Smt.Mamata Prakash Prabhu , Bangalore V. Income Tax Officer Ward-5(3)(5), BAngalore

ITA 764/BANG/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4870 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 13-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURUPRASAD
• Assessee Lawyers: PRATIBHA
• Keywords: Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORESHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 764 / BANG/201 8 ASSESSMENT YEAR : 20 1 2 - 13 SMT. MAMATA PRAKASH PRABHU, D-403, G.R. LEVENDER, J.P. NAGAR, 7 TH PHASE, BANGALORE 560 076. PAN: AFZPP6618M VS. THE INCOME TAX OFFICER, WARD 5 (3) (5), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SMT. PRATIBHA, ADVOCATE RESPONDENT BY : SHRI GURU PRASAD, ADDL. CIT (DR) DATE OF HEARING : 0 9 .04.2018 DATE OF PRONOUNCEMENT : 13 .04.2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT(A)-5, BANGALORE DATED 07.12.2017 FOR ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE LEARNED CIT(A) ERRED IN PASSING THE ORDER IN THE MANNER HE DID. 2. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THA T THE SUBMISSION OF THE APPELLANT TOWARDS THE CAPITAL GAIN HAS BEEN DECLARED IN THE HANDS OF HER HUSBAND AND OUGHT NOT TO HAVE DISALLOW ED IN THE HANDS OF THE APPELLANT. 3. THE LEARNED CIT(A) OUGHT HAVE APPRECIATED THAT T HE ROI AND ASSESSMENT ORDER OF HER HUSBAND IT SHOWS THAT THE C APITAL GAIN HAS BEEN DECLARED AND NO ADDITION IN THE HANDS OF APPEL LANT IS REQUIRED AND OUGHT TO HAVE DELETED THE SAME IN TOTO. 4. WITHOUT PREJUDICE, THE ADDITION/DISALLOWANCE AS CONFIRMED BY THE LEARNED CIT(A) IS ARBITRARY, EXCESSIVE AND OUGHT TO BE DELETED IN TOTO. 5. LEARNED CIT(A) ERRED IN CONFIRMING THE INTEREST U/S.234 OF THE ACT. ITA NO. 764/BANG/2018 PAGE 2 OF 4 6. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 3. BRIEF FACTS ARE THAT IT IS NOTED BY THE AO IN PA RA 4.1 OF THE ASSESSMENT ORDER THAT INFORMATION WAS RECEIVED THAT THE ASSESSEE HAS SOLD ONE IMMOVABLE PROPERTY FOR A CONSIDERATION OF RS. 33.50 LAKHS ON 31.10.2011. THE ASSESSEE WAS ASKED TO FURNISH VARIOUS DOCUMENTS SUCH AS COPY OF PURCHASE AGREEMENT IN RESPECT OF THE SOLD PROPERTY, COPY OF SALE AGREE MENT FOR THE SAME PROPERTY AND DETAILED COMPUTATION OF CAPITAL GAINS ON SALE O F THE IMMOVABLE PROPERTY AND NECESSARY SUPPORTING DOCUMENTARY EVIDENCES IN S UPPORT OF CLAIM OF EXEMPTION / DEDUCTION FROM THE CAPITAL GAINS. IN R EPLY, IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE AO THAT NO INCOME HAS ACCRUED T O THE ASSESSEE AS SHE WAS THE CO-OWNER OF THE PROPERTY. THE AO DECIDED T HE ISSUE AGAINST THE ASSESSEE ON THIS BASIS THAT THE ASSESSEE HAS NOT SU BMITTED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HER CLAIM THAT NO CAPITAL GA IN HAS ARISEN OR ACCRUED IN THE HANDS OF THE ASSESSEE ON SALE OF THE IMMOVABLE PROPERTY. THE AO ALSO NOTED THAT THE ASSESSEE NEITHER FURNISHED THE NAME, PAN AND ADDRESS OF THE OTHER CO-OWNERS OF THE SOLD PROPERTY NOR FURNISHED THE DETAILED COMPUTATION OF CAPITAL GAINS. THE COST OF ACQUISITION IS ALSO NOT PROVIDED BY THE ASSESSEE ALONG WITH THE COPY OF PURCHASE AGREEMENT OF THE SO LD PROPERTY. THE AO HELD THAT IN WANT OF ANY DOCUMENTARY EVIDENCES, IN RESPE CT OF COST OF ACQUISITION OF THE SOLD PROPERTY, THE SAME IS CONSIDERED AS NIL. THE DATE OF ACQUISITION OF THE PROPERTY ALONG WITH DOCUMENTARY EVIDENCES WAS ALSO NOT MADE AVAILABLE AND THEREFORE, HE CONSIDERED IT AS SHORT TERM CAPITAL G AINS WHICH HAS ARISEN ON SALE OF THE IMMOVABLE PROPERTY AND THE AO HAS COMPUTED T HE ENTIRE AMOUNT AS SHORT TERM CAPITAL GAIN OF RS. 33.50 LAKHS. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT SUCCESS AND NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE ME. 4. IN COURSE OF HEARING BEFORE ME, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IT IS NOTED BY CIT(A) IN PARA 5 OF HIS ORDER THAT IT WAS SUBMITTED BY ASSESSEE BEFORE HIM THAT THE ASSESSEE IS CO-OWNER OF THE IMPUGNED P ROPERTY ALONG WITH HER HUSBAND WHICH WAS SOLD FOR A CONSIDERATION OF RS. 3 3.50 LAKHS. SHE SUBMITTED THAT IN SPITE OF THIS, THE LD. CIT(A) HAS DECIDED T HE ISSUE AGAINST THE ASSESSEE ITA NO. 764/BANG/2018 PAGE 3 OF 4 WITHOUT GOING INTO THIS ASPECT AS TO WHETHER THE GA IN IS TAXABLE IN THE HANDS OF THE PRESENT ASSESSEE OR IN THE HANDS OF HER HUSBAND . THE LD. AR OF ASSESSEE SUBMITTED COPY OF THE ASSESSMENT ORDER DATED 25.03. 2015 PASSED BY THE AO IN THE CASE OF ASSESSEES HUSBAND SHRI PRAKASH PRABHU AND DRAWN MY ATTENTION TO PARA NO. 4 OF THAT ASSESSMENT ORDER AND POINTED OUT THAT IT IS NOTED IN THE SAID PARA THAT THE PROPERTY IN QUESTION BEING FLAT NO. 703, 7 TH FLOOR, DOMBVILLI, KALYAN DISTRICT, THANE WAS SOLD ON 14.10.2011 FOR A SALE CONSIDERATION OF RS. 33.50 LAKHS. SHE SUBMITTED THAT IN BOTH ASSESSMENT ORDERS I.E. THE ASSESSMENT ORDER IN THE PRESENT CASE AND IN THE CAS E OF THE HUSBAND OF THE PRESENT ASSESSEE, THERE IS SALE OF THE SAME PROPERT Y ON THE SAME DATE FOR THE SAME AMOUNT OF RS. 33.50 LAKHS AND THIS IS NOTED BY CIT (A) ALSO IN PARA 5 OF THE IMPUGNED ORDER THAT OF THE PROPERTY IN QUESTION , THE ASSESSEE WAS THE CO- OWNER ALONG WITH HER HUSBAND WHICH WAS SOLD FOR CON SIDERATION OF RS. 33.50 LAKHS. SHE FURTHER SUBMITTED THAT THE CAPITAL GAIN ON SALE OF THIS PROPERTY WAS COMPUTED AT RS. 21,33,830/- AS PER PAGE 7 OF THE SA ID ASSESSMENT ORDER PASSED IN THE HANDS OF THE HUSBAND OF THE PRESENT A SSESSEE AFTER ALLOWING INDEXED COST OF ACQUISITION OF RS. 12,16,170/- AND THEREAFTER, AFTER ALLOWING DEDUCTION OF RS. 14,54,415/- U/S. 54 OF IT ACT, NET LONG TERM CAPITAL GAINS WAS COMPUTED AT RS. 6,79,415/- AND IT WAS BROUGHT TO TA X IN THE HANDS OF THE HUSBAND OF THE ASSESSEE AND THEREFORE, THE ADDITION MADE IN THE HANDS OF THE PRESENT ASSESSEE FOR THE SALE OF THE SAME PROPERTY IS NOT JUSTIFIED AND THE SAME SHOULD BE DELETED. THE LD. DR OF REVENUE SUBMITTED THAT NECESSARY EVIDENCE WAS NOT MADE AVAILABLE BEFORE THE AO/CIT(A) AND THE REFORE, THE ASSESSEE DOES NOT DESERVE ANY RELIEF. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT AS PER THE ASSESSMENT ORDER DATED 25.03.2015 PASSED BY THE AO IN THE CASE OF SHRI PRAKASH PRABHU, HUSBAND OF THE PRESENT ASSESSEE, THE ENTIRE SALE CO NSIDERATION OF RS. 33.50 LAKHS WAS CONSIDERED FOR COMPUTING CAPITAL GAIN IN HIS HANDS AND THIS IS NOT THE CASE OF THE AO AS PER THAT ASSESSMENT ORDER THA T FOR ANY PART OF THAT PROPERTY, ANY OTHER PERSON IS A BENEFICIAL OWNER. IT APPEARS THAT THE PROPERTY IN QUESTION IS PURCHASED IN THE JOINT NAMES OF THE PRE SENT ASSESSEE AND HER HUSBAND BUT THE ENTIRE INVESTMENT IS MADE BY THE HU SBAND AND HENCE, IN MY ITA NO. 764/BANG/2018 PAGE 4 OF 4 CONSIDERED OPINION, THE GAIN ON SALE OF SUCH PROPER TY IS TAXABLE ON THE HANDS OF THE HUSBAND BEING BENEFICIAL OWNER AND NO PART OF S UCH GAIN IS TAXABLE IN THE HANDS OF THE WIFE I.E. THE PRESENT ASSESSEE FOR THI S REASON ALONE THAT SHE IS JOINT OWNER AS PER PURCHASE AGREEMENT UNLESS IT IS SHOWN AND ESTABLISHED THAT SHE IS THE BENEFICIAL OWNER ALSO. IN THE PRESENT CASE, THE AO IN THE CASE OF HUSBAND OF THE ASSESSEE SHRI PRAKASH PRABHU, HAS AS SESSED THE ENTIRE GAIN ARISING ON SALE OF THIS IMPUGNED PROPERTY BY WAY OF CONSIDERING THE ENTIRE SALE CONSIDERATION OF RS. 33.50 LAKHS AND HENCE, NO PORT ION OF SUCH GAIN CAN BE TAXED IN THE HANDS OF ANY OTHER PERSON EVEN IN THE HANDS OF THE PRESENT ASSESSEE ALTHOUGH SHE IS THE JOINT OWNER AS PER THE PURCHASES AND SALE DEED BECAUSE THIS IS NOT ESTABLISHED BY THE REVENUE THAT THE PRESENT ASSESSEE IS THE BENEFICIAL JOINT OWNER. HENCE, I HOLD THAT THE ADD ITION MADE BY THE AO IN THE PRESENT CASE IS DOUBLE ADDITION WHICH CANNOT BE SUS TAINED AND HENCE, I DELETE THE SAME. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH APRIL, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.