Smt Aprna Shinde, Goa V. The DY CIT Central-1 Bhopal, Bhopal

ITSSA 27/Ind/2022

AI Insights

The case involves Smt. Aparna Shinde, who, along with her husband, was subjected to a search under section 132 of the Income-tax Act, 1961. Subsequent assessments for AY 2012-13 to 2018-19 were made under sections 153A/143(3), leading to additions in their income. The appeals primarily contested the additions made on the grounds of joint ownership of properties and the resultant capital gains. The Tribunal found that the AO and CIT(A) had not adequately considered the actual ownership and financial contributions of the parties involved, leading to a remand for further investigation in some years.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130518 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-08-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-05-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 21-11-2022
• Other Referred Cases: Noida Cyber Park (P) Ltd. Vs. ITO, New Delhi
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Retraction
• Section: 54; 132; 50C; 56(2); 153A; 13

Judgement Text

Page 1 of 18 आयकर अपीलȣय अͬधकरण, इंदौर Ûयायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER IT(SS)A Nos. 26 to 28/Ind/2022 Assessment Years : 2012-13 to 2014-15 Smt.Aparna Shinde, B 275, Shree Shantadurga Nagar, Reis Magos, Betim Goa बनाम/ Vs. Dy. CIT, Central (1), Bhopal (Assessee / Appellant) (Revenue / Respondent) PAN: BCEPS6140J Assessee by Ms.Nisha Lahoti, CA Revenue by Shri P.K. Mishra, CIT DR Date of Hearing 30.05.2023 Date of Pronouncement 21.08.2023 आदेश / O R D E R Per B.M. Biyani, A.M.: These three (3) appeals for assessment-year [“AY”] 2012-13, 2013-14 and 2014-15 are filed by same assessee against a consolidated appeal order dated 23.09.2022 passed by learned Commissioner of Income-Tax (Appeals)- 3, Bhopal [“Ld. CIT(A)”], which in turn arises out of a consolidated assessment-order dated 03.12.2019 passed by learned DCIT, Central-I, Bhopal [“Ld. AO”] u/s 153A/143(3) of Income-tax Act, 1961, on the grounds raised in respective Appeal-Memos. Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 2 of 18 2. Heard the learned Representatives of both sides at length and case- records perused. 3. Brief facts leading to present appeals are such that a search u/s 132 was conducted upon assessee (Smt. Aparna Shinde) and her husband (Shri Sanjay Sindhe) on 04.08.2017. Thereafter, assessments for seven years from AY 2012-13 to 2018-19 were framed u/s 153A/143(3) and additions were made. The assessee filed first-appeal to CIT(A) and succeeded partly. Still aggrieved for the additions sustained by CIT(A), the assessee has come in next appeal before us for three years, namely AY 2012-13, 2013-14 and 2014-15. We would take up these appeals one by one. IT(SS)A No. 26/Ind/2022 for AY 2012-13: 4. The sole controversy involved in the grounds raised by assessee is the addition of Rs. 4,55,298/- made by AO on account of 50% share in capital gain on sale of a Flat No. BG-2 situated over Plot No. 2, 3 and 4, Betim, Goa (Ld. AR referred to Page No. 41 of Paper-Book to show that the sold property is Flat No. BG-2 and not Plot No. No. 2,3, and 4 as inadvertently mentioned by AO). 5. The AO has made this addition in Para No. 10 of assessment-order on the basis of Page No. 137 to 156 of LPS-04 seized during search which is in the nature of registered sale-deed of sold property. A copy of the same is also placed at Page No. 36 to 56 of the Paper-Book according to which it was purchased on 09.04.2007 and sold on 31.05.2011. Since the property was Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 3 of 18 registered in joint name of assessee and her husband, the AO sought explanation from assessee as to whether the capital gain arising therefrom had been offered in her income-tax return or not? In replies dated 25.09.2019 and 15.10.2019, the assessee submitted that the property was owned fully by her husband. The assessee also narrated that her husband was also searched and the explanation had been submitted by husband in his own assessment-proceeding to the effect that the capital gain had been fully declared by him in his personal return and he has also claimed exemption u/s 54 on the basis of investment in a new property at Mumbai. However, the AO continued his insistence that the purchase-deed as well as sale-deed of property demonstrated joint ownership of assessee and her husband; that the sale consideration was also received in a joint bank a/c; therefore the assessee had 50% ownership in the sold property. Accordingly, the AO rejected assessee’s submission and assessed 50% of capital gain in assessee’s hands. 6. During first-appeal, the assessee made the same claim before CIT(A) that the impugned property belonged fully to her husband and her name was included for the sake of convenience as it was customary to hold immovable property in joint name with wife for avoiding legal complications in any unlikely event of untimely departure/demise of single owner. The assessee also submitted that the rental income derived from the impugned property in preceding years AY 2008-09 to 2010-11 was also offered fully by her husband in his personal returns. It was further submitted that although Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 4 of 18 the bank account was joint and sale consideration has also been credited in such joint a/c but all credit and debit entries in that a/c belonged only to husband and no part of those entries related to assessee. It was also re- iterated that the capital gain arising from the sold property had already been offered by husband in his return of AY 2012–13 and the husband has also claimed exemption u/s 54 on the basis of new property purchased in Mumbai. The investment in new property was also made from joint a/c by utilizing the consideration of sold property. However, the CIT(A) was not impressed by submission of assessee. The CIT(A) continued to lay emphasis on the point that the purchase-deed and sale-deed of property were in the joint name of assessee and her husband. Although CIT(A) observed that the assessee’s share is not specifically mentioned but he noted that it can be presumed to be 50%. He also observed that the new property at Mumbai had been purchased in the single name of assessee and on that basis he disbelieved the assessee’s very submission that it was customary to hold property in joint names. Ultimately, the CIT(A) upheld the assessment of 50% capital gain in the hands of assessee as done by AO. 7. During hearing before us, Ld. AR for assessee re-iterated the same submissions as made before lower-authorities. It was strongly submitted that the property is solely and exclusively owned by husband of assessee and the assessee’s name was included for mere convenience and safety. Ld. AR submitted that the assessee’s husband had already declared the capital gain as well as rental income throughout all years in his personal returns Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 5 of 18 and paid applicable taxes to department. To demonstrate this, Ld. AR carried us to the copies of income-tax returns of assessee’s husband placed in the Paper-Book. Firstly, Ld. AR carried us to Page No. 5 to 10 of the Paper-Book where the Income-tax Return of AY 2012-13 is placed which clearly shows that the assessee’s husband has declared full sale consideration as well as full capital gain of the sold property. Then, Ld. AR carried us to Page No. 57 to 71 where the income-tax returns of earlier AY 2008-09 to 2010-11 are filed which clearly show that the assessee’s husband has declared rental income from that property and also paid applicable taxes. On perusal of these returns, the Bench made an instant observation and posed a query to Ld. AR that these returns are filed post- search u/s 153A but what was status in the original returns filed before search? In reply, Ld. AR made a clear assertion standing at the Bar that the status was same in the original returns filed prior to search and there is no change. In nutshell, Ld. AR frankly asserted that the assessee’s husband had already declared the rental income as well as impugned capital gain fully in his personal returns filed before search. Having submitted so, Ld. AR contended that inclusion of spouse’s name is very general and customary in practical life and simply on that basis, it is wrong to conclude that the assessee had 50% share in the property. Without prejudice, Ld. AR also contended that even if it is assumed for the sake of discussion, but not accepted, that the assessee had 50% share in the joint property and therefore 50% capital gain is rightly assessed in the hands of assessee then Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 6 of 18 also the department has to allow 50% of exemption u/s 54 to the assessee for the simple reason that the sale consideration of sold property was invested in new residential property at Mumbai. Ld. AR submitted that it is judicially well established that even if the new property is purchased in the name of spouse, the exemption u/s 54 can’t be denied. Therefore, viewed from that angle also, the addition in the hands of assessee could be of Rs. “Nil” only i.e. the amount of taxable gain after exemption u/s 54. With these submissions, Ld. AR prayed to delete the addition of Rs. 4,55,298/- made by AO. 8. Ld. DR for revenue relied upon the orders of lower-authorities and argued that the lower-authorities have rightly assessed 50% capital gain in the hands of assessee when the purchase-deed and sale-deed clearly contained the name of assessee as joint-owner. Ld. DR prayed to uphold the orders of lower authorities. 9. We have considered rival submissions of both sides and perused the case records. It is true that the purchase-deed and sale-deed of property and the bank a/c are in joint name of assessee and her husband and on that basis the lower-authorities have not only treated assessee’s as joint owner but also presumed 50% share in the impugned capital gain. But we should peep into certain material facts more deeply. Firstly, the joint owners are husband and wife and it is very common and natural practice in our society to hold properties in joint names of husband and wife even if one of them is actual owner. The precise reason of this is safety and convenience in Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 7 of 18 unfortunate events. At the same time, it is also not compulsory that every property or asset is kept in joint names only. It may so happen that any property or asset is kept in individual name also. Therefore, it cannot be assumed that just because a property or asset is held in joint names of husband and wife, they both have 50-50% share. In such a case, the correct approach for income-tax purpose is to ascertain who has really invested his or her money and if they have really invested jointly then in what proportion. If the authorities have not taken pain to conduct such an exercise, they cannot presume 50-50% ownership. In that case, one has to make another exercise as to who has declared income from such property or asset consistently over the years and how income-tax authorities have accepted assessee’s declaration. In the present case, it is successfully established by assessee that in earlier years, her husband has declared rental income of sold property and even in current year the capital gain earned from sold property was also declared by her husband. It is further asserted by Ld. AR that such declarations were made in the returns of income filed even before search and also repeated in the returns filed u/s 153A post-search and those declarations have been accepted by department. When it is so, we do not find any justification in AO’s approach to assess 50% of capital gain in the hands of assessee. In fact, the CIT(A) has also admitted that there is no basis even to hold that the assessee had 50% share; it is a mere presumption of department. We also find merit in the alternative contention of assessee that even if it is assumed for the sake Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 8 of 18 of discussion that the assessee had 50% share in the joint property and therefore 50% capital gain is rightly assessed in the hands of assessee then also the department has to allow 50% of exemption u/s 54 to the assessee for the simple reason that the sale consideration of sold property was invested in new residential property at Mumbai. There are judicial rulings holding so. Once that view is taken, the assessee too becomes entitled to exemption u/s 54 qua 50% share in new property and the AO could tax only “Nil” capital gain after deducting exemption. The entire discussion brings us to conclude that the AO is not justified in making addition of Rs. 4,55,298/- in assessee’s income. We are therefore inclined to delete the same. Ordered accordingly. The assessee succeeds in this appeal. IT(SS)A No. 27/Ind/2022 for AY 2013-14: 10. The sole controversy involved in the grounds raised by assessee is the addition of Rs. 3,24,420/- made by AO u/s 56(2)(vii) on account of 50% share in immovable property. 11. The AO has made this addition in Para No. 9 of assessment-order on the basis that the assessee and her husband have jointly purchased a property located at A-210, Shristhi CBD Project, Bhopal for Rs. 37,88,880/- whereas the fair market value (i.e. the value adopted by stamps authority) was Rs. 44,37,720/-. Accordingly, the AO show-caused the assessee to submit justification on difference in two values and also to explain as to why the difference should not be added to total income. The assessee filed reply dated 26.09.2019. On perusal of same, the AO found that the assessee has not substantiated the difference. Thereafter, the AO made a small discussion of on-money payment having been made in cash on the basis of admission by assessee’s husband in statement recorded on 06.08.2017 cumulatively Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 9 of 18 towards the impugned property A-210 & another property A-410. But, however, ultimately the AO made addition u/s 56(2)(vii) on the basis of difference of fair market value and actual consideration by holding thus: “The section 56(2)(ii) of the Income Tax Act states that – 56. (1) Income of every kind which is not to be excluded from the total income under this Act shall be chargeable to income-tax under the head "Income from other sources", if it is not chargeable to income-tax under any of the heads specified in section 14, items A to E. (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), the following incomes, shall be chargeable to income-tax under the head "Income from other sources", namely :— (vii) where an individual or a Hindu undivided family receives, in any previous year, from any