Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “ C ” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED & SHRI MAHAVIR PRASAD
आदेश / O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the assessee against the appellate order of the Commissioner of Income Tax(Appeals)-XIV, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)-XIV/Ward- 7(4)/255/2011-12 dated 17/12/2013 arising in the assessment order passed under s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") dated 27/12/2011 relevant to Assessment Year (AY) 2009-10.
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 2 - 2. The assessee has raised following grounds of appeal :
“1.1 That the Learned Honorable CIT(A) has erred in confirming the addition of Rs.56,65,900/- made by the Assessing Officer as a short term capital gain. 1.2 That the various reasons advanced by ld.CIT(A) in confirming the addition are contrary to the facts of the case and evidence on record. The appellant respectfully submits that in view of various submissions made by the appellant, the addition of Rs.56,65,900 should be deleted. 1.3 The appellant respectfully submits that the property under issue is purchased by Rajesh P Shah Ind. and also sold by Rajesh P Shah Ind. The capital gain if any arising from sale of land belongs to Rajesh P Shah Ind. only. The appellant therefore respectfully submits that the addition of Rs.56,65,900 made on account of short term capital gain on sale of land be deleted”
The only interconnected issue raised by the assessee in its grounds of appeal is that Ld. CIT(A) erred in confirming the order of AO by sustaining the addition of Rs.56,65,900/- as short term capital gain.
Briefly stated facts are that the assessee in the present case is HUF and engaged in the manufacturing business of containers. As per AIR, the assessee has sold its agriculture land located at 59/2, Block No.44 at Jagatpur along with his brother for Rs.1,31,31,800/- only. The assessee being 50% owner of such agriculture land was entitled for half sale consideration of Rs.56,65,900/- only. The assessee purchase such agriculture land along with his brother for Rs.18,00,000/- vide registered deed dt. 10-08-2006. The assessee being 50% owner of such agriculture land paid Rs.9,00,000/- for purchase of such land.
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 3 - 5. However, the AO during the assessment proceedings observed that the assessee has not disclosed any capital gain income in its income tax return earned by it on account of such sale of agriculture land, therefore, the AO called upon the assessee for the explanation. In compliance thereto, the assessee vide letter dated 06-12-2011 stated that the transaction on account of sale of such agriculture land has been duly recorded in the individual account of Shri Rajesh P. Shah being karta of HUF. However, the PAN of the HUF was wrongly mentioned in the sale deed.
The assessee in support of his claim enclosed copy of sale deed as well as copy of bank statement where sale consideration of Rs.56,65,900/- was deposited in the account of Rajesh P. Shah.
The assessee also submitted that the payment for the purchase of such land was also made by the individual account of Shri Rajesh P. Shah. Therefore, there is no question of working the short term capital gain in the hands of the assessee.
However, the AO disregarded the contention of the assessee by observing as under:
i. The PAN of HUF was written in the purchase deed as well as in the sale deed. Therefore, the argument of the assessee that the PAN of HUF has been wrongly mentioned in the deed of sale is not tenable.
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 4 - ii. There was no payment made by the Rajesh P. Shah for the purchase of such land as evident from the Bank Statement. As such the cheques for the purchase of such land were issued by the HUF. iii. There was no capital gain was offered by the Rajesh P. Shah in his income tax return.
iv. The amount received by Shri Rajesh P. Shah for Rs.65,65,900/- was shown as unsecured loan from Shri Kalpesh Atmaram Patel and to that effect confirmation was also filed during the assessment proceedings of Shri Rajesh P. Shah.
In view of above, the AO added the amount of short term capital gain for Rs.56,65,900/- in the hands of the assessee.
Aggrieved, assessee preferred an appeal to Ld. CIT(A). The assessee before the Ld. CIT(A) submitted that indeed the payment was made by Rajesh P. Shah (HUF) for the purchase of land. But it was done so due to the fact that there was not sufficient balance with Rajesh P. Shah in his individual account. However, the book entries were made in the books of Rajesh P. Shah (HUF) as well as Rajesh P. Shah individual account which were shown as loan in the account of Rajesh P. Shah from HUF.
Thus sale proceeds of agriculture land was invested by Rajesh P. Shah along with his brother Shri Jayesh P. Shah in their individual capacity for Rs.1,57,10,000/- and accordingly the deduction was claimed u/s 54B of the Act.
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 5 -
However, the Ld. CIT(A) during the appellate proceedings observed certain facts as detailed under:
i. Shri Rajesh P. Shah and his brother have not disclosed any capital gain income in their individual income tax return.
ii. Payment for the purchase of such agriculture land was made through HUF account. The sale proceeds was deposited by the assessee in the individual accounts of Rajesh P. Shah and his brother. But the deposit of sale proceeds does make Rajesh P shah as owner of the land.
In view of above, the Ld. CIT(A) disregarded the contention of the assessee and confirmed the order of AO by observing as under:
“(B) Ground No.1.2 to 1.8 are interlinked and related to one issue i.e. computation of short term capital gain of Rs.5665900 in the case of appellant. Ground No.1.3 is related to reiterating the submission of appellant before A.O during appeal also hence the same are duly considered as discussed at para 4 and 5.1 above. Therefore, this ground is treated as general. Ground No. 1.4 & 1.5 are related to claim of appellant that information through AIR related to sale of land in fact owned and belonged to Shri Rajesh P Shah (Indl) and it is because of PAN of appellant mistakenly mentioned in sale deed which resulted into such information. In ground No. 1.6 it is claimed that purchase of impugned agricultural land and payment for purchase is made from Shri Rajesh P Shah (Indl) account. I am not inclined with contention of appellant because both purchase and sale deed duly reflects PAN of appellant being co-purchaser. In none of the return of income filed i.e. by appellant as well as by Shri Rajesh P Shah (Indl) this transaction is reflected. In the case of Shri Rajesh P Shah (Indl) though there are transaction related to both STCG as well as LTCG with exempt income but nowhere such transactions are mentioned. The source of purchase of land is also from the bank account of appellant and not from
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 6 - Shri Rajesh P Shah (Indl.) . The ledger account submitted of land purchase in the case of Shri Rajesh P Shah (Indl.) is not supported by any substantive evidences for its genuinity. The details of payment in purchase deed of this purported land at cl.10 clearly mentioned that funds were given by appellant and another co-purchaser HUF. It is therefore there is no mistake as contended by appellant but the same is deliberate not to reflect such transactions. When such transactions came into light, such kind of unsubstantiated contentions were submitted by appellant. I am inclined with A.O. that by depositing sale amount in individual account does not give ownership to individual when both purchase and sale deed clearly reflect the appellant as co-owner. The deposit of sale consideration is in the nature of application of sale consideration and has no further interpretation, least evidence of ownership. It is therefore AO is justified both on merit as well as on legal proposition in computing STCG of Rs.5665900 in the hands of appellant. All these grounds 1.2 to 1.8 are therefore dismissed.” Being aggrieved by the order of Ld. CIT(A) assessee is in second appeal before us. The Ld. AR before us filed two paper books, which are running from pages 1 to 23 and submitted that the capital gain was duly reflected in the individual account of Shri Rajesh P. Shah and his brother. The Ld. AR in support of his claim filed the copy of statement of income of Shri Rajesh P. Shah, which is placed on Page 17 of the paper book.
The Ld. AR further submitted that the payment for the purchase of land was made by the account of HUF as there was no fund available with the assessee. However, the effect of the payment made by HUF on behalf of Shri Rajesh P. Shah was given in its ledger accounts. The Ld. AR in support of his claim filed the ledger copy of Shri Rajesh P. Shah in the books of Shri Rajesh P. Shah (HUF) as well as the ledger copy of Shri Rajesh P. Shah (HUF) in the books of Shri Rajesh P. Shah, which are placed on Pages 8 and 9 of the Paper Book.
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 7 -
On the other hand, the Ld. DR submitted that the PAN of HUF was made in purchase as well as sale deeds. The Ld. DR also submitted that the ownership of the impugned land cannot be transferred to Shri Rajesh P. Shah merely on the ground that sale proceeds was received by him in his individual capacity. The Ld. DR vehemently supported the order of authorities below.
We have heard the rival contentions of both the parties and perused the material available on record. The issue in the instant case relates whether the capital gain arose on account of sale of agriculture land is taxable in the hands of the assessee or Shri Rajesh P. Shah in his individual capacity. The undisputed fact is that there was transaction for purchase and sale of agriculture land which resulted capital gain income of Rs.56,65,900/- only.
On perusal of income tax return of Shri Rajesh P. Shah, it was observed that the amount of capital gain income was duly reflected as evident from the statement of income, which is placed on Page 17 of the Paper Book. The relevant statement of the income is reproduced below: “LAND – JAGATPUR 56,12,400 Less :- Amount Exempt under Sections 54B Transfer of Land used for Agricultural purpose Actual Investment 55,21,092 Net Capital Gain 56,12,400 Least of the above Two 55,21,092 Total Exemptions to the extent available Rs.55,21,092/- 55,21,092 91,308”
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 8 - Therefore, we are of the view that the allegation of the lower authorities that Shri Rajesh P. Shah has not disclosed its capital gain income in his return of income, does not hold good.
Similarly, we also note that Shri Rajesh P. Shah has shown loan of Rs.9,00,000/- in its books of accounts on account of money invested by HUF for the purchase of such land. The relevant extract of the ledger of HUF in the books of Shri Rajesh P. Shah is placed on Page 9 of the paper book, which is extracted as under: Rajesh P. Shah HUF Ledger Account 19, Devarshi Bunglow, Nr. Tulip Bunglow, Thaltej, Ahmedabad 1-Apr-2006 to 31-Mar-2007 Page 1 Date Particulars Vch Vch Debit Credit Type No./Excise Inv. No 01.04.2006 Dr Opening 8,05,551.77 Balance 03.08.2006 Cr Punamchand Journal 40 1,64,500.00 Manilal Patel 10.08.2006 Dr Land at Journal 41 9,00,000.00 Jagatpur 59/2/44 31.012007 Dr Phoenix Journal 53 1,53,791.80 Lamps India Ltd. 1,64,500.00 18,59,343.57 Dr Closing 16,94,843.57 Balance 18,59,343.57 18,59,343.57
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 9 -
From the foregoing discussion, we note that the addition was made by the AO in the hands of the assessee on account of short term capital gain of Rs.56,65,900/- on the ground that Shri Rajesh P. Shah has not disclosed the same in his individual return. However, on perusal of the income tax return of Shri Rajesh P. Shah, it was observed that the amount of capital gain income has been duly reflected in his return of income. It was also observed that the assessee has invested his sale proceeds in another agriculture land and accordingly the deduction u/s 54B of the Act was also claimed. The Ld. CIT(A) in his order has duly observed that Shri Rajesh P. Shah along with his brother has made investment in another agriculture land for Rs.1,57,10,000/-. The relevant extract of the Ld. CIT(A) is reproduced as below: “(f) A purchase deed dated 30.01.2013 for an agricultural land (old tenure) at Block No.10, survey No.64, village Chandkheda, Dist. Ahmedabad registered at sub-registrar Ahmedabad – 13 (city) with No. AHD-13- CYT/197/2013 for a consideration of Rs.1,57,10,000/- by Shri Jayeshbhai Pravinchandra Shah (PAN: AFXPS 5364 C i.e. Indl.) and Shri Rajesh Pravinchandra Shah (PAN ACIPS 7717 C i.e. Indl.) from Shri Ambalal Gugabhai Patel.” In view of above we hold that the finding of the lower authorities that Shri Rajesh P. Shah has not disclosed short term capital gain income in his income tax return is based on wrong assumption of facts. Once, the short term capital gain has been disclosed by Shri Rajesh P. Shah being Karta of HUF in his individual capacity there is no loss to the Revenue. We also note that the Ld. DR has not controverted the arguments advanced by the Ld. AR during the proceedings. Therefore, we have no alternate except to reverse the order of
ITA No.1431/Ahd/2014 Shri Rajesh P. Shah (HUF) Vs. ITO. Asst.Year –2009-10 - 10 - lower authorities. Accordingly, we direct the AO to delete the addition made by him. Hence, the grounds of appeal filed by the assessee are allowed.
In the result, assessee’s appeal stands allowed. 14. This Order pronounced in Open Court on 24/05/2018
Sd/- Sd/- ¼egkohj izlkn½ ¼egkohj izlkn½ ¼olhe vgen olhe vgen½ ½ ¼egkohj izlkn½ ¼egkohj izlkn½ ½ ½ olhe vgen olhe vgen U;kf;d lnL; Yks[kk lnL; U;kf;d lnL; Yks[kk lnL; U;kf;d lnL; Yks[kk lnL; U;kf;d lnL; Yks[kk lnL; (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 24/05/2018 Priti Yadav, Sr.PS 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)-XIV, Ahmedabad. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 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, अहमदाबाद / ITAT, Ahmedabad