Shailendra Singh Gangwar, Pilibhit V. Dy. Commissioner of Income Tax, Circle-II, Bareilly

ITA 646/LKW/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0918 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 21-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVINDRA KUMAR AGARWAL
• Assessee Lawyers: C K SINGH
• Keywords: Gift; TDS; Set aside

Judgement Text

I.T.A. NO.645 TO 647/LKW/2017 ASSESSMENT YEAR:2014-15 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.645/LKW/2017 ASSESSMENT YEAR:2014-15 SHRADDHAS GODAAN HOSPITAL, NEAR SUNGARHI POLICE STATION, PILIPHIT. PAN:ABZFS 5841 D VS. DY.C.I.T., CIRCLE-II, BAREILLY. (APPELLANT) (RESPONDENT) ITA NO.646/LKW/2017 ASSESSMENT YEAR:2014-15 SHRI SHAILENDRA SINGH GANGWAR, SHRADDHAS GODAAN HOSPITAL 385, TULA RAM, PILIPHIT. PAN:AIJPG 8630 M VS. DY.C.I.T., CIRCLE-II, BAREILLY. (APPELLANT) (RESPONDENT) ITA NO.647/LKW/2017 ASSESSMENT YEAR:2014-15 SMT. SAVITA GANGWAR, SHRADDHAS GODAAN HOSPITAL 385, TULA RAM, PILIPHIT. PAN:AMSPG 9433 B VS. DY.C.I.T., CIRCLE-II, BAREILLY. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAVINDRA KUMAR AGARWAL, C.A. ASSESSEE BY SHRI C. K. SINGH, D.R. DATE OF HEARING 15 / 11 /201 8 DATE OF PRONOUNCEMENT 20 / 11 /201 8 I.T.A. NO.645 TO 647/LKW/2017 ASSESSMENT YEAR:2014-15 2 O R D E R PER PARTHA SARATHI CHAUDHURY: THIS BUNCH OF APPEALS ARE PREFERRED BY THE PARTNER SHIP FIRM AND AS WELL AS THE TWO PARTNERS IN SEPARATE CASES AGAINST SEPARATE ORDERS OF LEARNED CIT (EXEMPTIONS), BAREILLY AS PER THE SEPAR ATE GROUNDS OF APPEAL APPEARING ON RECORD IN EACH OF THESE APPEALS. THES E CASES WERE HEARD TOGETHER AND SINCE FACTS SIMILAR, ISSUES COMMON THE REFORE, DISPOSED OF IN THIS CONSOLIDATED ORDER. 2. AT THE TIME OF HEARING LEARNED A. R. OF THE ASSE SSEE APPRAISED THE BENCH THAT I.T.A. NO.645 PERTAINS TO THE APPEAL PRE FERRED BY THE PARTNERSHIP FIRM WHEREIN THE ONLY GRIEVANCE IS THAT THE IMMOVAB LE PROPERTY PURCHASED, WHETHER THAT SHOULD BE ASSESSED IN THE HANDS OF THE PARTNERSHIP FIRM OR IN THE HANDS OF THE INDIVIDUAL PARTNERS. THAT BEING T HIS GROUND COMMON FOR THE OTHER TWO APPEALS ALSO I.E. I.T.A. NO.646, THE ONLY OTHER GROUND IN ADDITION HEREIN IS RS.5,00,000/- ON UNSECURED LOAN AND IN I.T.A. NO.647 RS.20,00,000/- ADDITION WITH REGARD TO GIFT RECEIVE D FROM FATHER. SINCE THE ISSUE OF ASSESSMENT OF IMMOVABLE PROPERTY WHICH IS THERE IN I.T.A. NO.645 IS COMMON TO ALL THE THREE APPEALS, WE TAKE UP THE FAC TS IN THIS APPEAL AND THEN THE OTHER TWO ISSUES FOR I.T.A. NO.646 AND 647 WILL BE DEALT THEREAFTER. 