ACIT, Jaipur V. SHRI PRAVEEN MAHESHWARI, Jaipur

ITA 697/JPR/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5267 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 27-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ROSHANTA MEENA
• Assessee Lawyers: MANISH AGARWAL CA DHK
• Keywords: Salary income
• Section: 133A; 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 697/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, JAIPUR. CUKE VS. PRAVEEN MAHESHWARI (INDIVIDUAL), C-5, SAWAI JAISINGH HIGHWAY, BANIPARK, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ACFPM 8678 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : MRS. ROSHANTA MEENA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/05/2016 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 25/05/2016 VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 08/05/2012 OF THE LEARNED C.I.T.(A)-1, JAIPUR FOR A .Y. 2008-09. THE SOLE EFFECTIVE GROUND OF APPEAL IS REPRODUCED AS UNDER:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN THE LAW, THE LD CIT(A) IS JUSTIFIED I N DELETING THE ADDITION OF RS. 67,50,000/- TREATED AS LONG TERM CAPITAL BY THE ASSESSING OFFICER. 2 ITA NO. 697/JP/2012 ACIT VS PRAVEEN MAHESHWARI (INDV) 2. THE ASSESSEE FILED RETURN FOR THE YEAR UNDER CONS IDERATION ON 23/07/2008 DECLARING TOTAL INCOME OF RS. 27,59,890/ -. THE ASSESSEE IS HAVING INCOME FROM SALARY AND OTHER SOURCES. THE LD ASSESSING OFFICER OBSERVED THAT A SURVEY U/S 133A OF THE INCOME TAX AC T, 1961 (IN SHORT THE ACT) WAS CARRIED OUT IN THE BUSINESS PREMISES OF M/S P.R. ROLLING MILLS PVT. LTD., JAIPUR ON 08/3/2010. DURING THE COURSE O F SURVEY, A REGISTRATION DEED IN RESPECT OF HOUSE PROPERTY SOLD BY THE ASSES SEE ALONGWITH HIS BROTHER SHRI RAJEEV MAHESHWARI WAS FOUND IN THE BUSIN ESS PREMISES OF THE COMPANY. THIS REGISTRATION DEED WAS EXECUTED ON 0 6/02/2008. VIDE THIS REGISTRATION DEED, THE ASSESSEE SHRI PRAVEEN M AHESHWARI SOLD HOUSE PROPERTY SITUATED AT 3-A, THE MALL, AMRITSAR TO M/S RAI BAHADUR KISHORE CHAND & SONS (PROPERTIES) PVT. LTD., AMRITSAR FOR A TOTAL CONSIDERATION OF RS. 1,35,00,000/- AND ASSESSEES SHARE BEING AT RS. 67,00,000/-. AS PER STATEMENT OF THE ASSESSEE AND AS PER OFFICE RECORD, THE ASSESSEE HAD NOT PAID CAPITAL GAIN ON SALE CONSIDERATION RECEIPT OF RS. 67,50,000/-, THEREFORE, HE RECORDED THE REASONS U/S 147 OF THE A CT AND ISSUED NOTICE U/S 148 OF THE ACT. THUS, THE LD ASSESSING OFFICER M ADE ASSESSMENT U/S 143 READ WITH SECTION 148 OF THE ACT. THE LD ASSESSIN G OFFICER FURTHER OBSERVED THAT THE ASSESSEE HAD RETRACTED FROM THE S TATEMENT GIVEN DURING THE COURSE OF SURVEY PROCEEDINGS WHEREAS IN ANSWER TO QUESTION NO. 4 OF 3 ITA NO. 697/JP/2012 ACIT VS PRAVEEN MAHESHWARI (INDV) STATEMENT, HE HAD CATEGORICALLY ADMITTED THAT HIS F ATHER HAS SHARE IN THE PROPERTIES SITUATED AT AMRITSAR AND THIS PROPER TY WAS HIS HUF PROPERTY. THIS PROPERTY WAS INHERITED BY US I.E. BOT H BROTHER AT 1/8 TH SHARE EACH AND THIS PROPERTY CAME IN OUT BOTH THE HUFS. TH IS PROPERTY WAS SOLD BY BOTH HUFS FOR A CONSIDERATION OF RS. 1,35,00,000 /- AND ON THIS AMOUNT NO CAPITAL GAIN TAX HAS BEEN PAID. THEREFORE, I DISC LOSE OF MY SHARE I.E. RS. 67,50,000/- FOR CAPITAL GAIN PURPOSE AND I SHAL L REVISE MY RETURN OF INCOME ACCORDINGLY. THOUGH SHRI PRAVEEN MAHESHWARI