V.S.Padmalatha, CHENNAI V. ITO, CHENNAI

ITA 616/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8843 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2016
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: D ANANAD
• Section: 142(1); 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : CHENNAI . . . , [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ] ./ I.T.A.NO. 616/MDS/2016 / ASSESSMENT YEAR : 2009-10 SMT. V.S. PADMALATHA NO.25, GIRI ROAD T. NAGAR, CHENNAI 600 017 VS. THE INCOME TAX OFFICER NON-CORPORATE WARD 2(2) CHENNAI [PAN AJYPP 9870 C] ( ! / APPELLANT) ( '# ! /RESPONDENT) / APPELLANT BY : SHRI D.ANANAD, ADVOCATE /RESPONDENT BY : SHRI N. MADHAVAN, JCIT / DATE OF HEARING : 17 - 0 6 - 2016 / DATE OF PRONOUNCEMENT : 15 - 0 7 - 2016 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, CHENNA I, DATED 13.11.2015 AND PERTAINS TO ASSESSMENT YEAR 2009-1 0. 2. SHRI D.ANAND, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE ONLY ISSUE ARISES FOR CONSIDERATION IS COMPUTAT ION OF CAPITAL GAINS ON TRANSFER OF THE IMMOVABLE PROPERTY. 3. ACCORDING TO THE LD. COUNSEL, ON THE BASIS OF AIR I NFORMATION RECEIVED FROM THE SUB-REGISTRAR, MYLAPORE, FOR SALE OF IMMOVABLE ITA NO. 616/16 :- 2 -: PROPERTY TO THE EXTENT OF ` 1,90,19,700/-, THE ASSESSING OFFICER ISSUED NOTICE U/S 142(1) OF THE ACT ON 11.7.2011. THE A SSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER BY A LETTER DATED 27.7 .2011 THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS NOT TRANSFERRED OR INVESTED IN ANY IMMOVABLE PROPERTY. THE ASSESSEE HAS EXPLAINED THAT THE INFORMATION SAID TO BE RECEIVED FROM SUB-REGIST RAR, MYLAPORE, MAY BE IN RESPECT OF THE PROPERTY AT MRC NAGAR, R.A.PUR AM, CHENNAI-28. THE FLAT IN MRC NAGAR, R.A.PURAM, WAS PURCHASED BY THE ASSESSEES HUSBAND SHRI V.S. SARAVANAN IN THE NAME OF THE ASS ESSEE. THEREFORE, THE CAPITAL GAINS WAS DISCLOSED BY THE ASSESSEES HUSBAND, SHRI V.S. SARAVANAN. SINCE THE ASSESSEES HUSBAND DECLARED CAPITAL GAINS IN HIS HANDS, ACCORDING TO THE LD. COUNSEL, THERE CANNOT B E ANY ADDITION IN THE HANDS OF THE PRESENT ASSESSEE. SINCE THE ENTI RE PROPERTY WAS PURCHASED FROM AND OUT OF THE MONEY OF THE ASSESSE ES HUSBAND, THE CAPITAL GAINS HAS TO BE NECESSARILY ASSESSED ONLY I N THE HANDS OF THE ASSESSEES HUSBAND AND NOT IN HER HANDS. THEREFORE , THE ADDITION MADE IN THE HANDS OF THE ASSESSEE IS NOT JUSTIFIED . 4. ON THE CONTRARY, SHRI N. MADHAVAN, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE ADMITTE DLY TRANSFERRED IMMOVABLE PROPERTY VALUING ` 1,90,19,700/- WHICH WAS DISCLOSED TO THE REVENUE BY THE SUB-REGISTRAR. THE ASSESSEE C LAIMS THAT THE PROPERTY IN MRC NAGAR, R.A PURAM WAS INVESTED BY HE R HUSBAND SHRI ITA NO. 616/16 :- 3 -: V.S.SARAVANAN, THEREFORE, THE CAPITAL GAINS, IF ANY , HAS TO BE ASSESSED ONLY IN THE HANDS OF HER HUSBAND AND NOT IN HER HAN DS. THE ASSESSEES HUSBAND FILED THE RETURN OF INCOME ONLY ON 10.10.2011 AFTER THE ASSESSEES RETURN WAS TAKEN UP FOR SCRUTINY BY THE ASSESSING OFFICER. EVEN THOUGH THE STATEMENT OF INCOME FILED BY THE ASSESSEES HUSBAND SHOWS THE CAPITAL GAINS WORKING, THE ASSESS MENT ORDER DOES NOT SHOW THAT THE CAPITAL GAINS WAS ASSESSED TO THE ASSESSEES HUSBAND. THE ASSESSEES CLAIM BEFORE THE ASSESSIN G OFFICER THAT THE SALE CONSIDERATION WAS INVESTED FOR PURCHASE OF 50% OF THE PROPERTY AT DOOR NO.25, GIRI ROAD, T. NAGAR. THE ASSESSEE ALR EADY OWNS 50% OF THE PROPERTY AT GIRI ROAD, T. NAGAR AND THE ASSESS EE AND HER HUSBAND ARE RESIDING IN THE SAID PROPERTY. THIS CLAIM WAS REJECTED BY THE ASSESSING OFFICER ON THE GROUND THAT NO EVIDENCE WA S FILED BY THE ASSESSEE TO SUBSTANTIATE THE CLAIM. IN THE ABSENCE OF ANY MATERIAL, THE ASSESSING OFFICER FOUND THAT THE PROPERTY AT MRC NA GAR, R.A PURAM BELONGS TO THE ASSESSEE THEREFORE, THE CAPITAL GAI NS OUGHT TO HAVE DECLARED BY THE ASSESSEE IN HER HANDS. ACCORDINGL Y, THE LONG TERM CAPITAL GAINS OF ` 29,14,770/- WAS BROUGHT FOR TAXATION. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER S IDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMS THAT THE PROPERTY AT MRC NAGAR, R.A. PURAM WAS PURC HASED BY HER HUSBAND IN HER NAME. THE ASSESSEE ENTERED INTO AN AGREEMENT FOR ITA NO. 616/16 :- 4 -: SALE ON 15.5.2009. AS PER THIS AGREEMENT, THE ASS ESSEE AGREED TO PURCHASE 50% OF THE UNDIVIDED SHARE AT DOOR NO.25, GIRI ROAD, T. NAGAR, CHENNAI. THE CIT(A) FOUND THAT THERE WAS NO REFERENCE ABOUT THE SALE AGREEMENT DATED 15.5.2009 IN THE REGISTERE D SALE DEED DATED 12.3.2012. THE ORIGINAL ASSET WAS TRANSFERRED ON 1 0.12.2008. THEREFORE, FOR THE PURPOSE OF CLAIMING EXEMPTION U /S 54 OR 54F, THE ASSESSEE HAS TO NECESSARILY INVEST THE MONEY ON OR BEFORE 10.12.2010. IN THE ABSENCE OF ANY EVIDENCE, THE CIT(A) CONFIRME D THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. FROM THE ORDERS OF THE AUTHORITIES BELOW IT APPEARS THAT THE ASSESSEE HAS NOT PRODUCE D ANY EVIDENCE TO SUPPORT THE CLAIM OF PAYMENT OF ADVANCE ON VARIOUS DATES. SINCE THE PROPERTY WAS ORIGINALLY TRANSFERRED ON 10.12.2008, THE INVESTMENT MADE BY THE ASSESSEE IS BEYOND THE PERIOD OF ONE Y EAR PROVIDED UNDER THE ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN BOTH THE AUTHORITIES BELOW FOUND THAT THE RE WAS NO EVIDENCE FOR DEPOSIT OF CAPITAL GAINS IN THE CAPITAL GAINS S CHEME BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME AND THERE WAS NO EVIDENCE FOR TRANSFER/PURCHASE OF NEW ASSET, GIVING ONE MORE OPP ORTUNITY TO THE ASSESSEE TO ESTABLISH THE INVESTMENT MADE IN THE NE W ASSET WITHIN THE SPECIFIED PERIOD, MAY NOT PREJUDICE THE INTEREST OF THE REVENUE IN ANY WAY. GIVING SUCH AN OPPORTUNITY WOULD DEFINITELY PROMOTE THE CAUSE OF JUSTICE. ACCORDINGLY, THE ORDERS OF THE LOWER A UTHORITIES ARE SET ITA NO. 616/16 :- 5 -: ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL REEXAMINE THE ISSUE AFRESH AND FIND OUT ACTUALLY WHEN THE ORIGINAL ASSET WAS TRANS FERRED AND WHETHER THE ASSESSEE HAS INVESTED THE CAPITAL GAINS AS PRO VIDED U/S 54/54F OF THE ACT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JULY, 2016, AT CHENNAI. SD/- ( . . . ! ) (N.R.S. GANESAN) / JUDICIAL MEMBER '# / CHENNAI $% / DATED: 15 TH JULY, 2016 RD %&'' ()'*) / COPY TO: ' 1 . / APPELLANT 4. ' + / CIT 2. / RESPONDENT 5. ),-' . / DR 3. ' +'/! / CIT(A) 6. -0'1 / GF