SHRI BANWARI LAL SHARMA, Jaipur V. ITO, Jaipur

ITA 890/JPR/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74863 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 27-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Question of law
• Section: 143(3); 133(6); 147; 148; 15

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR ( BEFORE SHRI HARI OM MARATHA AND SHRI N.K. SAINI ) ITA NO. 890/JP/2012 ASSESSMENT YEAR: 2008-09 PAN: AKEPS 1038 A SHRI BANWARI LAL SHARMA VS. THE ITO 45B, SANTOSH SAGAR COLONY WARD 2(1) BHARAMPUR COLONY, JAIPUR JAIPUR (APPELLANT) (RESPONDENT) ITA NO. 952/JP/2012 ASSESSMENT YEAR: 2008-09 PAN: ABOPG 3690 H THE ITO VS. SHRI VIVEK GUPTA WARD 2(1) 30, KAMLA GATTA COLONY JAIPUR NEAR GOVIND DEV JI MANDIR KANWAR NAGAR, JAIPUR (APPELLANT) (RESPONDENT) ITA NO. 958/JP/2012 ASSESSMENT YEAR: 2008-09 PAN: AIQPG 9087 M THE ITO VS. SHRI ASHISH GUPTA WARD 2(1) 30, KAMLA GATTA COLONY JAIPUR NEAR GOVIND DEV JI MANDIR KANWAR NAGAR, JAIPUR (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI A.K. KHANDELWAL ASSESSEE BY : SHRI MANISH AGARWAL DATE OF HEARING : 29.01.2014. DATE OF PRONOUNCEMENT : 05.03.2014 2 ORDER PER BENCH : SINCE ALL THESE APPEALS RELATE TO COMMON ISSUE THU S THEY ARE CANVASSED TOGETHER FOR SAKE OF CONVENIENCE. ITA NO. 890/JP/12 [BANWARI LAL SHARMA] THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A)-1, JAIPUR DATED 01.10.2012 FOR THE A.Y. 2008-09 WHEREIN THE A SSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE ORDER PASSED U/S 163 IS CONTRARY TO THE PROVISIONS OF LAW AND VOID-AB-INITI O, THUS THE SAME DESERVES TO BE HOLD AS BAD IN LAW. 1.1 THAT THE LD. CIT(A) HAS NOT CONSIDERED THE SUBM ISSION OF THE APPELLANT AND HAS UPHOLD THE PASSING OF ORDER U/S 163 OF I.T. ACT, 19 61, HENCE THE ORDER PASSED U/S 163 DESERVES TO BE QUASHED. 2. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLD ING THE ASSESSEE AS AGENT OF SMT. PAMELA JEAN, ARBITRARILY, WHEN THE ASSESSEE HAS DIS CHARGED HIS ONUS BY PROVIDING THE LOCAL ADDRESS OF HER. 2.1. FURTHER THAT THE LD. CIT(A) HAS GROSSLY ERRED IN NOT APPRECIATING THE FACT THAT THE LD. AO HAS NOT CONDUCTED ANY ENQUIRY UNDER THE INCO ME TAX ACT, 1961 AGAINST SMT. PAMELA JEAN, WHEN HER LOCAL ADDRESS WAS AVAILA BLE WITH THE DEPARTMENT BEFORE FIXING THE ASSESSEE AS REPRESENTATIVE ASSESS EE OF HER. 2.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE MATERIAL ON RECORD. BRIEFLY STATED THE FACTS OF THE CASE ARE TH AT THE ASSESSEE WAS APPOINTED AS ATTORNEY IN RESPECT TO THE PROPERTIES SITUATED AT 55, ALEXAN DER COMPOUND, AGRA ROAD, JAIPUR VIDE A DULY EXECUTED INSTRUMENT TITLED AS POWER OF ATTO RNEY ON 21.03.2005 AND ON THE BASIS OF SUCH ATTORNEY, THE ASSESSEE EXECUTED TWO SALE AGREE MENTS THROUGH WHICH THE IMMOVABLE PROPERTY OWNED BY SMT. PAMELA COLLECO WAS TRANSFERR ED TO TWO INDEPENDENT BUYERS FOR A 3 TOTAL CONSIDERATION OF RS. 3.00 CRORES (RS. 1.50 CR ORES EACH) AND SINCE THE SALE PROCEEDS WERE RECEIVED AGAINST THE SAID PROPERTIES BY THE AS SESSEE THEREFORE THE ASSESSEE IS HELD AS AGENT OF SMT. PAMELA COLLECO FOR A.Y. 2008-09 IN RE SPECT OF HER INCOME FROM CAPITAL GAIN ON SALE OF THE ABOVE STATED IMMOVABLE PROPERTY IN TERMS OF THE PROVISIONS OF SECTION 163(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT FO R SHORT). 2.2 AGGRIEVED, THE ASSESSEE WENT IN APPEAL WHERE TH E LD. CIT(A) UPHELD THE ACTION THE AO GIVING NO RELIEF TO THE ASSESSEE. 2.3 NOW THE ASSESSEE IS IN APPEAL BEFORE US AND HAV E RAISED FOLLOWING GROUNDS. 2.4 ALL THESE GROUNDS IN ASSESSEES APPEAL PERTAIN TO THE ACTION OF LOWER AUTHORITIES HOLDING HIM AS AGENT AND REPRESENTATIVE ASSESSEE FO R THE NRI OWNER SMT. PAMELA COLLECO IN TERMS OF THE PROVISIONS OF SECTION 163(1) OF THE ACT. BEFORE US, IT WAS STATED BY THE LD. AR THAT NO PROPER OPPORTUNITY WAS PROVIDED TO ASSES SEE BEFORE PASSING THE ORDER U/S 163 OF THE ACT AND TO SUPPORT THIS VERSION, THE LD. A/R HAS MADE WRITTEN SUBMISSIONS WHICH IS REPRODUCED AS UNDER: AT THE OUTSET, IT IS SUBMITTED THAT THE LD. AO HAS ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 FOR MAKING ASSESSMENT OF A NON RESIDE NT BY IGNORING THE FACT THAT THE DCIT MUMBAI HAD JURISDICTION TO UNDERTAKE THE ASSESSMENT OF A NON RESIDENT. A REPRESENTATIVE ASSESSEE CAN BE ASSESSED ONLY BY THE DCIT, MUMBAI A ND NONE ELSE. IN THE PRESENT CASE, THE ORDER U/S 163, NOTICE U/S 148 AND THE CONSEQUEN T ORDER U/S 147 / 143(3) WAS PASSED BY THE ITO, WARD 2(1), JAIPUR WHO THOUGH HAVE HAD THE TERRITORIAL JURISDICTIONAL OVER THE INDIVIDUALS HOWEVER DOES NOT HAVE THE JURISDICTION TO ASSESS IN THE CAPACITY OF REPRESENTATIVE OF THE NON- RESIDENT WHICH IS WITH T HE DCIT, MUMBAI ONLY THUS THE ENTIRE PROCEEDINGS ARE WITHOUT ANY JURISDICTION AND THEREF ORE DESERVES TO BE HOLD AS ILLEGAL AND VOID-AB-INITIO. IN THIS REGARD RELIANCE IS PLACED O N THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CESC LTD. AND OTHER VS. DCIT A ND OTHERS REPORTED IN 263 ITR PAGE 402 WHEREIN IT HAS BEEN HELD AS UNDER: NON RESIDENT JURISDICTION PLACE OF ASSESSMENT AUTHORITIES IN MUMBAI ALONE CONFERRED JURISDICTION TO ASSESS NON RESIDENT NOT ICE ISSUED BY DCIT MUMBAI TO ASSESS PERSON IN CALCUTTA AS AGENT OF NON RESIDENT NOTIC E VALID INCOME TAX ACT, 1961, S.120. 4 THE LD. CIT(A) HAS HELD THE APPELLANT AS POWER OF A TTORNEY HOLDER OF PAMELA COLLECO ON FOLLOWING GROUNDS:- 1. THE ASSESSEE HAS FAILED TO GIVE EVIDENCE REGARDING ACTUAL ADDRESS OF MS. PAMELA COLLECO. 2. THERE IS NO INFORMATION OR EVIDENCE ON RECORD THAT HER CASE WAS BEING ASSESSED IN MUMBAI. 3. THE LD. AO SENT NOTICE U/S 133(6) TO HER AT MUMBAI ADDRESS BUT NO REPLY WAS RECEIVED. ALL THE ABOVE ALLEGATION OF THE LD. CIT(A) DO NOT F IND FORCE IN VIEW OF FOLLOWING FACTS:- 1. THE ASSESSEE HAS INFORMED COMPLETE LOCAL ADDRESS TO THE LD. AO OF SMT. PAMELA COLLECO AND SAME WAS ALSO MENTIONED IN THE SALE DEE D AND FURTHER STATED THAT SHE WAS AVAILABLE IN INDIA AT THE TIME OF EXECUTION OF SALE DEED. 2. FURTHER ONLY A SINGLE NOTICE ISSUED U/S 133(6) TO H ER AT MUMBAI ADDRESS WHICH WAS DULY SERVED ON HER AS THE SAME WAS NOT RETURNED BAC K BY THE POSTAL AUTHORITIES BEING REMAINED UNSERVED. THOUGH, NO REPLY WAS RECEI VED AGAINST THE SAID NOTICE, HOWEVER, HAD THE LD. AO BEEN MADE ANY FURTHER ENQUI RY AT HER LOCAL ADDRESS HE WOULD HAVE BEEN ABLE TO LOCATE HER. BUT THE LD. AO WITHOUT MAKING ANY FURTHER ENQUIRY AND MAKING FURTHER EFFORTS HAS HOLD THAT SM T. PAMELA COLLECO WAS NOT AVAILABLE IN INDIA. IT IS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS FUL LY IGNORED THE FACT THAT THE JURISDICTION FOR ASSESSMENT OF NON RESIDENT HAS BEEN CONFERRED O NLY UPON THE AUTHORITIES AT MUMBAI AND ALL NON RESIDENTS ARE ASSESSED AT MUMBAI.THE RE LEVANT OBVERSATION OF THE HONBLE CALCUTTA HIGH COURT IN THIS REGARD IS REPRODUCED AS UNDER (PAGE 412 PARA B) :- IT IS AN ADMITTED PROPOSITION THAT THE JURISDICTIO N FOR ASSESSMENT OF NON- RESIDENTS HAS BEEN CONFERRED ONLY UPON THE AUTHORITIES AT MUM BAI. ALL NON- RESIDENTS ARE ASSESSED AT MUMBAI. THE JURISDICTION RELATING TO SU CH ASSESSMENT BY THE DEPUTY CIT, MUMBAI, CANNOT BE QUESTIONED. THE SAID PROCEED ING CAN- NOT BE TAKEN UP ANYWHERE ELSE IN INDIA. IN CONNECTION WITH SUCH PRO CEEDINGS, THE DEPUTY CIT, MUMBAI, HAD AUTHORITY TO SUMMON OR ASK FOR INFORMAT ION FROM ANY PERSON THROUGHOUT INDIA IN CONNECTION WITH SUCH PROCEEDING S. IT IS THEREFORE SUBMITTED THAT OBSERVATIONS OF THE LD. CIT(A) ARE WITHOUT PROPERLY APPRECIATING THE FACTS OF CASE, THUS THE SAME DESER VE TO BE IGNORED AND EXCLUDED AND SINCE THE AO DOES NOT HAVE THE JURISDICTION TO ASSESS IN THE CAPACITY OF REPRESENTATIVE OF THE NON RESIDENT WHICH IS WITH THE DCIT, MUMBAI ONLY TH US THE ENTIRE PROCEEDINGS ARE WITHOUT ANY JURISDICTION AND THEREFORE DESERVES TO BE HOLD AS ILLEGAL AND VOID-AB-INITIO.. WITHOUT PREJUDICE TO ABOVE, IT IS FURTHER SUBMITTED AS UNDER: 1. THE ORDER DATED 24.03.2011 PASSED U/S 163 WAS ILLEG AL: 5 1.1 DENIAL OF FAIR OPPORTUNITY OF HEARING AMOUNTS TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE: IT IS NOW A WELL ESTABLISHED LAW THAT AN ORDER PRE JUDICIAL TO ASSESSEE CANNOT BE PASSED WITHOUT AFFORDING TO THE ASSESSEE AN OPPORTU NITY OF BEING HEARD, AND ANY EMPTY FORMALITY DONE IN THIS REGARD DOES NOT FULFIL L THIS REQUIREMENT, RATHER A FAIR OPPORTUNITY MUST BE GRANTED. THIS IS A VITAL P ART OF THE PRINCIPLES OF NATURAL JUSTICE WHICH INADVERTENTLY ARE REQUIRED TO BE FOLL OWED IN THE DEPARTMENTAL PROCEEDINGS. ANY INSTANCE REPORTING IGNORANCE TO TH E PRINCIPLES OF NATURAL JUSTICE WHICH IS HIGHLY PREJUDICIAL TO THE INTEREST S OF ASSESSEE (AS IS THE CASE WITH ASSESSEE) CAN VITIATE THE ENTIRE PROCEEDINGS. 1.2 THE ASSESSING OFFICER WAS NOT EMPOWERED TO PROC EED EX-PARTE IN THE CIRCUMSTANCES OF THE CASE : HAVING STATED THE ABOVE LEGAL POSITION, IT IS SUBM ITTED THAT IN THE INSTANT CASE, THE OPPORTUNITY OF HEARING WAS DENIED TO THE ASSESS EE WHILE PASSING THE ORDER U/S 163 OF INCOME TAX ACT, 1961. IT MAY BE NOTED BY YOU R HONOURS THAT WHILE INITIATING PROCEEDINGS U/S 163, A NOTICE WAS ISSUED TO THE ASSESSEE TO SHOW CAUSE AGAINST HIS PROPOSED APPOINTMENT AS AGENT OF SMT. P AMELA COLLECO UNDER THE SAID SECTION. IN RESPONSE TO SUCH NOTICE, REPLY WAS DULY FILED BEFORE THE LD. A.O. WHEREIN THE PROPOSAL TO APPOINT ASSESSEE AS AGENT W AS STRONGLY CONTESTED AND AGITATED ON THE GROUND THAT WHILE THE NON-RESIDENT LADY SMT. PAMELA COLLECO HERSELF IS AVAILABLE AT THE ADDRESS SPECIFIED IN TH E SALE DEED ITSELF, THERE IS NO REASON TO APPOINT ASSESSEE AS HER AGENT, PARTICULAR LY WHEN ASSESSEE WAS A MERE POWER OF ATTORNEY HOLDER IN RESPECT OF THE AFOREMEN TIONED LAND. HOWEVER, THE LD. A.O. BRUSHED ASIDE THE REPRESENTATION MADE BY A SSESSEE MERELY ON THE SCORE THAT THE POWER OF ATTORNEY COULD NOT BE FILED ALONG WITH THE SUBMISSIONS. IT MAY BE NOTED THAT THIS IN ITSELF IS NOT A PLAUSIBLE GRO UND TO REJECT THE ENTIRE SUBMISSION AND IN CASE, IF THE LD. A.O. PROCEEDS TO REJECT SUCH SUBMISSIONS THEN A SECOND OPPORTUNITY MUST BE GIVEN, MORE PARTICULAR LY WHEN THE ASSESSEE WAS WILLING TO FURNISH THE SAME ON NEXT HEARING, WHICH HOWEVER WAS NEVER AFFORDED TO HIM. THE LD AO BY ARBITRARILY REJECTING THE SUBM ISSIONS MADE, PROCEEDED TO PASS THE ORDER WITHOUT PROVIDING ANY SINGLE OTHER O PPORTUNITY TO ASSESSEE SO AS TO ENABLE HIM TO REPRESENT HIS CASE. THIS CLEARLY S HOWS HASTE ON PART OF THE A.O. TO PASS THE IMPUGNED ORDER. OTHERWISE, HAD THE PROP ER PROCEDURE BEEN FOLLOWED SECOND OPPORTUNITY OF HEARING OUGHT TO HAVE BEEN PR OVIDED. MERE ABSENCE OF AUTHORIZATION THOUGH ALLOWS THE ASSESSING OFFICER T O REJECT THE SUBMISSION BUT IN NO CASE IT EMPOWERS THE A.O. TO PROCEED EX PARTE . RELIANCE IS PLACED ON DECISION OF HONBLE INCOME-T AX APPELLATE TRIBUNAL MUMBAI BENCH GIVEN IN CASE OF SAIPEM UK LTD. V. DEP UTY DIRECTOR OF INCOME- TAX (INTERNATIONAL TAXATION) [2008]REPORTED IN 298 ITR (A.T.) 0113, WHEREIN THE HONBLE BENCH HAS HELD AS UNDER: REPRESENTATIVE ASSESSEE NON RESIDENT AGENT OF NON RESIDENT CONDITION PRECEDENT TO TREAT PERSON AS AGENT OF NON RESIDENT MEANINGFUL OPPORTUNITY TO BE HEARD NOTICE ISSUED TO ASSESSEE AT OLD ADDRESS AT JAMNAGAR RETURNED UNSERVED NO PROOF THAT NOTICE ISSUED AT LONDON OF FICE NO OPPORTUNITY TO BE 6 HEARD ORDER TREATING ASSESSEE AS AGENT OF NON RES IDENT NOT VALID INCOME TAX ACT, 1961, S. 163. THUS, THE ORDER SUFFERS FROM SEVERE ILLEGALITY IN THE PROCEDURE FOLLOWED. 1.3 ENTIRE PROCEEDINGS ARE LIABLE TO BE QUASHED IN VIEW OF THE ILLEGALITY EMBEDDED IN THE PROCEDURE FOLLOWED: IT HAS CLEARLY BEEN EXPLAINED IN THE PRECEDING PAR AGRAPH THAT THE ORDER DATED 24.03.2011 U/S 163 IS DEFECTIVE IN NATURE BEING VIO LATIVE OF THE PRINCIPLES OF NATURAL JUSTICE AND IN VIEW OF THE ILLEGALITY IN TH E PROCEDURE FOLLOWED. 1.4 THIS DEFECT CANNOT BE CURED AT THIS STAGE, AS T HE HONBLE TRIBUNAL IS NOT A FACT FINDING AUTHORITY BUT AN APPELLATE FORUM: THE ILLEGALITY INVOLVED IN THE PROCEDURE FOLLOWED HAS INFECTED THE VERY CORE THE ENSUING PROCEEDINGS AS THE ORDER U/S163 IS THE VERY BASE FOR THESE PROCEEDINGS. AND THUS, THIS DEFECT CANNOT BE CURED AT THIS STAGE BEFORE THE APPELLATE AUTHORITY. THE HONBLE TRIBUNAL IS NOT A FACT FINDING AUTHORIT Y AND THUS, CANNOT ENTERTAIN THE OBJECTIONS OF THE ASSESSEE AGAINST HIS PROPOSED APPOINTMENT AS AGENT U/S 163. THUS, IN THE INTERESTS OF JUSTICE, THE IMPUGNE D ORDER IS LIABLE TO BE QUASHED OR THE ENTIRE PROCEEDINGS ARE LIABLE TO BE SENT BAC K FOR CONSIDERATION DE NOVO. 2. NO EFFORT HAS BEEN MADE TO TAX THE REAL OWNER OF PR OPERTY IN RESPECT OF WHICH CPITAL GAINS HAVE ACCRUED: 2.1 WHEN THE NON-RESIDENT HERSELF IS AVAILABLE TO B E PROCEEDED WITH ASSESSMENT PROCEEDINGS, IT WAS NOT LAWFUL FOR THE A.O. TO ASSE SSES THE APPELLANT IN RESPECT OF AN INCOME WHICH SHOULD HAVE BEEN ASSESSED IN THE HA NDS OF NON-RESIDENT DIRECTLY: IT IS WELL UNDERSTOOD THAT IF THE NON-RESIDENT HIM SELF/HERSELF IS AVAILABLE IN THE COUNTRY, AND CAN BE ASSESSED FOR INCOME ACCRUED OR ARISEN TO HIM/HER IN INDIA. IN THE INSTANT CASE ALSO, AT THE TIME WHEN CAPITAL GAI NS FROM THE TRANSFER OF SAID LANDS AROSE IN FAVOUR OF NON-RESIDENT, THE LADY SMT . PAMELA COLLECO HERSELF WHO WAS THE REAL OWNER OF THE PROPERTY AND WAS RESIDING IN THE COUNTRY AT HER LOCAL ADDRESS IN INDIA. THE SAID ADDRESS WAS MENTIONED ON THE SALE DEED ITSELF AND WAS DULY SUPPLIED TO THE LD. A.O. THEREFORE, THE LD. A. O. WAS OBLIGED TO MAKE SUBSTANTIAL INQUIRIES FROM THE LADY HERSELF. THE LD . AO HAS NOT MADE ANY EFFORT TO TAX THE INCOME ARISE OF SALE OF ABOVE PROPERTY I N THE HANDS OF REAL OWNER. HOWEVER, THE LD. AO HAS MERELY DONE AN EMPTY FORMA LITY IN THE NAME OF ENQUIRY AGAINST SMT. PAMELA COLLECO. HE HAD ISSUED JUST ONE NOTICE U/S 133(6) OF THE INCOME TAX ACT, 1961. 2.2 MERE EMPTY FORMALITY WAS DONE ON THIS ISSUE BY THE ASSESSING OFFICER IN THE NAME OF INQUIRY: HOWEVER, LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS HAS REJECTED THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT AN INQUIRY WAS CONDUCTED BY THE AO BY SENDING A NOTICE U/S 133(6) TO MS. PAMELA COL LECO AT THE ADDRESS IN INDIA 7 GIVEN IN THE SALE DEED. HOWEVER, NO REPLY WAS RECEI VED. NOT RECEIVING REPLY TO A SINGLE (FIRST) NOTICE DOES NOT AUTOMATICALLY EMPOWE R THE AO TO RESORT TO SECTION 161 INSTEAD OF A SIMPLE DIRECT ASSESSMENT ON THE OW NER OF LAND. WHILE REJECTING THIS CONTENTION OF THE ASSESSEE, THE LD. CIT(A) HAD FAILED TO APPRECIATE THE FACT THAT THE NOTICE STATED TO HAVE BEEN ISSUED U/S 133( 6) DATED 20.10.2011 TO SMT. PAMELA COLLECO AT HER LOCAL ADDRESS IN INDIA WAS DU LY SERVED ON HER AND HAS NOT RETURNED UN-SERVED, HOWEVER THE REPLY WAS NOT RECEI VED. THERE IS NO ADVERSE FINDING IN THE ORDER THAT THE ADDRESS WAS WRONG OR THAT NOTICE COULD NOT BE SERVED FOR ANY OTHER REASON. THE LD. AO WAS SUPPOSE D TO MAKE FURTHER ENQUIRY BY SENDING AT LEAST ONE MORE NOTICE OR BY DEPUTING THE CONCERNED AREA INSPECTOR TO INVESTIGATE AND FIND OUT THE TRUE STATE OF AFFAI RS. MERELY ON THE BASIS OF FACT THAT REPLY WAS NOT RECEIVED FROM THE NON-RESIDENT L ADY, IT CANNOT BE PRESUMED THAT THE ADDRESS MENTIONED WAS WRONG PARTICULARLY W HEN THE NOTICE WAS DULY SERVED AT THE GIVEN ADDRESS. IT MUST BE NOTED THAT THE ASSESSEE IS NOT A GENERAL POWER OF ATTORNEY HOLDER SO AS TO BE LIABLE IN RESP ECT OF ANY ACT OF THE LADY, BUT IS MERELY A SPECIFIC POWER OF ATTORNEY HOLDER AND J UST IN RESPECT OF THE SAID LAND. AND, THUS ASSESSEE IS NOT AT ALL LIABLE TO BEAR THE CONSEQUENCES OF FAILURE ON PART OF THE LADY TO FURNISH REPLY TO THE NOTICE. MOREOVE R, IT IS A FACT THAT WHEN REPLY WAS NOT RECEIVED FROM THE LADY, DEPARTMENT HAD EVER Y POWER IN ITS HANDS TO TRACE OUT THE LADY AND EXTRACT INFORMATION OUT OF H ER, WHICH EXERCISE WAS NEVER UNDERTAKEN AND FOUND IT A MORE CONVENIENT OPTION TO TIE THE KNOT AROUND POOR ASSESSEES NECK, RATHER THAN TAKING PAINS TO MAKE I NQUIRIES AND CONSEQUENTLY ASSESS THE LADY DIRECTLY. THE LD. AO HAD NEITHER MA DE ANY FURTHER ENQUIRY NOR BROUGHT ON RECORD ANY EVIDENCE TO HOLD THAT SMT. PA MELA COLLECO WAS NOT AVAILABLE IN THE INDIA. THE LD. AO HAS NOT ISSUED A NY FURTHER NOTICE / LETTER IN THE MATTER TO BRING THE REAL OWNER OF THE PROPERTY INTO TAX NET BUT TO HOLD THE ASSESSEE AS REPRESENTATIVE ASSESSEE U/S 163. THE DE PARTMENT COULD VERY WELL PROCEED TO ASSESS HER TOWARDS THE TAX LIABILITY, IF ANY, FOR THE TRANSACTION MADE BY HER IN INDIA. THUS THE OBSERVATION OF THE LD. CI T(A) DESERVES TO BE IGNORED AND EXCLUDED. THE LD. AO OUGHT TO HAVE MADE THE ENQUIRY TO BRING THE REAL OWNER OF THE PROPERTY INTO TAX NET BUT THE LD. AO OPTED TO HOLD THE ASSESSEE AS REPRESENTATIVE ASSESSEE IN TERMS OF PROVISIONS OF SECTION 163. IT IS FURTHER SUBMITTED THAT THE ASSESSEE HAS DISCHARGED HIS OBLIGATION U/S 163 OF T HE INCOME TAX ACT, 1961 WHEN THE LOCAL ADDRESS OF A NON-RESIDENT IS INFORME D TO THE DEPARTMENT AND THEREFORE THE ASSESSEE IS NOT LIABLE FOR ANY LIABIL ITY IN TERMS OF THE SECTION 163 OF THE INCOME TAX ACT, 1961. 2.5 PER CONTRA, THE LD. CIT ( DR) HAS SUPPORTED T HE ORDER OF THE AO AND JUSTIFIED THE ACTION OF THE AO OF TREATING THE ASSESSEE AS AG ENT OF SMT. PAMELA COLLECO. 2.6 AFTER CAREFULLY CONSIDERING THE RIVAL SUBMISSIO NS ON THIS ISSUE AND FURTHER GOING THROUGH THE DECISIONS RELIED UPON BY THE LD. AR, WE ARE OF THE CONSIDERED OPINION THAT THE 8 JURISDICTION IN THE CASE OF NRI SMT. PAMELLA COLLE CO IS NOT CONFINED TO MUMBAI AND IT APPLIES TO THOSE CASES ONLY WHERE NO LOCAL CONNECTI ON IN ANY MANNER OF SUCH NRI IS AVAILABLE. IN THIS CASE, ADMITTEDLY, THE ASSESSEE I S AVAILABLE IN THE CAPACITY OF POWER OF ATTORNEY HOLDER AND ACTED ON HER BEHALF WHILE EXECU TING SALE DEEDS BEFORE THE REVENUE AUTHORITIES AND HAD RECEIVED THE SALE CONSIDERATION IN INDIA ON HER BEHALF. FROM THE RECORDS IT IS REVEALED THAT THE PAYMENTS RECEIVED B Y THE ASSESSEE WERE NOT TRANSFERRED TO THE REAL OWNER OF THE PROPERTY BY THE ASSESSEE. THE LD. CIT(A) HAS ALSO DEALT WITH THIS ISSUE IN DETAIL. WE DO NOT FIND ANY INFIRMITY IN T HE FINDINGS GIVEN BY THE LD. CIT(A) IN PARA 4.1 TO 4.3 OF HIS ORDER, WHICH ARE BEING REPRO DUCED FOR READY REFERENCE AS UNDER: 4.1 THE ORDER U/S 163 AND SUBSEQUENT ORDER U/S 147 / 143(3) HAVE BEEN CHALLENGED ON THE BASIS OF THE JUDICIAL PRONOUNCEME NT BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CESC LTD . AND OTHERS VS. DCIT 263 ITR 402. 4.2 I HAVE CAREFULLY PERUSED THE ORDER RELIED ON BY THE AR. BEFORE DISTINGUISHING THE ORDER ON FACTS FROM THE FACTS OF THE CASE OF THE ASSESSEE, I WOULD LIKE TO QUOTE THE OBSERVATION OF THE HONBLE CALCUTTA HIGH COURT WHILE DECIDING THE MATTER OF JU RISDICTION IN THE CASE RELIED ON BY THE AR THE QUESTION OF JURISDICT ION SEEMS NOT SO EASY TO ANSWER. A QUESTION OF LAW IS ALWAYS DEPENDE NT ON THE GIVEN FACTS. WITHOUT THE FACTS, NO PROPOSITION OF LAW CAN BE FOUNDED. THE PROPOSITION MAY BE AN ABSTRACT ONE BUT WHEN IT COME S TO APPLICATION, IT HAS TO BE APPLIED ON THE FACTS AND THE FACTS ARE THE FACTORS ON WHICH THE APPLICATION OF THE ABSTRACT LAW WOULD DEPEND. T OP WHAT EXTENT IT WOULD APPLY AND TO WHAT EXTENT IT WOULD NOT, IS A Q UESTION DETERMINABLE BY COURTS. WHEN IT IS A QUESTION OF DI SCRETION, THE COURT HAS EVERY LIBERTY TO EXERCISE OR NOT TO EXERCISE TH E DISCRETION. NORMALLY A COURT WOULD BE SLOW TO EXERCISE ITS DISC RETION, IN A GIVEN FACT, UNLESS IT APPEARS THAT IT IS NECESSARY FOR TH E ENDS OF JUSTICE AND THAT THE ABSENCE OR LACK OF JURISDICTION IS GLARING AND IS APPLICABLE OF BEING DECIDED CONCLUSIVELY. IF THE QUESTION IS DEPE NDENT ON DETERMINATION OF QUESTION OF FACTS, NORMALLY THE CO URT SHOULD BE VERY SLOW IN INTERFERING. 4.3 THUS THE HONBLE CALCUTTA HIGH COURT WAS CATEGO RICAL IN ITS FINDING THAT THE MATTER OF JURISDICTION IN THE CASE OF REPR ESENTATIVE ASSESSEE WAS TO BE DECIDED ON THE FACTS BECAUSE IT IS ON THE FACT STHAT THE 9 APPLICATION OF LAW WOULD DEPEND. THE FACTS OF THE C ASE RELIED ON BY THE AR ARE THAT CESC HAD ENGAGED L & P AS ITS LAWYE RS IN RESPECT OF SOME OF ITS DEALS. IN RESPECT OF SUCH DEALS, THE CE SC HAD MADE PAYMENT TO L & P. CESC HAD ALSO DEDUCTED TAX U/S 19 5, BEFORE MAKING PAYMENT TO L & P. SUCH DEDUCTION WAS MADE WI TH THE APPROVAL OF THE AO OF THE CESC HAVING JURISDICTION TO ASSESS THE INCOME OF CESC, AS WELL AS WITH THE APPROVAL OF THE RBI. THE L & P HAD RECEIVED INCOME FROM THE CESC. THEREFORE, U/S 1 63(1)(B) AND (C), THE CESC IS A DEEMED AGENT OF L & P. AS SUCH A GENT, IT WAS SOUGHT TO BE TREATED AS REPRESENTATIVE ASSESSEE O F THE NON-RESIDENT. THE ASSESSMENT OF THE NON-RESIDENT WAS BEING MADE A T THE HANDS OF THE NON-RESIDENT BEFORE THE DEPUTY CIT, MUMBAI, WHO HAD JURISDICTION TO DEAL WITH THE ASSESSMENT. UPON RECE IPT OF THE NOTICE FROM DCIT, MUMBAI, THE CESC HAD SUBMITTED TO THE JU RISDICTION AND HAD REPRESENTED THE CASE. THE HONBLE HIGH COUR T OBSERVED THAT :IN ITS INDIVIDUAL CAPACITY THE REPRESENTATIVE MAY BE SUBJECT TO ASSESSMENT OF THE AUTHORITIES UNDER THE STATUTE AT CALCUTTA. BUT WHEN IT IS NOT BEING ASSESSED IN ITS INDIVIDUAL CAPACITY BUT IN THE CAPACITY OF REPRESENTATIVE OF THE NON-RESIDENT, WHO IS BEING ASSESSED BY THE DEPUTY CIT, MUMBAI, THE JURISDICTION OF THE TAXING AUTHORITY IS WITHIN THE TERRITORIAL LIMITS OF THE HIGH COURT AT BOMBAY. SHRI BANWARI LAL SHARMA THE APPELLANT HAS CONSISTE NTLY FAILED TO GIVE ANY EVIDENCE REGARDING THE WHEREABOUTS AND ACT UAL ADDRESS OF MS. PAMELA JEAN KOLEKO. HER ADDRESS WAS MENTIONED O NLY IN THE SALE DEED SIGNED AND DRAFTED BY THE APPELLANT. THER E IS NO INFORMATION OR EVIDENCE ON RECORD THAT HER CASE WAS BEING ASSESSED IN MUMBAI OR THAT SHE HAD EVEN FILED HER RETURN AS A NON-RESIDENT IN MUMBAI. THE AO HAD SENT A NOTICE U/S 133(6) TO HER AT THE ADDRESS GIVEN IN THE SALE DEED IN MUMBAI BUT NO REPLY WAS R ECEIVED. THESE THREE FACTS DISTINGUISH THE CASE OF THE ASSESSEE FR OM THE CASE RELIED ON BY THE AR THAT IS CESC LTD. VS. DCIT. IN THIS CA SE PROPERTY OF VERY HIGH VALUE RECORDED IN THE BOOKS OF REVENUE DE PARTMENT OF THE STATE GOVT. IN THE NAME OF MS. PAMELA JEAN KOLEKO W AS TRANSFERRED BY SHRI BANWARI LAL SHARMA AS AN AUTHORIZED REPRESE NTATIVE AND THE PAYMENT WAS RECEIVED IN HIS BANK ACCOUNT AND WAS NE VER TRANSFERRED TO MS. PAMELA JEAN KOLEKO AS PER EVIDENCE AVAILABLE ON RECORD. MS. PAMELA JEAN KOLEKO WAS NOT BEING ASSESSED ANYWHERE IN INDIA. THEREFORE, GIVEN THE ABOVE DISCUSSION IT IS HELD TH AT THE FACTS OF THE CASE OF THE ASSESSEE ARE COMPLETELY DIFFERENT FROM THE FACTS OF THE CASE RELIED ON BY THE ASSESSEE AND SO THE FINDING O F THE HONBLE CALCUTTA HIGH COURT IS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE. RELIANCE WAS ALSO PLACED BY THE AR ON THE DECISION OF HONBLE ITAT, MUMBAI GIVEN IN CASE OF SAIPEM UK LTD. VS. DE PUTY 10 DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) (20 08) REPORTED IN 298 ITR (A.T.) 0113 WHEREIN IT WAS HELD THAT MEANIN GFUL OPPORTUNITY TO BE HEARD SHOULD BE GIVEN TO THE ASSE SSEE. DURING THE COURSE OF ALL THE PROCEEDINGS IN THE CA SE OF THE APPELLANT IT IS SEEN THAT REPEATED OPPORTUNITY WAS GIVEN TO T HE ASSESSEE TO DISCHARGE HIS ONUS AND TO FURNISH AN EXPLANATION TO THE DEPARTMENT REGARDING HIS LIABILITY OR NON-LIABILITY FOR TAXATI ON ON CAPITAL GAINS ON TRANSFER OF THE PROPERTIES AS PER THE SALE DEEDS. H OWEVER, HE REPEATEDLY DID NOT COMPLY WITH THESE NOTICES NOR DI D HE FURNISH ANY INFORMATION OR EVIDENCE TO BRING CLARITY TO THE ISS UE INVOLVED. IN FACT IT WAS THE DEPARTMENT THAT WAS DENIED ON OPPORTUNIT Y FOR DETERMINING THE CORRECT FACTS OF THE CASE DUE TO TH E APPELLANTS EVASIVE TACTICS. TO THIS EXTENT THE FACTS OF THE CA SE ARE DIFFERENT FROM THE FACTS OF THE CASE RELIED ON BY THE AR. MOREOVER, THE DEFECT POINTED OUT REGARDING DENIAL OF SUFFICIENT OPPORTUNITY TO THE ASSESSEE WHILE PASSING AN ORDER U/S 163, IT IS NOTED THAT HIS SUBMISSIONS THEREIN WERE CONSIDERED, AND A FINDING WAS GIVEN ON THE BASIS OF THE FACTS OF THE CASE IN PARA S 3.4 (4) & (5) OF THIS ORDER. TO THAT EXTENT THE DEFECT OF LACK OF OP PORTUNITY IN THE ORDER U/S 163 WAS CURED WHILE PASSING THE APPELLATE ORDER. DURING THE COURSE OF APPELLATE PROCEEDINGS THE AR HAS FURNISHED A COPY OF POWER OF ATTORNEY BY MS. PAMELA JEAN KOLEKO RESIDENT OF 22, MOSELLE CLOSE, FARNBOROUGH, HANTS GU 14 9YB DAT ED 23.03.2005 IN FAVOUR OF SHRI BANWARI LAL SHARMA WIT H RESPECT TO HER PROPERTY AND AFFAIRS PERTAINING TO PROPERTY AT 55, ALEXANDER COMPOUND, AGRA ROAD, JAIPUR, RAJASTHAN, INDIA. GIVE N THE FACT THAT THE AR OF THE APPELLANT HIMSELF HAS FILED THIS EVID ENCE SHOWING THAT THE POWER OF ATTORNEY HAD BEEN SIGNED BY MS. PAMELA JEAN KOLEKO IN FAVOUR OF SHRI BANWARI LAL SHARMA FOR THE LAND U NDER CONSIDERATION AND THIS WAS SUBSEQUENTLY TRANSFERRED BY HIM, AND THE SALE DEEDS WERE SIGNED BY HIM AS LEGAL POWER OF ATT ORNEY HOLDER THERE APPEARS TO BE NO DOUBT THAT HE IS THE REPRESE NTATIVE ASSESSEE UNDER THE PROVISIONS OF SECTION 163(1)(C) OF THE I. T. ACT, 1961 OF MS. PAMELA JEAN KOLEKO IN A.Y. 2008-09 IN RESPECT OF TH E INCOME FROM CAPITAL GAINS FROM TRANSFER OF THE ABOVE MENTIONED TWO PROPERTIES. 2.7 THEREFORE, THE OBJECTION OF THE ASSESSEE REGAR DING THE JURISDICTION IS NOT TENABLE. NOW WE HAVE TO SEE AS TO WHETHER THE ASSES SEE CAN BE HELD AS THE REPRESENTATIVE ASSESSEE IN TERMS OF THE PROVISIONS OF SECTION 163 (1) OF THE ACT. IT IS A FACT ON RECORD THAT 11 THE ASSESSEE HAS INFORMED THE LOCAL ADDRESS OF SMT. PAMELA COLLECO TO THE AO WHO ISSUED SUMMONS ON SUCH ADDRESS BUT NO REPLY WAS RECEIVED A ND THE SAME REMAINED UNSERVED. HOWEVER, BY MERELY PROVIDING THE ADDRESS THE ASSESS EE CANNOT ABSOLVE HIMSELF FROM HIS STATUTORY LIABILITY OF PAYMENT OF TAX ARISING ON TH E INCOME GENERATED FROM THE TRANSACTION OF SALE OF THE IMMOVABLE PROPERTY. ASSESSEE IS A LE GALLY APPOINTED POWER OF ATTORNEY HOLDER IN RESPECT TO THE PROPERTY OWNED BY A NON RE SIDENT AND ON THE BASIS OF SUCH ATTORNEY HE HAS EXECUTED THE SALE AGREEMENTS AND HA S RECEIVED CONSIDERATION AND NO TAX WAS PAID EITHER BY THE NON RESIDENT OR BY THE ASSES SEE HIMSELF. IT IS ALSO A MATTER OF FACT THAT THE REVENUE AUTHORITIES ON THE BASIS OF SUCH P OWER OF ATTORNEY HAS REGISTERED THE SALE DEEDS IN FAVOUR OF THE BUYERS IN THE REVENUE RECORD S. WE HAVE ALSO PERUSED THE POWER OF ATTORNEY PLACED IN ASSESSEES PAPER BOOK AND HAVE F OUND THAT THE ASSESSEE WAS APPOINTED AS POWER OF ATTORNEY HOLDER OF SMT. PAMELA COLLECO IN CLEAR TERMS WITHOUT ANY CONDITIONS. THUS, AFTER GOING THROUGH ALL THE DOCUM ENTS AND CONSIDERING THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE CONSIDERED OPINI ON THAT THE POWER OF ATTORNEY IS VALID AND ON THE BASIS OF SUCH ATTORNEY THE ASSESSEE IS H ELD AS AGENT OF SMT. PAMELA COLLECO. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) IN JUSTIFYING THE ACTION OF LD. AO IN HOLDING THE ASSESSEE AS REPRESENTATIVE ASSESS EE OF SMT. PAMELLA COLLECO. ACCORDINGLY WE HOLD THE ASSESSEE AS THE REPRESENTAT IVE ASSESSEE OF SMT. PAMELA COLLECO AS PROVIDED IN SECTION 163 OF THE ACT. THUS GROUND NO. 1 TO 2.1 OF THE ASSESSEE APPEAL ARE DISMISSED. HENCE, THIS APPEAL IS DISMISSED. ITA NO. 952/JP/12 [VIVEK GUPTA] 3.1 THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD.CIT(A)-1, JAIPUR DATED 05-10-2012 FOR THE A.Y. 2008-09. 12 3.2 THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED IN :- 1) HOLDING THAT SHRI BANWARI LAL SHARMA ONLY AND NO T SHRI VIVEK GUPTA, WAS AN AGENT OF SMT. PAMELA JEANS COLLECO FOR A.Y. 2008-09 IN RESPECT OF HER INCOME FROM CAPITAL GAIN ON SALES OF ONE PROPERTY BY SHRI BANWARI LAL SHARMA AS POWER OF ATTORNEY HOLDER OF SMT. PAMELA JEANS COLLECO, IG NORING THE FACT THAT UNREGISTERED POWER OF ATTORNEY WAS NEITHER SIGNED B Y SHRI BANWARI LAL SHARMA NOR BY THE WITNESS. 2) HOLDING THAT THE ASSESSEE SHRI VIVEK GUPTA WAS N OT A AGENT OF SMT. PAMELA JEANS COLLECO U/S 163(1) FOR A.Y. 2008-09 IN RESPECT OF H ER INCOME FROM CAPITAL GAIN ON SALES OF ONE PROPERTY BY SHRI BANWARI LAL SHARMA , SHRI VIVEK GUPTA IGNORING THE PROVISION OF SECTION 163(D) OF I.T. ACT, 1961 W HEREIN AGENT IS DEFINED AS ANY PERSON IN INDIA WHO HAS ACQUIRED BY MEANS OF TR ANSFER OF A CAPITAL ASSETS IN INDIA. 3) HOLDING THAT THE ASSESSEE SHRI VIVEK GUPTA WAS N OT AN AGENT U/S 163(1) OF SMT. PAMELA JEANS COLLECO FOR A.Y. 2008-09 IN RESPECT OF HER INCOME FROM CAPITAL GAIN ON SALE OF ONE PROPERTY BY SHRI BANWARI LAL SH ARMA TO SHRI VIVEK GUPTA IGNORING THE PROVISION OF SECTION 160 OF I.T. ACT, 1961 WHEREIN REPRESENTATIVE ASSESSEE IN RESPECT TO INCOME OF A NON RESIDENT SPE CIFIED IN SUB-SECTION (1) OF SECTION (9) I.E. TRANSFER OF CAPITAL ASSET SITUATED IN INDIA IS DEFINED AS AN AGENT OF NON RESIDENT. 3.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE RECORDS. THE FACTS OF THE CASE ARE THAT THE ASSESSE E WAS TREATED AS AGENT OF SMT. PAMELA COLLECO U/S 163(1)(C) OF THE ACT AND ASSESSED AS RE PRESENTATIVE ASSESSEE U/S 160(1) OF THE ACT FOR THE REASON THAT THE ASSESSEE HAS PURCHASED AN IMMOVABLE PROPERTY OWNED BY SMT. PAMELA COLLECO IN TERMS OF THE SALE DEED MADE AND E XECUTED BETWEEN THE ASSESS AS BUYER AND SHRI BANWARILAL SHARMA AS THE SELLER (A POWER O F ATTORNEY HOLDER OF THE REAL OWNER OF PROPERTY SMT. PAMELLA COLLECO) WHICH IS AVAILABLE I N THE PAPER BOOK FILED BY THE ASSESSEE. THE SELLER I.E. SMT. PAMELA COLLECO WAS REPRESENTED BY BANWARI LAL SHARMA WHO IS HOLDING POWER OF ATTORNEY EXECUTED IN HIS FAVOUR BY SMT. PAMELA COLLECO IN RESPECT TO THE PROPERTY TRANSFERRED. SINCE THE SELLER I.E. SMT . PAMELA COLLECO OR HER LEGALLY APPOINTED 13 POWER OF ATTORNEY HOLDER BANWARI LAL SHARMA HAD NOT PAID DUE TAXES ON THE INCOME FROM SALE OF THE PROPERTY PURCHASED BY THE APPELLANT, TH EREFORE, THE APPELLANT WAS HELD AS AN AGENT OF SMT. PAMELA COLLECO U/S 163(1) FOR A.Y. 20 08-09 IN RESPECT OF INCOME FROM CAPITAL GAINS ON SALE OF THE PROPERTY PURCHASED BY THE ASSESSEE. 3.4 AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE T HE LD. CIT(A) WHO HAS ALLOWED THE GROUNDS TAKEN BY THE ASSESSEE AND HELD THAT THE ASS ESSEE COULD NOT BE TREATED AS AN AGENT OF SMT. PAMELA COLLECO FOR A.Y. 2008-09 IN RESPECT OF HER INCOME ON ACCOUNT OF CAPITAL GAINS ON THE TRANSFER OF SUCH PROPERTY THROUGH SHRI BANWARI LAL SHARMA U/S 163(1) OF THE ACT WHICH IS PURCHASED BY THE ASSESSEE. 3.5 AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE R EVENUE RAISED THE ABOVE INCORPORATED GROUNDS. 3.6 THE LD. DR WHILE SUPPORTING THE ORDERS OF THE A O ALSO REQUESTED THAT IN THE EVENT THE HONBLE BENCH DESIRES SOME MORE CLARIFICATION M ATTER MAY BE RESTORED TO THE AO. 3.7 PER CONTRA, THE LD. AR ALSO OPPOSED THE REQUEST OF THE DEPARTMENT TO RESTORE THE ISSUE TO THE AUTHORITIES BELOW WITH THE CONTENTION THAT THERE COULD BE NO ESTOPPEL AGAINST THE LAW AND WHEN THE LEGAL POSITION IS CRYSTAL CLEA R THE MATTER CANNOT BE REMITTED FOR RE- EXAMINATION. HE ALSO RELIED UPON THE DECISION OF TH E THIRD MEMBER OF DELHI BENCH OF ITAT IN THE CASE OF ACIT VS. ANIMA INVESTMENT LTD. REPORTED IN 73 ITD 125, WHEREIN IT HAS BEEN HELD THAT NO PARTY COULD BE GIVEN SECOND I NNING AT THE DETRIMENT OF THE OTHER PARTY. 3.8 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE HAVE FOUND THAT THE ASSESSEE HAS BEEN HELD AS AN AGENT OF SMT. PAMELA COLLECO AS THE ASSE SSEE HAS PURCHASED A PROPERTY OWNED BY HER THROUGH BANWARI LAL SHARMA WHO WAS THE POWER OF ATTORNEY HOLDER. WHILE 14 DECIDING THE SIMILAR ISSUE IN APPEAL IN ITA NO. 890 /JP/12 (SURPA) IN RESPECT TO THE POWER OF ATTORNEY HOLDER SHRI BANWARI LAL SHARMA, WE HAVE ALREADY HOLD THE BANWARI LAL SHARMA AS THE AGENT AND REPRESENTATIVE ASSESSEE U/S 163(1)(C) OF THE ACT FOR THE INCOME FROM CAPITAL GAIN ARISING FROM THE TRANSFER OF THE IMMOVABLE PROPERTIES THROUGH TWO SALE DEEDS, ONE OF WHICH RELATED TO THE ASSESSEE. THEREF ORE, BY FOLLOWING OUR ORDERS IN ITA NO. 890/JP/12 IN THE CASE OF BANWARI LAL SHARMA (SU PRA), WE FIND NO REASON TO HOLD THE ASSESSEE SHRI VIVEK GUPTA AS REPRESENTATIVE ASSESSE E FOR SMT. PAMELA COLLECO IN RESPECT TO THE INCOME FROM CAPITAL GAIN ON THE SALE OF IMMO VABLE PROPERTIES THROUGH SHRI BANWARI LAL SHARMA. THE LD. CIT(A) AFTER APPRECIATI NG THESE FACTS HAS HELD THAT ASSESSEE CAN NO CIRCUMSTANCES BE TREATED AS AN AGENT FOR SMT . PAMELLA COLLECO. THUS WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A). ACCORDINGLY THE GROUNDS NO. 1 TO 3 OF THE DEPARTMENT APPEAL ARE DISMISSED. AS A RESULT, THE A PPEAL OF THE REVENUE STANDS DISMISSED. ITA NO. 958/JP/12 [ASHISH GUPTA] 4.1 THIS APPEAL OF THE REVENUE FOR THE ASSESSMENT Y EAR 2008-09 IS DIRECTED AGAINST THE ORDER OF LD.CIT(A)-1, JAIPUR DATED 04-10-2012 WHER EIN THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:-. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED IN :- 1) HOLDING THAT SHRI BANWARI LAL SHARMA ONLY AND NO T SHRI VIVEK GUPTA, WAS AN AGENT OF SMT. PAMELA JEANS COLLECO FOR A.Y. 2008-09 IN RESPECT OF HER INCOME FROM CAPITAL GAIN ON SALES OF ONE PROPERTY BY SHRI BANWA RI LAL SHARMA AS POWER OF ATTORNEY HOLDER OF SMT. PAMELA JEANS COLLECO, IGNORING THE F ACT THAT UNREGISTERED POWER OF ATTORNEY WAS NEITHER SIGNED BY SHRI BANWARI LAL SHA RMA NOR BY THE WITNESS. 2) HOLDING THAT THE ASSESSEE SHRI VIVEK GUPTA WAS N OT A AGENT OF SMT. PAMELA JEANS COLLECO U/S 163(1) FOR A.Y. 2008-09 IN RESPECT OF H ER INCOME FROM CAPITAL GAIN ON SALES OF ONE PROPERTY BY SHRI BANWARI LAL SHARMA, SHRI VI VEK GUPTA IGNORING THE PROVISION OF 15 SECTION 163(D) OF I.T. ACT, 1961 WHEREIN AGENT IS DEFINED AS ANY PERSON IN INDIA WHO HAS ACQUIRED BY MEANS OF TRANSFER OF A CAPITAL ASSE TS IN INDIA. 3) HOLDING THAT THE ASSESSEE SHRI ASHISH GUPTA WAS NOT AN AGENT U/S 163(1) OF SMT. PAMELA JEANS COLLECO FOR A.Y. 2008-09 IN RESPECT OF HER INCOME FROM CAPITAL GAIN ON SALE OF ONE PROPERTY BY SHRI BANWARI LAL SHARMA TO SHRI ASHISH GUPTA IGNORING THE PROVISION OF SECTION 160 OF I.T. ACT, 1961 WHEREIN REPRESENTATIVE ASSESSEE IN RESPECT TO INCOME OF A NON RESIDENT SPECIFIED IN SUB-SECTION ( 1) OF SECTION (9) I.E. TRANSFER OF CAPITAL ASSET SITUATED IN INDIA IS DEFINED AS AN AGENT OF N ON RESIDENT. 4.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE RECORDS. THE FACTS OF THE CASE ARE THAT THE ASSESSE E WAS TREATED AS AN AGENT OF SMT. PAMELA COLLECO U/S 163(1)(C) OF THE ACT AND ASSESSED AS RE PRESENTATIVE ASSESSEE U/S 160(1) OF THE ACT FOR THE REASON THAT THE ASSESSEE HAS PURCHASED AN IMMOVABLE PROPERTY OWNED BY SMT. PAMELA COLLECO IN TERMS OF THE SALE DEED MADE AND E XECUTED BETWEEN THE ASSESS AS BUYER AND SHRI BANWARILAL SHARMA AS THE SELLER (A POWER O F ATTORNEY HOLDER OF THE REAL OWNER OF PROPERTY SMT. PAMELLA COLLECO) WHICH IS AVAILABLE I N THE PAPER BOOK FILED BY THE ASSESSEE. THE SELLER I.E. SMT. PAMELA COLLECO WAS REPRESENTED BY BANWARI LAL SHARMA WHO IS HOLDING POWER OF ATTORNEY EXECUTED IN HIS FAVOUR BY SMT. PAMELA COLLECO IN RESPECT TO THE PROPERTY TRANSFERRED. SINCE THE SELLER I.E. SMT . PAMELA COLLECO OR HER LEGALLY APPOINTED POWER OF ATTORNEY HOLDER BANWARI LAL SHARMA HAD NOT PAID DUE TAXES ON THE INCOME ARISING FROM THE SALE OF PROPERTY PURCHASED BY THE APPELLANT, THEREFORE, THE APPELLANT WAS HELD AS AN AGENT OF SMT. PAMELA COLLECO U/S 163(1) FOR A.Y. 2008-09 IN RESPECT OF INCOME FROM CAPITAL GAINS ON SALE OF THE PROPERTY P URCHASED BY THE ASSESSEE. 4.3 AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE T HE LD. CIT(A) WHO HAS ALLOWED THE GROUNDS TAKEN BY THE ASSESSEE AND HAS HELD THAT TH E ASSESSEE COULD NOT BE TREATED AS AN AGENT OF SMT. PAMELA COLLECO FOR A.Y. 2008-09 IN RE SPECT OF HER INCOME ON ACCOUNT OF 16 CAPITAL GAINS ARISING ON THE TRANSFER OF SUCH PROP ERTY THROUGH SHRI BANWARI LAL SHARMA U/S 163(1) OF THE ACT WHICH IS PURCHASED BY THE ASS ESSEE. 4.4 AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE R EVENUE HAS FILED THIS APPEAL. 4.5 THE LD. DR WHILE SUPPORTING THE ORDERS OF THE A O ALSO REQUESTED THAT IN THE EVENT THE HONBLE BENCH DESIRES SOME MORE CLARIFICATION M ATTER MAY BE RESTORED TO THE AO. 4.6 PER CONTRA, THE LD. AR ALSO OPPOSED THE REQUEST OF THE DEPARTMENT TO RESTORE THE ISSUE TO THE AUTHORITIES BELOW WITH THE CONTENTION THAT THERE COULD BE NO ESTOPPEL AGAINST THE LAW AND WHEN THE LEGAL POSITION IS CRYSTAL CLEA R THE MATTER CANNOT BE REMITTED FOR RE- EXAMINATION. HE ALSO RELIED UPON THE DECISION OF TH E THIRD MEMBER OF HONBLE DELHI BENCH OF ITAT IN THE CASE OF ACIT VS. ANIMA INVESTM ENT LTD. REPORTED IN 73 ITD 125 WHEREIN IT HAS BEEN HELD THAT NO PARTY COULD BE GIV EN SECOND INNING AT THE DETRIMENT OF THE OTHER PARTY. 4.7 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FOUN D THAT THE ASSESSEE WAS HELD AS AN AGENT OF SMT. PAMELA COLLECO AS THE ASSESSEE HAS PU RCHASED A PROPERTY OWNED BY HER THROUGH BANWARI LAL SHARMA WHO WAS THE POWER OF ATT ORNEY HOLDER. WHILE DECIDING THE SIMILAR ISSUE IN APPEAL IN ITA NO. 890/JP/12 (SURPA ) IN RESPECT TO THE POWER OF ATTORNEY HOLDER SHRI BANWARI LAL SHARMA, WE HAVE ALREADY HOL D THE BANWARI LAL SHARMA AS THE AGENT AND REPRESENTATIVE ASSESSEE U/S 163(1)(C) OF THE ACT FOR THE INCOME FROM CAPITAL GAIN ARISING FROM THE TRANSFER OF THE IMMOVABLE PRO PERTIES THROUGH TWO SALE DEEDS, ONE OF WHICH RELATED TO THE ASSESSEE. THEREFORE, BY FOLLOW ING OUR ORDERS IN ITA NO. 890/JP/12 IN THE CASE OF BANWARI LAL SHARMA (SUPRA), WE FIND NO REASON TO HOLD THE ASSESSEE SHRI ASHISH GUPTA AS REPRESENTATIVE ASSESSEE FOR SMT. PA MELA COLLECO IN RESPECT TO THE INCOME FROM CAPITAL GAIN ON THE SALE OF IMMOVABLE PROPERTI ES THROUGH SHRI BANWARI LAL SHARMA. 17 THE LD. CIT(A) AFTER APPRECIATING THESE FACTS HAS H ELD THAT ASSESSEE CAN NO CIRCUMSTANCES BE TREATED AS AN AGENT FOR SMT. PAMELLA COLLECO. TH US WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A). ACCORDINGLY THE GROUNDS NO. 1 TO 3 OF THE DEPARTMENT APPEAL ARE DISMISSED. THEREFORE, THIS APPEAL OF THE REVENUE STANDS DISMIS SED. 5.0 IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO . 890/JP/12 AND THE APPEALS OF REVENUE IN ITA NOS. 952/JP/12 AND 958/JP/12 ARE DIS MISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05-03 -2014 SD/- SD/- ( N.K. SAINI ) (HARI OM MARATHA ) ACCOUNTANT MEMBER JUDICIAL MEMBER *MISHRA COPY FORWARDED TO :- 1. SHRI BANWARI LAL SHARMA, JAIPUR 2. SHRI VIVEK GUPTA, JAIPUR 3. SHRI ASHISH GUPTA, JAIPUR 4. THE ITO, WARD 2(1), JAIPUR 5. THE LD.CIT(A) 6. THE LD CIT 7. THE D/R 8. GUARD FILE (ITA NO.890/JP/2012) BY ORDER, AR ITAT, JAIPUR