person or persons on or after the 1st day of October, 2009 82 [but before the 1st day of April, 2017],— (a) any sum of money, without consideration, the aggregate value of which exceeds fifty thousand rupees, the whole of the aggregate value of such sum; (b) any immovable property,— (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration:........; 12. During first-appeal, Ld. CIT(A) upheld the addition but, however, held that the assessee made initial payment of Rs. 25,00,000/- on 07.05.2013 through cheque and the purchase-deed was registered on 12.08.2016. Therefore, as per provision of section 56(2)(vii), where the date of agreement (i.e. date of initial investment 07.05.2013) and date of registration (i.e. 12.08.2016) are not same, the fair market value of property shall be taken on the date of agreement. On that basis, Ld. CIT(A) held that the AO was not justified to make addition u/s 56(2)(vii) on the basis fair market value as on Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 10 of 18 the date of registration. Therefore, he directed the AO to call for a report of fair market value as on 07.05.2013 and determine correct income chargeable u/s 56(2)(vii). 13. Before us, Ld. AR for assessee firstly drew our attention to a three- pages letter accompanied by a five-pages affidavit filed by assessee’s husband to Principal Commissioner of Income-tax (Central), Bhopal (copy at Page No. 37 to 45 of Paper-Book) wherein assessee’s husband has categorically retracted from his statement recorded on 06.08.2017. Although the letter and affidavit run over 9 pages but the crux of retraction is such that there were glaring discrepancies/mistakes/variations/distortions in the statements recorded and the statements were not written/recorded in the way as he had actually expressed. Finally, in Para No. 9(iii) of affidavit, it is averred that the impugned property A-210 was actually purchased for Rs. 37,88,880/-; the entire payment was made through banking channel only; and no cash payment was made in relation to this property. Ld. AR has loudly read over certain lines/paragraphs of this retraction-affidavit and contended that the assessee’s husband has categorically retracted the admission of on-money payment qua the impugned property A-210 and his retraction must be given due regard. Therefore, Ld. AR argued that in the first place there is no on-money payment qua the property A-210. Secondly, Ld. AR argued that in any case, the impugned addition of Rs. 3,24,420/- has been made by AO u/s 56(2)(vii) on the basis of difference in fair market value (valuation done by stamps authority) and the purchase consideration Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 11 of 18 in terms of section 56(2)(vii) and not on the basis of payment of on-money u/s 69/69A/69B. According to Ld. AR, if the AO had really made addition on the basis of on-money payment, the addition must have been made u/s 69/69A/69B in the first place and to the extent of on-money payment in second place but in the present case, the AO has made addition u/s 56(2)(vii) to the extent of difference of fair market value (stamps valuation) and actual consideration. Therefore, the on-money payment, whether made or not, has no relevance to the addition made by AO which is under a different section and on different quantum. Having said so, Ld. AR also carried us to the registered-deed 12.08.2016 by which the impugned property was acquired (Page No. 45 to 68 of Paper-Book) and demonstrated that it is not a case of purchase of any ‘land or building’; the assessee has merely taken property on lease of just 30 years. Therefore, Ld. AR argued that the case of assessee is straightaway covered by ITAT, Delhi in Noida Cyber Park (P) Ltd. Vs. ITO, New Delhi (2021) 123 taxmann.com 213 where it has been held that section 50C does not apply to a property given on lease. Ld. AR submitted that apparently sub-clause (b) and (c) of section 56(2)(vii) uses the expression “any immovable property” and “any property, other than immovable property” but the Explanation to that section defines the term “property” wherein the term “immovable property” is again prescribed to “land or building or both”. This “land or building or both” is exactly same expression as occurring in section 50C and analyzed by ITAT, Delhi in Noida Cyber (supra). Therefore, in view of the decision of ITAT, Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 12 of 18 Delhi, the provision of section 56(2)(vii) is not applicable to assessee’s case since the assessee has taken property on mere lease and that too of just 30 years. With these submissions, Ld. AR argued that the addition made by AO deserves to be deleted. 14. Per contra, Ld. DR supported the order of AO and argued that the addition was rightly made. He also carried us to Para No. 3.5.3 of the order of CIT(A) as well and tried to explain the finding/direction given by CIT(A) therein but could not come out with a concrete understanding. He also opposed the submission of assessee that section 56(2)(vii) does not apply to the property taken on lease. In the end, he prayed to uphold the addition made by AO. 15. We have considered rival submissions of both sides and perused the orders of lower authorities. On a careful consideration, we find that the AO has made a discussion of on-money payment in cash having been admitted by assessee’s husband in the statement in financial year 2012-13. Accordingly, he made addition in AY 2013-14. But a careful examination of assessment-order clearly reveals that the AO has ultimately made addition u/s 56(2)(vii) equivalent to the difference of fair market value and actual consideration and not u/s 69/69A/69B on the basis of on-money payment. 16. During first-appeal, the CIT(A) has passed following order: “3.5.3 Consider the entire factual matrix of the case and documentary evidences on record, I do not find the claim of the Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 13 of 18 appellant acceptable for the reason that the appeal is joint account holder in the bank account through which payments have been made towards purchase of impugned property. Secondly, the appellant being joint owner, though the ownership of the property is not specifically mentioned in purchase deed and therefore, it has to be presumed that the appellant is 50% owner in the impugned property. Mere showing notional rental income by Shri Sanjay Shinde doesn’t prove that he is the sole title owner of the property. However, the appellant and Shri Sanjay Shinde each should have shown half of the notional rental income in their respective returns of income against the impugned property, though it is a revenue neutral process. However, on perusal of registered sale deed it has been observed that the appellant alongwith her husband Shri Sanjay Shinde made initial investment of Rs. 25,00,000/- on 07.05.2013 through cheque no. 398221 of ICICI Bank i.e. A.Y. 2014-15. Subsequently, the registered deed was entered into on 12.08.2016 i.e. A.Y. 2017-18. The AO has invoked provisions of section 56(2)(vii) of the Act and as per provisions of section 56(2) of the Act, when the date of agreement i.e. date of initial investment i.e. 07.05.2013 and date of registration i.e. 12.08.2016 are not same, the fair market value of the property shall be taken as on 07.05.2013 and not as on the date of registration i.e. 12.08.2016. Therefore, the AO was not justified in making addition u/s 56(2)(vii) on the basis of fair market value as on date of registration. In these circumstances, the ld. AO is Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 14 of 18 hereby directed to call a report from registrar for fair market value of property as on 07.05.2013 and determine correct income chargeable u/s 56(2)(vii) of the Act, while giving effect to this order. ” 17. Thus, the CIT(A) has taken into account two dates, namely 07.05.2013 (date of initial investment) and 12.08.2016 (date of registration) and thereafter directed the AO to ascertain fair market value as on 07.05.2013 in terms of section 56(2)(vii) and determine the correct income chargeable. Thus, while CIT(A) has directed the AO to determine income on the basis of fair market value on 07.05.2013 which falls within previous year 2013-14 relevant to AY 2014-15, he seems to have missed that the AO has made addition in AY 2013-14. Even the order of CIT(A) does not convey whether the taxation should be in AY 2013-14 or AY 2014-15. If it is to be continued in AY 2013-14 as made by AO, how the fair market value as on 07.05.2013 (relevant to AY 2014-15) would be relevant? On other side, if it is to be made in AY 2014-15, then the addition made by AO in AY 2013-14 has no legs to stand. Thus, the order of CIT(A) has a loose end. Further, the Ld. AR of assessee has made a newer pleading before us that the assessee has taken the impugned property on mere lease and therefore section 56(2)(vii) is not applicable. We also find that the AO has made addition of only 50% in assessee’s hands and remaining 50% is certainly made in the hands of assessee’s husband. When questioned about the status of addition in assessee’s husband, Ld. AR does not have a definite answer but submitted to have limited information that the appeal of assessee’s husband Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 15 of 18 is pending at the level of CIT(A). Therefore, looking into all these aspects, we feel it appropriate to remand this matter back to the file of CIT(A) who shall consider the issue afresh and take a clear and unambiguous decision after looking the issue in entirety. While doing so, he may also consider the newer pleading raised by Ld. AR that the impugned property was taken on lease and therefore the provision of section 56(2)(vii) shall not apply. This appeal is thus allowed for statistical purpose. IT(SS)A No. 28/Ind/2022 for AY 2014-15: 18. The sole controversy involved in the grounds raised by assessee is the addition of Rs. 2,49,999/- made by AO on account of 50% share in capital gain on sale of allotment-right in Flat No. F-903, RNA Viva, Mira Road (East), Mumbai. 19. The issue is basically similar to the issue involved in ITA for AY 2012- 13. Here also the AO found that the impugned property was held in joint names of assessee and her husband; the purchase consideration was paid from joint bank a/c; and the sale-deed for transfer was also in joint name. Therefore, the AO has assessed 50% of capital gain in the hands of assessee. Simultaneously, the AO has also stated to reduce the taxable gain in the hands of assessee’s husband. Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 16 of 18 20. Before us, the arguments of learned representatives are also on the same line of reasoning as in appeal for AY 2012-13. The limited change in facts is such that the Ld. AR carried us to Page No. 6 to 9 of the Paper-Book where the Income-tax Return of AY 2014-15 is placed which clearly shows that the assessee’s husband has declared full sale consideration and resultant capital gain of the impugned property. So far declaration of rental income is concerned, Ld. AR carried us to Page No. 12 of Paper-Book where a copy of letter dated 20.11.2019 submitted to AO is placed wherein the assessee clearly mentioned that the impugned property was under construction and the allotment-right itself was sold, therefore there was no question of having and declaring any rental income. Learned Representatives however insisted on their respective contentions and while Ld. AR prayed to delete the addition, Ld. DR requested to uphold the same. 21. We have carefully considered the submissions of both sides and perused the orders of lower-authorities as well as the documents placed in the Paper-Book. On a careful consideration, firstly we observe the following finding noted by AO in Para No. 11.4(i) of assessment-order: “11.4(i) The contention of assessee Smt. Aparna Shinde that the property F-903 does not pertain to her is not correct, as her name is clearly mentioned in Letter of Allotment dated 31/01/2012 as well as in affidavit cum declaration dated 04/07/2013 for transferring the under-construction flat rights to Smt. Sunmeet Kaur. Further, the payment, as claimed by Shri Sanjay Vijay Shinde (husband of assessee) of Rs. 44,35,109/- is made through their joint account only and not from the single account of Shri Sanjay Vijay Shinde.” Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 17 of 18 Similarly, Ld. CIT(A) has also made following finding in his order: “3.6.2 I have considered the facts of the case, plea raised by the appellant and finding of the AO. The appellant before me as well as before AO has contended that the impugned property was owned by her husband Shri Sanjay Shinde and entire advance amount has been paid through his bank account.” 22. Thus, both of the lower-authorities have given a concurrent finding that the assessee has contended that the payment was made by single/his (personal) account of Shri Sanjay Shinde whereas the payment is actually made from Joint A/c of assessee and Shri Sanjay Shinde (husband). In fact, the assessee has also filed copies of bank statements in Paper-Book. On perusal of same, it is clearly visible that the bank accounts are in joint names of assessee and her husband. Therefore, the claim made by assessee that the payment was made from single a/c of husband falls short of truth. Had there been any declaration of rental income and assessment thereof by department, we could have taken a further clue from same but that is also absent in present case as stated in earlier paragraph. Then, the declaration of capital gain by husband in personal return of current year alone cannot be a decisive factor to hold that the property really belonged to husband only. In this peculiar situation, it becomes necessary to critical look into the entries in joint bank a/c of assessee and her husband and ascertain as to whose funds were utilized in purchase of the impugned property. This part is not verified by lower-authorities. Therefore, in the situation, we deem it to refer this matter back to the file of AO who will conduct the necessary Smt.Aparna Shinde, Goa vs. Dy. CIT, Central I, Bhopal IT(SS)A Nos.26 to 28/Ind/2022 A.Ys. 2012-13 to 2014-15 Page 18 of 18 verification and thereafter take a concrete decision as to who is real owner of property. Consequently, we remit this issue back to the file of AO for adjudication afresh. This appeal is thus, allowed, for statistical purpse. 23. In the final result, ITA for AY 2012-13 is allowed. ITA of AY 2013- 14 and 2014-15 are allowed for statistical purpose. Order pronounced in the open court on 21.08.2023. sd/- sd/- (VIJAY PAL RAO) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore Ǒदनांक /Dated : 21.08.2023 CPU/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore