010. The ld. AO received the information about the General Power of Attorney. The proceeding was started u/s 148 and calculated stamp duty value amount to Rs. 19,50,000/- as the value of transfer of right of the property. The stamp duty value of property amount of Rs.19,50,000/- was added back by the ld. AO with the total income of the assessee. 4. During the appeal hearing the ld. counsel of the assessee filed brief note, copy of Power of Attorney with translated version & referred the order of coordinate bench, bearing ITA No. 212/Asr/2018 dated 17.01.2019 in support of his argument. The assessee constituted as Attorney in the same property with Sh. Gurdev Singh, details mentioned above. Both the Power of Attorney holder related to the property of Smt. Harsharan Kaur. 5. The ld. counsel also mentioned that the same addition was made in case of other Power of Attorney holder of Sh. Gurdev Singh. The matter was agitated before the ITAT, Camp Bench at Jalandhar bearing ITA No. 212/Asr/2018, AY 2010-11 order dated 17.01.2019. As per the order of coordinate bench, the appeal of the Sh. Gurdev Singh is allowed. As per this order the addition cannot be sustained on the basis of Power of Attorney. As, there is no transfer of the right of the property. ITA No. 586/Asr/2018 Kundan Singh v. ITO 3 6. The ld. DR vehemently argued and relied on the order of the ld. CIT(A) which is as follows: “Smt. Harsharan Kaur for 19.03.2010 has executed as registered Power of Attorney in respect of 19.5 Marlas of residential land in favour of assessee” As per ld DR, the General Power of Attorney was executed in assessee’s favour which was accepted by assessee. Therefore, provision of section 56(2)(vii)(b) of Income Tax Act, 1961 is applicable in this case and has been rightly applied by the ld. Assessing Officer. 7. We heard the arguments of both the parties as per section 56(2)(vii)(b) of the Act read as follows:- “[(b) any immovable property,— (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration:” As per section 56(2)(vii)(b) of the Act, the consideration is taken on stamp duty value on the transfer of the property. Here the property is not transferred. The assessee was only the Power of Attorney holder to maintain the property, collected the rent to laid down the property etc. So, section 56(2)(vii)(b) of the Act will be applicable where there is a transfer of right of the immovable property. Same view was taken by the Coordinate Bench in ITA No. 212/Asr/2018 related to other Power of Attorney holder. Accordingly, the addition was made by the Ld AO u/s 56(2)(vii)(b) of the Act only on the basis of Power of Attorney not any transfer of ITA No. 586/Asr/2018 Kundan Singh v. ITO 4 right of the property. The addition made by the ld. AO is not proper. Accordingly, the addition amount of Rs. 19,50,000/- is deleted. 8. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 10.05.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member Date: 10.05.2022 *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order