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Facts
The assessee did not file her return of income for AY 2013-14. The AO, finding that the assessee had sold an immovable property for Rs. 1.02 crore and had not disclosed this income, initiated reassessment proceedings. The assessee's appeal was dismissed for non-prosecution by the CIT(A).
Held
The Tribunal held that the addition of capital gain in the hands of the assessee amounted to double taxation, as the same transaction was already assessed in the hands of the assessee's husband. The Tribunal found the addition unsustainable and ordered its deletion.
Key Issues
Whether the addition of capital gain in the assessee's hands is justified when the same transaction was already taxed in the hands of her husband, leading to double taxation?
Sections Cited
147, 144, 250, 148, 142(1), 250(6), 143(3), 54
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCHES “B”, PUNE
Before: DR.MANISH BORAD & SHRI VINAY BHAMORE
आदेश / ORDER
PER DR. MANISH BORAD, ACCOUNTANT MEMBER :
This appeal filed by the assessee pertaining to the Assessment Year 2013-14 is directed against the order dated 24.01.2024 passed by the National Faceless Appeal Centre, Delhi passed u/s.250 of the Income-tax act, 1961 (in short ‘the Act’) which inturn is arising out of the Assessment order dated 29.09.2021 passed u/s.147 r.w.s.144 of the Act.
Rimple Saxena 2. At the outset, we find the appeal is time barred by limitation by 242 days before the Tribunal. An affidavit in this regard has been submitted by assesse’s husband as General Power of Attorney Holder. It was stated that the assessee is presently residing in USA and the email id on which the notices were sent could not be seen as the email id remained inactive. There was also medical emergency in the family. It was further stated that only on 08.11.2024 he came to know of passing the appeal order in the case of assessee when the demand is raised through show cause notice. These are the reasons which led to delay in presenting the appeal before the Tribunal. Therefore, the delay in filing the appeal be condoned.
On going through the averments made in the affidavit and in the absence of anything contrary, we are satisfied that there was ‘reasonable cause’ on the part of the assessee which prevented her in filing the appeal within the stipulated time. Therefore, we condone the delay of 242 days in filing the appeal in the larger interest of justice and proceed for adjudication of appeal on merits.
Facts of the case in brief are that the assessee is an individual and has not filed the return of income for the A.Y. 2013-14. Based on the information available with the officer, the Assessing Officer (AO) found that the assessee has sold an Rimple Saxena immovable property for sale consideration of Rs.1.02 crore. Since the assessee has not filed the return of income and has not disclosed the income relating to the above transaction, ld AO opined that income escaped assessment to tax, therefore, notice u/s.148 of the Act was issued to the assessee calling upon the assessee to furnish the necessary details. Statutory otices u/s.142(1) of the Act were also issued to the assessee. The assessee neither complied with notice issue u/s.148 of the Act nor with the notices issued u/s.142(1) of the Act. Therefore, ld. AO passed best judgment assessment u/s.144 of the Act making adding of the said sum of Rs.1.02 crore as income of the assessee under the head ‘Short Term Capital Gain’.
Aggrieved assessee preferred appeal before the ld.CIT(A) which came to be dismissed for non-prosecution. Now the assessee is in appeal before the Tribunal.
At the outset, Ld. Counsel for the assessee submitted that is assessee is presently staying in United States of America. He further referring to the statement of facts filed before the ld.CIT(A) submitted that the property which was sold during the year was of her husband and only the name of the assessee was there in the purchase deed as a second name holder. The said property has been sold for a sale consideration of Rs.1.02 crore Rimple Saxena which has been declared by her husband in his return of income and the same has already been assessed to tax vide assessment order dated 30.03.2016 framed for A.Y. 2013-14. In case of assessee’s husband, i.e., Mr.Sourabh Satish Saxena due taxes have been paid on the said transaction. Since the alleged transaction has already been taken into consideration by the owner of the immovable property in his return of income which has been assessed by the department, the impugned addition tantamount to double and the same deserves to be deleted.
On the other hand, ld. Departmental Representative supported the orders of the lower authorities.
We have heard the rival parties and perused the record placed before us. The solitary issue that arises for our consideration is whether the authorities below were justified in making addition of Rs.1.02 crore as short term capital gain in the facts of the present case. On perusal of the impugned order, we find that the ld.CIT(A) has not decided the case on merits but merely dismissed the appeal for non-prosecution. The ld.CIT(A) ought to have disposed of the appeal on merits as contemplated u/s.250(6) of the Act by passing a reasoned order and given the reasons thereof for arriving at such decision. However, the fact remains that the assessee in the statement of facts and grounds of appeal before the ld.CIT(A) has clearly made submissions stating that it is her husband who sold the property in question and received the entire sale consideration of Rs.1.02 crore under Agreement for sale dated 09.07.2012 and disclosed the capital gain in his hands. Making the same addition in the hands of assessee amounts to double addition. Before us, ld. Counsel for the assessee referring to the assessment order dated 30.03.2016 in the case of husband of assessee Mr. Sourabh Satish Saxena, has successfully demonstrated that the assessee’s spouse has reflected the said transaction in the income-tax return filed by him by paying the due taxes and the department took cognizance of the same by assessing it in the hands of assessee’s husband. We note that the Assessing Officer in para 3.4 of the assessment order dated 30.03.2016 passed u/s.143(3) of the Act, in the case of assesse’s husband, has computed the capital gain in respect of the same transaction as under :
“3.4 In view of the above facts and circumstances, assuming that the possession of the property might have been delivered after last payment for purchase of property, the indexed cost of acquisition is taken from the F.Y.2003-04 and Long Term Capital Gain in re- computed accordingly.
Sale Consideration 1,02,00,000/- Indexed cost of acquisition = 13,38,040 x 852 24,62,224/- 463 Gross Long Term Capital Gain 77,37,776/- Less : Exemption u/s.54 74,24,220/- Net : LTCG 3,13,556/- In that view of the matter, the authorities below were not justified in again making the addition of capital gain in the hands of assessee. The addition made is unsustainable and uncalled for. We therefore order to delete the impugned addition and allow the effective grounds of appeal raised by the assessee.
In the result, the appeal of the assessee is allowed. Order pronounced on this 21st day of January, 2025.