SHRI GHELABHAI POPATBHAI SHINGALA,RAJKOT-GUJARAT vs. THE INCOME TAX OFFICER, WD-2(3), RAJKOT-GUJARAT

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ITA 742/RJT/2014Status: DisposedITAT Rajkot31 January 2019AY 2008-094 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal restored the matter to the Assessing Officer for fresh adjudication. This was done in the interest of justice, as the property was claimed to belong to a HUF and the Revenue did not object to remitting the matter.

What were the facts?

The assessee's appeal concerned the confirmation of long-term capital gains by the CIT(A). The assessee contended that the property in dispute belonged to a HUF, not the individual assessee, and thus the capital gains should not be taxed in their hands.

What were the issues?

Whether the long-term capital gains were correctly taxed in the hands of the individual assessee when the property was allegedly owned by a HUF. The applicability of Section 50C was also questioned.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147,Section 50C,Section 144

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT

Before: SHRI MAHAVIR PRASAD & SHRI WASEEM AHMED

For Respondent: Shri Praveen Verma, Sr.DR
Hearing: 31/01/2019Pronounced: 31/01/2019

आदेश / O R D E R

PER MAHAVIR PRASAD, JUDICIAL MEMBER:

The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals)–III, Rajkot [CIT(A) in short] vide appeal no.CIT(A)-III/0036/13-14 dated 23/04/2013 arising in the assessment order passed under s.143(3) r.w.s.147 of the Income Tax Act, 1961(hereinafter referred to as "the Act") dated 26.03.2013 relevant to Assessment Year (AY) 2008-09.

2.

The assessee has raised following grounds of appeal:-

ITA No.742/Rjt/2014 Ghelabhai Popatbhai Shingala vs. ITO Asst.Year – 2008-09 - 2 - 1. The Ld. CIT(A) has erred in law and facts in confirming long terms capital gain at Rs.26,34,331/-. The addition needs deletion.

2.

The Ld. CIT(A) has erred in law and facts in confirming long terms capital gain of Rs.26,34,331/- based on factual position which he described wrongly. The addition needs deletion.

3.

The Ld. CIT(A) has erred in law and facts in confirming long terms capital gain of Rs.26,34,331/- erroneously applying provisions of section 50C which he described wrongly. The addition needs deletion.

4.

The Ld. CIT(A) has erred in law and facts in confirming long term capital gain of Rs.26,34,331/- based on presumption and surmises and against the settled position. The addition needs deletion.

5.

Taking into consideration the legal, statutory, factual and administrative aspects, no determination of long term capital gain of an amount of Rs.26,34,331/- ought to have been confirmed. The additions need deletion.

2.

At the outset, we find that there was no proper representation from the side of the assessee before the authorities below.

3.

We find from the written submissions submitted before us by the assessee that the property in dispute belongs to the HUF, whereas the assessment for the same has been made in the hands of the assessee. As per the Ld.AR, the impugned capital gain income cannot be taxed in the hands of the assessee. Therefore, the same deserves to be deleted.

ITA No.742/Rjt/2014 Ghelabhai Popatbhai Shingala vs. ITO Asst.Year – 2008-09 - 3 - 4. On a specific question to the Ld.DR to remit the matter to the file of Assessing Officer for fresh adjudication in accordance with law, he did not raise any objection. Therefore, in the interest of justice and fair play, we restore the matter to the file of Assessing Officer for fresh adjudication as per the provisions of law.

5.

It is also pertinent to note that the assessee should co-operate with the Assessing Officer during the proceedings. Otherwise, the Assessing Officer shall be at his liberty to pass the order to the best of his knowledge u/s.144 of the Income Tax Act, 1961. Hence, the appeal of the assessee is allowed for statistical purposes.

6.

In the result, appeal of the assessee is allowed for statistical purposes. This Order pronounced in Open Court on 31/01/2019

Sd/- Sd/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANTMEMBER JUDICIAL MEMBER

Ahmedabad; Dated 31/01/2019 ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS

ITA No.742/Rjt/2014 Ghelabhai Popatbhai Shingala vs. ITO Asst.Year – 2008-09 - 4 - आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-III, Rajkot 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण,राजोकट/DR,ITAT, Rajkot 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, राजोकट / ITAT, Rajkot 1. Date of dictation .. 31.1.2019 (dictation-pad 4-pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …31.1.2019 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…………….. 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S…….31.1.2019 7. Date on which the file goes to the Bench Clerk…………………31.1.2019 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………

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