3. THE BRIEF FACTS IN I.T.A. NO.645 ARE THAT SHRADD HAS GODAAN HOSPITAL IS A PARTNERSHIP FIRM CONSISTING OF TWO PARTNERS, NAME LY, DR. SHAILENDRA GANGWAR AND DR. SAVITA GANGWAR SHARING PROFIT AND L OSS EQUALLY. THE HOSPITAL IS PROVIDING INDOOR AND OUTDOOR TREATMENT TO PATIENTS. THERE WAS A SURVEY AT THE PREMISES OF THE ASSESSEE ON 27/12/201 3. THE SURRENDER DURING SURVEY AND AFTER INCLUSION OF INCOME AS SURR ENDERED IN SURVEY THE INCOME TAX RETURN OF THE ASSESSEE FIRM WAS FILED ON 20/11/2014 DECLARING I.T.A. NO.645 TO 647/LKW/2017 ASSESSMENT YEAR:2014-15 3 TOTAL INCOME OF RS.77,02,690/- ON WHICH TOTAL TAX P AID BY THE ASSESSEE FIRM WAS OF RS.24,52,350/-. THE CASE WAS SELECTED UNDER MANUAL COMPULSORY SCRUTINY AND NOTICE U/S 143(2) WAS ISSUED TO THE AS SESSEE. DURING THE ASSESSMENT PROCEEDINGS ASSESSING OFFICER ALLEGED TH AT PROPERTY PURCHASED DOES NOT BELONG TO FIRM AND IT BELONGS TO PARTNERS AND ADDED RS.13,43,916/- TOWARDS ESTIMATED EXTRA PROFIT WHILE NOT ALLOWING I NTEREST AND REMUNERATION TO PARTNERS AT RS.11,97,689/-. THE LEARNED CIT(A) DELETED PARTLY THE ADDITIONS ON ACCOUNT OF ESTIMATED EXTRA PROFIT AND INTEREST AND REMUNERATION TO PARTNERS CONFIRMING HOWEVER ON THE ISSUE OF OWNE RSHIP OF IMMOVABLE PROPERTIES. THE FINDING OF LEARNED CIT(A) ON THE I SSUE IS AS UNDER: THE ORDER OF THE A.O. AND THE ABOVE SUBMISSION OF THE APPELLANT HAVE BEEN CONSIDERED. IT IS UNDISPUTED FA CT THAT THE LAND WAS PURCHASED BY DR. SHAILENDRA SINGH GANGWAR AND DR. SAVITA GANGWAR. THE A.O. HAS REPRODUCED THE CONVEYA NCE DEED WHICH CLEARLY MENTIONED THAT THE LAND WAS PURCHASED BY THESE INDIVIDUALS. THE APPELLANT IS TRYING TO TAKE ADVANT AGE OF THE FACT THAT THE NAME OF THESE TWO DOCTORS IT IS WRITTEN TH AT THEY ARE PARTNERS IN THE HOSPITAL. THIS MENTIONING HAS NO VA LUE. IT IS WRITTEN AT TUNE THAT THEY RESIDE AT SUCH AND SUCH P LACE OR PROPRIETOR OR PARTNER OR DIRECTOR OF A WELL KNOWN F IRM OR COMPANY. THIS DOES NOT MEAN THAT THE LAND WAS PURCH ASED BY THE FIRM, OR THE COMPANY. THERE IS NO AMBIGUITY HI THE CONVEYANCE. FURTHER IN THE CONVEYANCE DEED IT IS MENTIONED THAT THE ABOVE TWO PERSONS HAVE MADE THE PAYMENT TO THE SELLER/VENDOR. NOWHERE IN THE CONVEYANCE DEED IT IS MENTIONED THAT PAYMENT WAS MADE BY THE FIRM. THIRDLY EVEN IF THE LAND IS SHOWN BY THE PARTNERS A S THEIR CONTRIBUTION TO THE CAPITAL IT IS A SEPARATE TRANSA CTION ALTOGETHER. THIS IS A TRANSACTION BETWEEN PARTNERS AND FIRM. IN VIEW OF THE ABOVE THE AO CORRECT IN INVOKING THE PROVISION OF SECTION 56(VII)(B) HI THE CASE OF PART NERS. THERE IS NO ERROR IN THE ORDER. ALL THE ABOVE GROUNDS OF APP EAL ARE DISMISSED. I.T.A. NO.645 TO 647/LKW/2017 ASSESSMENT YEAR:2014-15 4 5. WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIVA L CONTENTIONS AND THE PAPER BOOK PLACED BEFORE US IN PAGES 9-52. THE RE IS A COPY OF TITLE DEED DATED 09/07/2013 IN THE NAME OF THE ASSESSEE F IRM AND IN PAGE 53 COPY OF TDS CHALLAN DATED 19/07/2013 PAID BY THE PA RTNERSHIP FIRM ON ITS TAN HAS BEEN ANNEXED. THAT ON THE BASIS OF THESE D OCUMENTS LEARNED A. R. SUBMITTED THAT THE IMMOVABLE PROPERTY PURCHASED IS IN THE NAME OF THE FIRM SO THAT EVEN THE TDS HAS BEEN PAID BY THE PART NERSHIP FIRM ON ITS TAN NUMBER. THE COPY OF TAN ALLOTMENT IS ALSO ANNEXED AT PAGE 54 OF THE PAPER BOOK. THESE EVIDENCES, ACCORDING TO LEARNED A. R., SHOW THAT THE IMMOVABLE PROPERTY BELONGS TO THE PARTNERSHIP FIRM. HOWEVER, WHEN WE PERUSED THE ORDER OF LEARNED CIT(A), WHOSE POWER IS CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER, HE HAS STATED THAT IT IS AN UNDISPUTED FACT THAT THE LAND WAS PURCHASED BY DR. SHAILENDRA SINGH GANGWAR AND DR. SAVITA GANGWAR. THE ASSESSING OFFICER HAS PRODUCED THE C ONVEYANCE DEED WHICH CLEARLY SUGGEST THAT THE LAND WAS PURCHASED IN THE NAME OF INDIVIDUALS. THE ASSESSEE IS TRYING TO TAKE ADVANTAGE OF THE FACT TH AT THE NAME OF THESE TWO DOCTORS IT IS WRITTEN THAT THEY ARE PARTNERS IN THE HOSPITAL. THIS MENTIONING HAS NO VALUE. IT IS WRITTEN THAT THEY RESIDE AT SUC H AND SUCH PLACE OR PROPRIETOR OR PARTNER OR DIRECTOR OF A WELL KNOWN F IRM OR COMPANY. THIS DOES NOT MEAN THAT THE LAND WAS PURCHASED BY THE FIRM. THE MAIN CONTENTION OF LEARNED CIT(A) IS THAT AS AN EXERCISE PUTFORTH BY T HE ASSESSING OFFICER REGARDING THE INTERPRETATION OF TITLE DEED NOWHERE IT IS MENTIONED REGARDING THE NAME OF PARTNERSHIP FIRM. ALL THE MENTIONING I S IN THE NAME OF THESE TWO DOCTORS I.E. DR. SHAILENDRA SINGH GANGWAR AND D R. SAVITA GANGWAR. IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE SANCTITY OF THESE FACTS AFTER DETAILED VERIFICATION AND READJUDICATE THE SAME PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. I.T.A. NO.645 TO 647/LKW/2017 ASSESSMENT YEAR:2014-15 5 6. IN THE RESULT, I.T.A. NO.645 IS ALLOWED FOR STAT ISTICAL PURPOSES. 7. THIS GROUND COMMON TO I.T.A. NO.646 AND 647 IS S IMILARLY RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER AND WITH REGARD TO RS.5,00,000/- ADDITION ON UNSECURED LOAN IN I.T.A. NO.646 AND ANO THER ADDITION OF RS.20,00,000/- AS GIFT FROM FATHER IN I.T.A. NO.647 , THESE ISSUES ARE ALSO SET ASIDE TO THE FILE OF THE ASSESSING OFFICER SO THAT THE ASSESSING OFFICER CAN VERIFY IN DETAIL IN ENTIRETY REGARDING THE ACTUAL F ACTS IN THESE CASES OF THE PARTNERSHIP FIRM VIS--VIS BOTH THE PARTNERS. 7. IN THE RESULT, I.T.A. NO.646 AND 647 ARE SET ASI DE TO THE ASSESSING OFFICER AND ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE COMBINED RESULT, ALL THE APPEALS OF THE A SSESSEE IN I.T.A. NO.645K, 646 AND 647 ARE ALLOWED FOR STATISTICAL PU RPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 20/11 /2018) SD/. SD/. ( T. S. KAPOOR ) (PART HA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:20/11/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW