SHANTANU ASHOK SATBHAI,KOPERGAON, AHMEDNAGAR vs. INCOME-TAX OFFICER, WARD-2, AHMEDNAGAR

I have heard both the sides and gone through the relevant material on record. It is an admitted position that the assessee signed the sale deed as a consenting party in respect of property which was sold by his mother, Mrs. Anuradha Ashok Satbhai. In lieu of the signing, the assessee was paid a sum of Rs.10 lakhs. He suo motu offered Rs.5.39 lakhs as capital gain after claiming indexed cost of acquisition at Rs.4.61 lakhs. The ld. CIT(A) has admitted in the impugned order that in the case of Mrs. Anuradha Ashok Satbhai, he has held that she was the sole owner of the land and “whatever capital gain arises in the sale of transaction of the said land is to be taxed in entirety in the hands of appellant only”. Thus, it is overt that the assessee‟s mother was subjected to tax as a sole owner of the property and the assessee, even though received Rs.10 lakh as a consenting party, cannot be charged to tax in respect of this transaction either as „Long term capital gain‟ offered wrongly by it or as „Income from other sources‟ assessed by the AO. Taxing the assessee in respect of a part of the transaction would lead to double taxation. The ld. AR submitted that the order passed by the ld. CIT(A) in the hands of Mrs. Anuradha Ashok Satbhai has attained finality. Once full sale consideration has been taxed in the hands of assessee‟s mother, then taxing a part of the same in the hands of the assessee would amount to double taxation, which cannot be permitted.

Here is a case in which the assessee inadvertently suo motu offered Rs.5.39 lakhs as long term capital gain and the AO made further addition of Rs.4.61 lakhs. In view of the fact that the assessee was not at all chargeable to tax in respect of receipt of Rs.10 lakhs for acting as a consenting party and the entire sale consideration has already been taxed in the hands of Mrs. Anuradha Ashok Satbhai, his mother, as a sole owner, I hold that the amount of long term capital gain of Rs.5.39 lakhs wrongly offered by the assessee is also not chargeable to tax in the same manner in which the addition of Rs.4.61 lakhs was wrongly made by the AO. It is trite that no income can be taxed merely because the assessee wrongly offered it in his return. I am reminded of the mandate of Art. 265 of the Constitution of India, which states that : `No tax shall be levied or collected except by authority of law‟. It is, therefore, held that full amount of Rs.10 lakhs should be deleted from the assessee‟s computation of total income.

In the result, the appeal is allowed.

Sd/- (R.S.SYAL) VICE PRESIDENT पुणे Pune; ददिधांक Dated : 7th March, 2022 GCVSR आदेश की प्रतिलिपि अग्रेपिि/Copy of the Order is forwarded to: अपीऱधर्थी / The Appellant; 1. प्रत्यर्थी / The Respondent; 2. 3. The CIT(A)-2, Pune 4. The Pr. CIT-1, Pune 5. विभागीय प्रविविवि, आयकर अपीलीय अविकरण, पुणे / DR „SMC‟, ITAT, Pune गार्ड फाईल / Guard file 6. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अविकरण ,पुणे / ITAT, Pune