S TATED IN THE STATEMENT THAT THE PROPERTY WAS SOLD BY BOTH THE HUF S. YET THE FACTS ARE NOT CORRECT AND THE PROPERTY HAS NOT BEEN SOLD BY T HE HUFS BUT IN INDIVIDUAL CAPACITY. FURTHER, AS PER PARA (D) OF PA GE NO. 25 OF LD CIT(A) ORDER IN THE CASE OF PRAVEEN MAHESHWARI HUF FOR A.Y. 2008-09, THE ABOVE MENTIONED FACTS IS CONFIRMED BY STATING THAT THE FI NDING OF THE ASSESSING OFFICER THAT THE PROPERTY AT AMRITSAR WAS NOT OWNED B Y THE ASSESSEE HUF IS CORRECT AS PER DISCUSSION THE MAIN BODY OF THE O RDER. THE PROPERTY AT AMRITSAR BELONG TO PRAKASH CHAND MAHESHWARI HUF AND NOT TO PRAVEEN CHAND MAHESHWARI HUF AND RAJEEV CHAND MAHESHWARI HUF. HE FURTHER OBSERVED THAT THE SAID PROPERTY WAS BELONGED TO M/S PRAKASH CHAND MAHESHWARI HUF BUT AFTER PARTITION OF THE SAME HUF, IT WAS TRANSFERRED TO SHRI PRAVEEN MAHESHWARI AND THIS FACT ALSO GOT SUPPO RTED FROM 4 ITA NO. 697/JP/2012 ACIT VS PRAVEEN MAHESHWARI (INDV) REGISTRATION DEED EXECUTED ON 06/02/2008. THEREFORE, HE ASSESSED LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD ALLO WED THE APPEAL BY OBSERVING THAT THE HONBLE ITAT IN THE CASE OF PRAVE EN MAHESHWARI HUF FOR A.Y. 2008-09 IN ITA NO. 630/JP/2011 ORDER DATED 23/09/2011 HAS ALLOWED THE APPEAL OF THE ASSESSEE. THE FINDINGS OF T HE HONBLE ITAT HAS BEEN REPRODUCED BY THE LD CIT(A) ON PAGE NOS. 7 TO 1 1 OF THE ORDER WHEREIN THE HONBLE ITAT HELD THAT THE PROPERTY AT A MRITSAR WAS TRANSFERRED BY THE HUF OF THE ASSESSEE IN EXCHANGE FOR THE PROPERTY AT JAIPUR. AS THE LD ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY EVIDENCE OR ARGUMENT TO CONTROVERT HIS FINDING OF H ONBLE ITAT, THE MATTER IS COVERED BY ITS ORDER AND NO ADDITION BE M ADE TO THE INCOME OF THE APPELLANT IN HIS INDIVIDUAL CAPACITY. THEREFORE , HE DELETED THE ADDITION OF RS. 67,50,000/-. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR HAS SUPPORTED THE ORDER OF THE ASSESSING OFFICER. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS REITERATED THE ARGUMENTS MADE BEFORE THE LD CIT (A) AND ARGUED THAT THE HONBLE ITAT, JAIPUR BENCH IN THE CASE OF PRAVEE N MAHESHWARI HUF IN ITA NO. 630/JP/2011 AND IN ITA NO. 731/JP/2011 ASSE SSMENT YEAR 2008- 5 ITA NO. 697/JP/2012 ACIT VS PRAVEEN MAHESHWARI (INDV) 09 ORDER DATED 23/09/2011 HAS DECIDED THAT THIS PRO PERTY IS BELONGED TO PRAVEEN MAHESHWARI HUF NOT INDIVIDUAL. THEREFORE, HE PRAYED TO UPHOLD THE ORDER OF THE LD CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE COORDI NATE BENCH HAS CONSIDERED ALL THE ISSUE OF OWNERSHIP OF PROPERTY EX CHANGED WITH PROPERTY IN JAIPUR BY PRAVEEN MAHESHWARI HUF IN A.Y. 2008-09. ALL THE FACTS HAD BEEN CONSIDERED AND HELD THAT PROPERTY BELONGED TO HUF AND JAIPUR PROPERTY HAS BEEN TAKEN IN EXCHANGE. THEREFORE, THE RE IS NO MERIT IN THE REVENUES APPEAL. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LD CIT(A). 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 25/5/2016. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 TH MAY, 2016. RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ACIT, CIRCLE-3, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI PRAVEEN MAHESHWARI (INDV.), JAI PUR. 6 ITA NO. 697/JP/2012 ACIT VS PRAVEEN MAHESHWARI (INDV) 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 697/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR