SMT. DEVENDRA KAUR , ALWAR V. INCOME TAX OFFICER, WARD-1-3, ALWAR

ITA 815/JPR/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7342 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONISHA CHOUDHARY ACIT A
• Assessee Lawyers: GULSHAN MADHAN
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Capital Gains
• Section: 50C; 142(1); 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 815/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2010-11 SMT. DEVENDER KAUR 9, VIKASH PATH, ALWAR. CUKE VS. THE ITO, WARD-1(3), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: GDSPK 2153 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI GULSHAN MADHAN (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. MONISHA CHOUDHARY (ACIT) A LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/02/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT :05/04/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER OF LD. CIT(A), ALWAR DATED 29.03.2019 FOR THE ASSESSMENT Y EAR 2010-11 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL ) HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE INITIATION OF THE PROCEEDINGS U/S 14 7 AGAINST THE ASSESSEE AND IGNORED THE OTHER ASPECT PLACED BEFORE THEM IN SUBMISSION. II) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL ) HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF TH E CASE IN ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 2 CONFIRMING THE ADDITION OF RS. 9,22,312/- IN HANDS OF THE ASSESSEE WHO IS NOT THE OWNER OF THE ASSET. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT IN THIS CASE, NOTICE U/S 148 OF THE I.T. ACT, 1961 WAS ISSU ED TO THE ASSESSEE ON 29.03.2017 ON THE BASIS OF THE INFORMATION IN HIS P OSSESSION THAT THE ASSESSEE HAS SOLD AN IMMOVABLE PROPERTY FOR RS. 6,0 0,000/- VIDE SALE DEED DATED 23.09.2009 TO SH. MAHESH CHAND SHARMA, A LWAR AND SUB- REGISTRAR, ALWAR ADOPTED VALUE OF RS. 14,75,230/- F OR REGISTRATION OF SALE DEED. IN RESPONSE TO NOTICE U/S 148, THE ASSESSEE FILED HER RETURN OF INCOME ON 06.10.2017 DECLARING TOTAL INCOME OF RS. 340/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FILED THE COPY OF SALE DEED SHOWING SALES CONSIDERATION OF RS. 6,00,000/- IN WHICH IT IS CLEARLY MENTIONED THAT SHE IS ONLY GENERAL POWER OF ATTORNE Y HOLDER AND NOT THE OWNER OF THE HOUSE PROPERTY SITUATED AT 4/123 N EB HOUSE BOARD, ALWAR WHICH WAS ALLOTTED BY RAJASTHAN HOUSING BOARD ., ALWAR FOR CONSIDERATION OF RS. 2,89,582/- TO SMT. TRIPTA NURP URI, SISTER OF THE ASSESSEE. IN SUPPORT OF THE ABOVE, COPY OF THE ALL OTMENT LETTER ISSUED BY RAJASTHAN HOUSING BOARD, COPY OF REGISTERED GENE RAL POWER OF ATTORNEY IN FAVOUR OF ASSESSEE BY SMT. TRIPTA NURPU RI AND AN AFFIDAVIT OF SMT. TRIPTA NURPURI AFFIRMING RECEIPT OF SALE CONSI DERATION OF RS. 6,00,000/- FROM THE ASSESSEE WAS SUBMITTED. 3. IT WAS SUBMITTED BY THE LD AR THAT IN THIS CASE THE ASSESSEE COULD NOT PRODUCE SMT. TRIPTA NURPURI FOR VERIFICATION BE FORE THE A.O ALTHOUGH AFFIDAVIT DULY NOTARIZED AFFIRMING THAT THE SALE CO NSIDERATION OF HOUSE NO. 4/123 NEB, HOUSING BOARD RAJASTHAN, ALWAR RECEI VED FROM SMT. ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 3 DEVENDRA KAUR HER SISTER ALONG WITH SALE DEED EXECU TED BY SMT. DEVENDRA KAUR AS GENERAL POWER ATTORNEY HOLD OF SMT . TRIPTA NURPURI, JALANDHAR WAS SUBMITTED. THE A.O HOWEVER MADE THE ADDITION OF RS. 9,22,312/- IN THE HANDS OF THE ASSESSEE WITH TH E FOLLOWING OBSERVATION:- IN THIS CASE SMT. DEVENDRA KAUR W/O SH. MAN MOHAN SINGH HAS SOLD PLOT NO. 4/123, NEB VISTAR, TULEDA HOUSING BOA RD, SCHEME, ALWAR AT RS. 6,00,000/ VIDE SALE DEED DATED 23.09.2 009 TO SH. MAHESH CHAND SHARMA S/O LATE SH. MURLIDHAR SHARMA , 319, ARYA NAGAR SCHEME NO.1, ALWAR WHICH WAS VALUED BY THE SU B REGISTRAR AT RS. 14,75,230 ON WHICH LIABILITY OF CAPITAL GAIN ARISES. THE A/R OF THE ASSESSEE WAS ASKED TO PROVE THE GEN UINENESS OF SALE CONSIDERATION OF RS. 6,00,000/- RECEIVED BY SM T. TRIPTA NURPURI AND ALSO PRODUCE SMT. TRIPTA NURPURI FOR EX AMINATION WITH ALL EVIDENCES ( COPY OF INCOME TAX RETURN AND BANK ACCOUNT STATEMENT FOR A.Y. 2010-11) WHICH PROVES THAT SHE H AS RECEIVED RS. 6,00,000/- FROM SMT. DEVENDRA KAUR AND PAID LON G TERM CAPITAL GAIN TAX ON ABOVE SALE TRANSACTION BUT THE ASSESSEE FAILED TO PRODUCE SMT. TRIPTA NURPURI FOR EXAMINATION. IN VIEW OF THE ABOVE REMARKS THE LIABILITY OF CAPIT AL GAIN IS ARISES ON SMT. DEVENDRA KAUR W/O SH.MAN MOHAN SINGH AND ASSESSMENT ON CAPITAL GAIN IS FRAMED IN HER HAND. ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 4 4. IT WAS SUBMITTED THAT ON APPEAL, THE LD. CIT(A) SUSTAINED THE ADDITION SO MADE BY THE AO AND HIS FINDINGS READ AS UNDER: I HAVE PERUSED THE ASSESSMENT ORDER AS WELL AS SUB MISSION FILED BY THE APPELLANT. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE A.O IS JUSTIFIED IN CALCULATING CAPITAL AGAIN AFTER APP LYING PROVISION OF SECTION 50C OF THE ACT. ACCORDING, THE ADDITION OF RS. 9,22,312/- IS SUSTAINED AND THE APPELLANTS GROUND OF APPEAL O N THE ISSUE IS DISMISSED. 5. IT WAS SUBMITTED THAT THE A.O TREATED SMT. DEVEN DRA KAUR AS OWNER OF THE RESIDENTIAL HOUSE AND IGNORED THE DOCU MENTS FURNISHED FOR ALLOTMENT OF HOUSE TO SMT. TRIPTA NURPURI BY RAJAST HAN HOUSING BOARD. THE LD. COMMISSIONER (APPEALS) FOLLOWED AOS VERSIO N IN THE ORDER AND WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THAT ASSESSEE IS NOT OWNER OF THE HOUSE DISMISSED THE AP PEAL. THE LD. COMMISSIONER (APPEALS) ALSO IGNORED THE TAXABILITY OF LONG TERM CAPITAL GAIN CONTAINED U/S 45 OF THE I.T. ACT, 1961, WHICH CAST LIABILITY OF TAX ON OWNER OF THE ASSET AND NOT ANY OTHER PERSON WHO IS NOT THE OWNER OF THE HOUSE PROPERTY. 6. IT WAS FURTHER SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE THAT THE VALUE OF RS. 14,75,230/- ADOPTED BY THE SUB REGIST RAR FOR REGISTRATION WILL BE ADOPTED IN VIEW OF THE PROVISIONS OF SECTIO N 50C OF THE I.T. ACT, 1961. WHILE PASSING THE ASSESSMENT ORDER, INDEXATIO N COST OF RS. 5,52,918/- WAS WORKED OUT AND REDUCED FROM RS.14,75 ,230/- AND AN AMOUNT OF RS.9,22,312/- WAS QUANTIFIED AS LONG TER M CAPITAL GAIN AND ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 5 THE DEMAND WAS RAISED AGAINST THE ASSESSEE WHO IS N OT ENJOYING THE OWNERSHIP OF THE HOUSE. IT WAS SUBMITTED THAT THE A SSESSEE IS A HOUSE WIFE AND DEPENDENT ON HER HUSBAND AND NO SUBSTANTIA L AMOUNT WAS FOUND DEPOSITED IN HER BANK ACCOUNT DURING THE FINA NCIAL YEAR BY A.O. WHICH MAY LEAD TO THE BELIEF THAT SHE HAS KEPT WITH HERSELF ANY AMOUNT OVER AND ABOVE THE SALE CONSIDERATION OF RS. 6,00,0 00/- AND THEREFORE, INVOCATION OF SECTION 50C IS NOT JUSTIFIED IN THE I NSTANT CASE. IT WAS FURTHER SUBMITTED THAT WITHOUT PREJUDICE TO THE FAC T THAT THE ASSESSEE IS NOT THE OWNER OF THE HOUSE PROPERTY, EVEN AS PER VI EW TAKEN BY THE AO, WHERE THE INDEXED COST OF RS. 5,52,918/- IS REDUCED FROM THE SALE CONSIDERATION OF RS. 6,00,000/-, THE RESULTANT GAIN WORKS OUT TO ONLY RS. 47,082/- WHICH IS WELL BELOW THE THRESHOLD OF T OTAL INCOME CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE. 7. IT WAS SUBMITTED THAT THE LD. CIT(A) IGNORED THE SUBMISSION ALTHOUGH FORMING PART AT PAGE -2 OF THE APPELLATE O RDER, WHICH IS REPRODUCED AS UNDER:- IN THIS CASE NOTICE U/S 148 OF THE I.T. ACT, 1961 WAS ISSUED ON 29.03.2017 THROUGH REGISTERED POST WHICH WAS RECEI VED AFTER 31.03.2018. SUBSEQUENTLY NOTICE U/S 142(1) WAS ISS UED, IN COMPLIANCE TO ABOVE RETURN OF INCOME DECLARING TOTA L INCOME OF RS. 340/- WAS FILED ALONG WITH DOCUMENTS SOUGHT AN D ATTENDED ASSESSMENT PROCEEDINGS TIME TO TIME. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS THE LD. A.O. INFORMED THAT T HE ASSESSEE SOLD OUT A RESIDENTIAL HOUSE TO SH. MAHESH CHAND SH ARMA AS PER SALE DEED DATED 23.09.2009 FOR CONSIDERATION OF RS. 6,00,000/-. WHILE REGISTRATION THE STAMP VALUE WAS ADOPTED RS. 14,75,230/-. ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 6 DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE LD. A.O BROUGHT TO NOTICE THAT THE ASSESSEE WAS GPA HOLDER OF SMT. TRIPTA NURPURI SISTER RESIDING AT JHALANDHAR WHO WAS THE OWNER OF ALLEGED HOUSE 4/113 NEB EXTENTION, WHICH CAN BE SEEN FROM THE COP Y OF SALE DEED FURNISHED. THE ASSESSEE REMITTED THE SALE CONS IDERATION TO HER SISTER SMT. TRIPTA NURPURI. IN SUPPORT OF CONTE NTION AGREEMENT FROM BOTH THE PERSON WERE FILED. THE LD. AO DIRECTED TO PRODUCE SMT. TRIPTA NURPURI TO EXAMINE WHETHER S ALE CONSIDERATION RECEIVED BY HER OR NOT AND ALSO FURNI SH THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR OF SMT. TRI PTA NURPURI AND DECLARED CAPITAL GAIN ON SALE OF THE ABOVE MENT IONED HOUSE IN HER HAND. WHEN THE ASSESSEE HAS NOT EARNED ANY C APITAL GAIN ON SALE OF ANY IMMOVABLE PROPERTY OWNED BY HER, EVE N THEN THE LD. A.O. ASSESSED CAPITAL GAIN IN THE HANDS OF THE ASSESSEE INSTEAD OF DROPPING THE ASSESSMENT PROCEEDINGS BECAUSE INIT IATED U/S 147 OF THE I.T. ACT AGAINST WRONG PERSON AND WITHOU T GOING INTO INFORMATION IN POSSESSION. 8. IT WAS FURTHER SUBMITTED BY THE LD AR THAT THE HONORABLE SUPREME COURT IN THE CASE OF SHIV KUMAR & ANR V/S UNION OF INDIA VIDE CIVIL APPEAL NO. 8003 OF 2019 ARISING OUT OF S LP N0.24726/2019 D.N 25495 OF 2019 HAS HELD THAT THE GPA HOLDER HAS NO RIGHT IN THE PROPERTY AND THE GPA HOLDER IS ONLY AN AGENT UNDER CONTRACT ACT AND THE SAID DECISION SUPPORTS THE CASE OF THE ASSESSEE . IT WAS ACCORDINGLY SUBMITTED THAT NECESSARY RELIEF MAY BE PROVIDED TO THE ASSESSEE BY DELETING THE ADDITION SO CONFIRMED BY THE LD CIT(A) . ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 7 9. PER CONTRA, THE LD. DR SUBMITTED THAT THE AO WAS IN POSSESSION OF RELEVANT INFORMATION THAT THE ASSESSEE HAS SOLD AN IMMOVEABLE PROPERTY AND THE GAINS ARISING THEREOF HAS NOT BEEN REPORTED TO TAX AND THE NOTICE U/S 147 WAS ACCORDINGLY ISSUED AFTER RECORDI NG THE REASONS AND SEEKING REQUISITE PERMISSION FROM THE COMPETENT AUT HORITY. IT WAS ACCORDINGLY SUBMITTED THAT THE AO HAS RIGHTLY ACQUI RED THE JURISDICTION UNDER SECTION 147 AND IN ANY CASE, NO ARGUMENTS HAV E BEEN ADVANCED BY THE LD AR REGARDING GROUND OF APPEAL NO. 1 AND H ENCE, THE SAID GROUND OF APPEAL SHOULD BE DISMISSED. 10. ON MERITS, IT WAS SUBMITTED THAT THE ASSESSEE H AS SOLD A RESIDENTIAL HOUSE SITUATED AT ALWAR TO SH. MAHESH C HAND SHARMA FOR A CONSIDERATION OF RS. 6,00,000/ VIDE SALE DEED DATED 23.09.2009 WHICH WAS VALUED BY THE SUB REGISTRAR AT RS. 14,75,230 ON WHICH LIABILITY OF CAPITAL GAIN CLEARLY ARISES IN THE HANDS OF THE ASS ESSEE EVEN AFTER TAKING INTO CONSIDERATION THE INDEXED COST OF ACQUISITION. REGARDING THE CONTENTION OF THE LD AR THAT THE RESIDENTIAL HOUSE BELONGS TO SMT TRIPTA NURPURI, THE SISTER OF THE ASSESSEE, IT WAS SUBMITT ED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO PROVE THE GENUINENESS OF SALE CONSIDERATION OF RS. 6,00,000/- RECEIVED BY SMT. TRIPTA NURPURI AND ALSO PRODUCE SMT. TRIPTA NURPURI FOR EXAMINATION WHO WAS NOT PRODUCED AND HENCE THE LIABILITY OF CAP ITAL GAIN CLEARLY ARISES IN THE HANDS OF THE ASSESSEE WHO HAS RECEIVE D THE SALE CONSIDERATION AND WHICH HAS BEEN RIGHTLY CONFIRMED BY THE LD CIT(A). SHE ACCORDINGLY RELIED ON THE FINDING OF THE LOWER AUTHORITIES. ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 8 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE TRANSACTION WHICH IS SUBJ ECT MATTER OF PRESENT DISPUTE IS GAINS ARISING ON SALE OF RESIDENTIAL HOU SE NO. 4/123, NEB VISTAR, TULEDA HOUSING BOARD SCHEME, ALWAR IN TERMS OF REGISTERED CONVEYANCE DEED DATED 23.09.2009. WHAT IS THEREFOR E RELEVANT TO DETERMINE IS WHO HAD PURCHASED THE SAID PROPERTY IN ITIALLY AND HAS THE OWNERSHIP RIGHTS OVER SUCH PROPERTY; AT WHAT COST T HE SAID PROPERTY HAS BEEN PURCHASED AND SUBSEQUENT IMPROVEMENTS, IF ANY; WHETHER ANY RIGHTS HAVE BEEN BESTOWED BY THE OWNER OF THE PROPE RTY TO ANY OTHER PERSON AND NATURE OF SUCH RIGHTS; WHO HAS SOLD THE SAID PROPERTY AND IN WHAT CAPACITY; AND FINALLY, TO WHOM THE SAID PLOT O F LAND HAS BEEN SOLD AND AT WHAT CONSIDERATION. ON PERUSAL OF RECORDS, W E FIND THAT THE RAJASTHAN HOUSING BOARD VIDE ITS ALLOTMENT LETTER N O. 4308 DATED 18.03.1998 HAS ALLOTTED THE SAID PROPERTY TO SMT. T RIPTA NURPURI AGAINST PAYMENT OF RS 289,582/- AND THE PAYMENTS RECEIPTS I SSUED IN NAME OF SMT. TRIPTA NURPURI ARE ON RECORD. THEREAFTER, ON 3.01.2008, SMT TRIPTA NURPURI GAVE A GENERAL POWER OF ATTORNEY TO THE ASS ESSEE WHO HAPPENS TO BE HER SISTER WHICH WAS REGISTERED WITH SUB-REGI STRAR, JALANDHAR. THEREAFTER, ON 23.09.2009, THE ASSESSEE AS GENERAL POWER OF ATTORNEY HOLDER SOLD THE PROPERTY ON BEHALF OF SMT TRIPTA NU RPURI FOR A SALE CONSIDERATION OF RS 6,00,000/- VIDE CONVEYANCE DEED REGISTERED WITH SUB-REGISTRAR, ALWAR. IN THE CONVEYANCE DEED SO EX ECUTED BY THE ASSESSEE, IT HAS BEEN STATED THAT THE CONVEYANCE DE ED HAS BEEN EXECUTED BY THE ASSESSEE AS POWER OF ATTORNEY HOLDE R AND THE POWER OF ATTORNEY SO GIVEN BY SMT TRIPTA NURPURI CONTINUES T O REMAIN VALID AND ALSO THE FACT THAT AS ON DATE OF EXECUTION OF THE C ONVEYANCE DEED, SMT TRIPTA NURPURI WAS ALIVE AND SHE HAS NOT CANCELLED THE SAID GENERAL ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 9 POWER OF ATTORNEY. IT HAS ALSO BEEN STATED IN THE CONVEYANCE DEED THAT SMT TRIPTA NURPURI CONTINUES TO ENJOY THE OWNERSHIP RIGHTS AS WELL AS POSSESSION OVER THE PROPERTY AND IN EVENT OF ANY SU BSEQUENT DISPUTE, SHE WILL CONTINUE TO REMAIN RESPONSIBLE. THEREFORE , AS PER DOCUMENTARY EVIDENCE AVAILABLE ON RECORD, THE ASSESSEE HAS EXEC UTED THE CONVEYANCE DEED IN THE CAPACITY OF POWER OF ATTORNE Y HOLDER AND NOT IN THE CAPACITY OF OWNER OF THE PROPERTY AND ACCORDING LY, AS FAR AS POWER OF ATTORNEY DATED 3.1.2008 AND SALE DEED DATED 23.0 9.2009, NOTHING CAN BE INFERRED THAT THE ASSESSEE HAS ACQUIRED THE PROPERTY IN QUESTION AND SUBSEQUENTLY SOLD THE SAME VIDE SALE DEED DATED 23.09.2009 AS OWNER OF THE SAID PROPERTY. THE AO HAS NOT DISPUTE D THESE DOCUMENTS AVAILABLE ON RECORD, HOWEVER FOR THE REASON THAT TH E ASSESSEE HAD FAILED TO PRODUCE SMT TRIPTA NURPURI FOR NECESSARY EXAMINA TION HAS BROUGHT THE SAME TO TAX IN THE HANDS OF THE ASSESSEE. TO O UR MIND, THE ASSESSEE HAS PRODUCED THE NECESSARY DOCUMENTS AND A LSO THE AFFIDAVIT OF SMT TRIPTA NURPURI THAT SHE HAD SOLD THE PROPERT Y AND HAD RECEIVED THE SALE CONSIDERATION FROM THE ASSESSEE AND THUS, HAS DISCHARGED THE PRIMARY ONUS CAST ON HER AND WHERE THE AO STILL HAR BOURS ANY DOUBT, IT WAS INCUMBENT UPON THE AO TO CONDUCT FURTHER ENQUIR Y BY ISSUING SUMMONS AND CALLING SMT TRIPTA NURPURI FOR NECESSAR Y EXAMINATION WHICH THE AO HAS FAILED IN THE INSTANT CASE. THEREF ORE, BASIS MATERIAL AVAILABLE ON RECORD, IT CANNOT BE SAID THAT THE ASS ESSEE HAS SOLD THE PROPERTY IN CAPACITY AS OWNER OF THE PROPERTY RATHE R THE SAME HAS BEEN SOLD IN THE CAPACITY OF POWER OF ATTORNEY HOLDER AN D ON BEHALF OF SMT TRIPTA NURPURI AND ANY CAPITAL GAIN TAX LIABILITY O N SUCH TRANSACTION ARISES IN HANDS OF SMT TRIPTA NURPURI AND NOT IN HA NDS OF THE ASSESSEE. WE FIND THAT SIMILAR ISSUE HAD ARISEN IN CASE OF SHRI GYAN CHAND SAINI ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 10 VS ITO (ITA NO. 87/JP/2019 DATED 25.11.2019), THE COORDINATE BENCH HAS HELD AS UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE TH AT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS SOLD THE LAND IN QUESTION VIDE SALE DEED DATED 14.08.2007 AS A POWER OF ATTORNEY HOLDER OF HANUMAN SAHAI, CHAUTHMAL, GYARSI LAL, PAC HURAM, SHANKAR LAL AND NANCHI LAL. AS PER THE DOCUMENTARY EVIDENCE IT IS CLEAR THAT THE ASSESSEE HAS EXECUTED THE SALE DE ED IN THE CAPACITY OF POWER OF ATTORNEY HOLDER AND NOT IN THE CAPACITY OF OWNER OF THE LAND. FURTHER, THE SALE DEED ALSO MENT IONS THAT THE SALE CONSIDERATION WAS RECEIVED BY THE OWNERS OF TH E LAND PRIOR TO THE DATE OF SALE, HENCE SO FAR AS THE POWER OF ATTO RNEY DATED 16.08.2005 AND SALE DEED DATED 14.08.2007 NOTHING C AN BE INFERRED THAT THE ASSESSEE HAS ACQUIRED THE LAND IN QUESTION AND SUBSEQUENTLY SOLD VIDE SALE DEED DATED 14.08.2007. HOWEVER, THE POWER OF ATTORNEY AND SALE DEED ARE NOT CONCLUS IVE PROOF OF THE FACT THAT THE ASSESSEE HAS NOT PURCHASED THE LA ND IN QUESTION. ONCE THE ASSESSEE HAS DISCHARGED HIS PRIMARY ONUS B Y RELYING ON THESE DOCUMENTS AND THE AO WAS NOT SATISFIED WITH T HESE EVIDENCES, THEN IT WAS INCUMBENT UPON THE AO TO CON DUCT FURTHER ENQUIRY BY EXAMINING THE ORIGINAL OWNERS OF THE LAN D WHO HAVE GIVEN THE POWER OF ATTORNEY IN FAVOUR OF THE ASSESS EE. THE AO INSTEAD OF DISCHARGING HIS DUTY OF CONDUCTING THE E NQUIRY HAS ASKED THE ASSESSEE TO PRODUCE THESE PERSONS. FURTH ER, WHEN THIS IS A CASE OF SALE OF LAND BY EXECUTION OF SALE DEED IN THE CAPACITY OF POWER OF ATTORNEY HOLDER, THEN THE PROCEEDINGS S HOULD HAVE ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 11 ALSO BEEN INITIATED IN CASE OF THESE ORIGINAL OWNER S OF THE LAND. THE AO FAILED TO CONDUCT THE REQUISITE ENQUIRY AND TO ASCERTAIN THE CORRECT FACTS FROM SUCH ENQUIRY BUT HAS SHIFTED THE BURDEN ON THE ASSESSEE TO PRODUCE THESE PERSONS. ACCORDINGLY ON THE PLAIN READING OF THESE DOCUMENTS WHEN IT CANNOT BE SAID T O BE A SALE BY THE ASSESSEE AS AN OWNER OF THE LAND, THEN IN TH E ABSENCE OF ANY FURTHER INVESTIGATION AND ENQUIRY CONDUCTED BY THE AO AND TO BRING ANY MATERIAL OR FACT TO ESTABLISH THAT THE AS SESSEE HAS INITIALLY ACQUIRED THE PROPERTY IN QUESTION AT THE TIME OF POWER OF ATTORNEY DATED 16.08.2005 AND SUBSEQUENTLY SOLD THE SAME VIDE SALE DEED DATED 14.08.2007 IN THE CAPACITY AND IN H IS RIGHT AS AN OWNER OF THE LAND. HENCE IN THE FACTS AND CIRCUMSTA NCES OF THE CASE, WHEN THE AO HAS FAILED TO CONTRADICT THE DOCU MENTARY EVIDENCE, THE ADDITION MADE BY THE AO IN THE HANDS OF THE ASSESSEE IS NOT WARRANTED. THE SAME IS DELETED. 12. IN THE INSTANT CASE ALSO, THE AO HAS FAILED TO CONDUCT ANY ENQUIRY AND BRING ANY MATERIAL OR FACT TO ESTABLISH THAT TH E ASSESSEE HAS INITIALLY ACQUIRED THE PROPERTY IN QUESTION AT THE TIME OF PO WER OF ATTORNEY DATED 3.1.2008 AND SUBSEQUENTLY SOLD THE SAME VIDE SALE DEED DATED 23.09.2009 IN THE CAPACITY AND IN HER RIGHT AS AN O WNER OF THE PROPERTY. IN FACT, WE FIND THAT WHILE COMPUTING CAPITAL GAINS IN THE HANDS OF THE ASSESSEE, THE AO HAS ALLOWED THE COST OF ACQUISITIO N OF RS 289,582 WHICH WAS ACTUALLY THE COST OF ACQUISITI ON PAID BY SMT TRIPTA NURPURI AT THE TIME OF INITIAL ALLOTMENT WAY BACK I N YEAR 1998 WHICH CANNOT BE INFERRED AS COST OF ACQUISITION IN HANDS OF THE ASSESSEE AS ON THE DATE OF EXECUTION OF POWER OF ATTORNEY ON 3.1.2 008. THE SAME THUS ITA NO. 815/JP/2019 SMT DEVENDER KAUR VS. ITO 12 SHOWS THAT THE AO HIMSELF WAS NOT CLEAR AS TO THE T AXABILITY OF THE TRANSACTION IN THE HANDS OF THE ASSESSEE IN ABSENCE OF REQUISITE ENQUIRY AND EXAMINATION. IN LIGHT OF THE AFORESAID DISCUSS ION AND FOLLOWING THE DECISION REFERRED SUPRA, THE ADDITION MADE BY THE A O IN THE HANDS OF THE ASSESSEE IS NOT WARRANTED AND THE SAME IS DIREC TED TO BE DELETED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/04/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05/04/2021. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. DEVENDER KAUR , ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-1(3), ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 815/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR