I.T.O Wd - 54(4),kolkata, Kolkata V. Smt. Jharna Ghosh, Kolkata

ITA 728/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100123 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 05-04-2013
• Court: TRIBUNAL
• Department Lawyers: D LAHIRI
• Assessee Lawyers: SOUMITRA CHOW DHURY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] I.T.A NO. 728/KOL/2013 ASSESSMENT YEAR: 2005-06 INCOME-TAX OFFICER, WARD-54(4), KOL. VS. SMT. JHA RNA GHOSH (PAN: ADNPG3179L) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 26.11.2015 DATE OF PRONOUNCEMENT: 26.11.2015 FOR THE APPELLANT: SHRI D. LAHIRI, JCIT, SR. DR FOR THE RESPONDENT: SHRI SOUMITRA CHOWDHURY, ADV OCATE ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XXXVI, KOLKATA IN APPEAL NO. 227/CIT(A)-XXXVI/KOL/HG/10-11 DATED 13.0 2.2013. ASSESSMENT WAS FRAMED BY ITO, WARD-54(4), KOLKATA U/S. 264/143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2005- 06 VIDE ITS ORDER DATED 22.11.2010. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FILE D COPY OF TRIBUNALS ORDER IN ITA NO.752/KOL/2013 WHEREIN DEALING WITH THE ASSESSEES APPEAL TRIBUNAL HAS DELETED THE ADDITIONS ON THE BASIS THAT THE ADVANCE OF SALE PRO CEED OF HOUSE PROPERTY WAS BELONGING TO HER HUSBAND AMOUNTING TO RS.6,12,500/- AND ALSO CASH DEPOSIT OF RS.3,87,500/- BELONGS TO ASSESSEES HUSBAND. TRIBUNAL HAS CONSID ERED THIS ISSUE AND ADJUDICATED VIDE PARA 6 AS UNDER: 6. WE FIND THAT THE ASSESSEE IS AN ADVOCATE, WHOS E HUSBAND LATE TARUN KUMAR GHOSH SUFFERING FROM CANCER DIED ON 21-10-2004. LATE TARU N KUMAR GHOSH WAS FORCED TO SALE HIS HOUSE PROPERTY AND AS PER AGREEMENT HE HAS RECE IVED A SUM OF RS. 28.25 LAKHS PARTLY BY CASH AND PARTLY BY CHEQUES. THE SALE DEED WAS RE GISTERED ON 03-06-2004 I.E BEFORE THE DEATH OF ASSESSEES HUSBAND, LATE TARUN KUMAR GHOSH . FROM THE ABOVE FACTS, IT IS CLEAR THAT THE PROPERTY IN QUESTION WAS SOLD BY ASSESSEE S LATE HUSBAND BEFORE HIS DEATH AND THE RECEIPTS OUT OF THE SALE PROCEEDS ARE DEPOSITED IN A JOINT BANK ACCOUNT THAT OF ASSESSEE AND HER LATE HUSBAND. ONCE THIS IS THE POSITION THE ENTIRE RECEIPTS ARE TO BE ASSESSED IN THE HANDS OF LATE HUSBAND ALTHOUGH 7 ITA NO.752/K/2 013 SMT. JHARNA GHOSH AY 2005-06 THROUGH LEGAL HEIRS BY ADOPTING THE PROCEDURE PRESC RIBED U/S. 159 OF THE ACT. NEITHER THE AO NOR THE CIT(A) HAS GONE INTO THIS ASPECT DESPITE THE FACT THAT THE VERY ISSUE WAS RAISED BEFORE THE CIT(A). IN TERM OF THE FACTS AND CIRCUMS TANCES, THE ESTATE OF THE DECEASED PERSON CAN BE ASSESSED BY ADOPTING THE PROCEDURE PR ESCRIBED U/S.159 OF THE ACT. ACCORDINGLY, THE RECEIPTS OUT OF THE SALE PROCEEDS OF THE HOUSE PROPERTY OF DECEASED HUSBAND ADDED IN THE HANDS OF THE ASSESSEE BY THE A O AND CONFIRMED BY CIT(A) IS HEREBY DELETED. THE REVENUE, IF LAW PERMITS, CAN TAKE ACTI ON ON LEGAL HEIRS TO TAX THE ESTATE OF THE DECEASED HUSBAND OF THE ASSESSEE AFTER ADOPTING THE PROCEDURE PRESCRIBED U/S. 159 OF THE ACT. ACCORDINGLY, THIS LEGAL ISSUE IS DECIDING IN F AVOUR OF THE ASSESSEE AND ASSESSMENT OF UNEXPLAINED MONEY OF RS. 12.48 LAKHS, INCOME NOT DI SCLOSED DURING THE YEAR RS.15.03 LAKHS AND INCOME NOT DISCLOSED DURING THE YEAR RS.6 ,12,500/- IS DELETED. 2 ITA NO. 728/KOL/2013 SMT. JHARNA GHOSH AY 2005-06 3. LD. COUNSEL FOR THE ASSESSEE IN VIEW OF THE ABOV E STATED THAT ONCE THE PROPERTY IS CONSIDERED TO BE OF ASSESSEES HUSBAND AT THAT POIN T OF TIME THE SALE PROCEEDS ALSO BELONGS TO HIM AND ASSESSMENT SHOULD HAVE BEEN MADE IN THE HANDS OF ASSESSEES HUSBAND LATE SHRI TARUN KUMAR GHOSH. WHEN THIS ORDER OF TRIBUNA L WAS CONFRONTED TO LD. SR. DR, HE WAS UNABLE TO SAY ANYTHING ON THE SAME OR NEITHER H E CONTROVERTED OR CONTESTED THE ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH FA CTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THIS APPEAL OF REVENUE IS COVER ED BY THE TRIBUNALS DECISION IN ASSESSEES OWN CASE IN ITA NO. 756/KOL/2013 DATED 1 7.06.2015 AND THE FINDINGS OF THE TRIBUNAL ARE REPRODUCED ABOVE. IN TERM OF THE ABOV E, THE PROPERTY BELONGS TO ASSESSEES HUSBAND SHRI TARAK KUMAR GHOSH AND CONSEQUENTLY SAL E PROCEEDS AND CASH ARISING OUT OF THE SALE PROCEEDS OF THIS HOUSE PROPERTY, IN WHOSE HAND THE RECEIPTS ARE TO BE ASSESSED AND NOT IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, THI S APPEAL OF REVENUE IS ALSO DISMISSED. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. 9. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26TH NOVEMBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ITO, WARD-54(4), KOLKATA 2 RESPONDENT SMT. JHARNA GHOSH, FLAT 1D, SAMARPAN, 82, SARAT BOSE ROAD, KOLKATA-700 026. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .