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Income Tax Appellate Tribunal, JAIPUR BENCHES (SMC
Before: SHRI BHAGCHAND
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh Hkkxpan] ys[kk lnL;] ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER
vk;dj vihy la-@ITA No. 46/JP/2016 fu/kZkj.k o"kZ@Assessment Year: 2011-12 cuke Shakuntala Sogani, Income Tax Officer, Vs. 2, Vinay Shakun Gokhle Marg, Ward 2(1), State Bank colony, Ajmer. Ajmer. PAN/TAN No.: AESPS 7285 P vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 44/JP/2016 fu/kZkj.k o"kZ@Assessment Year: 2011-12 cuke Deepak Sogani, Income Tax Officer, Vs. 2, Vinay Shakun Gokhle Marg, Ward 2(1), State Bank colony, Ajmer. Ajmer. PAN/TAN No.: ADLPS 0646 N vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 45/JP/2016 fu/kZkj.k o"kZ@Assessment Year: 2011-12 cuke Sanjeev Sogani, Income Tax Officer, Vs. 2, Vinay Shakun Gokhle Marg, Ward 2(1), State Bank colony, Ajmer. Ajmer. PAN/TAN No.: AEGPS 9386 H vihykFkhZ@Appellant izR;FkhZ@Respondent
ITA 46, 44 & 45/JP/2016 2 Shakuntala Sogani with two other assessees Vs. ITO fu/kZkfjrh dh vksj ls@ Assessee by : Shri Sudhir Sogani (Adv) jktLo dh vksj ls@ Revenue by : Smt. Poonam Roy (DCIT) lquokbZ dh rkjh[k@ Date of Hearing : 20/02/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 09/03/2017 vkns'k@ ORDER
PER: BHAGCHAND, A.M.
These are the appeals filed by three different assessees against the
three separate orders all dated 29/10/2015 passed by the ld. CIT(A), Ajmer
pertaining to the assessment year 2011-12.
In all the appeals, there is one common ground involved, therefore,
the same are heard together and for the sake of convenience and brevity, a
common order is being passed.
In these appeals, the assessees have raised following grounds:-
Grounds of ITA No. 46/JP/2016 “1. That the ld. CIT(A) is not justified in holding that the properties sold by the assessee were jointly owned by the assessee and her sons, Deepak Sogani and Sanjeev Sogani. 2. That the ld. CIT(A) is not justified in holding that the assessee is co-owner with her sons, Deepak and Sanjeev of the properties sold. 3. The assessee craves to add, amend, alert, insert any ground before disposal of appeal.”
Grounds of ITA No. 44/JP/2016
ITA 46, 44 & 45/JP/2016 3 Shakuntala Sogani with two other assessees Vs. ITO
“1. That the ld. CIT(A) is not justified in holding that the assessee is co-owner with his mother Smt. Shakuntala Sogani of the property sold.
That the ld. CIT(A) is not justified in sustaining addition of Rs. 2,00,000/- U/s 68 of the IT Act, 1961 opining that the gift received by the assessee from his mother Smt. Shakuntala Sogani is not genuine.
The assessee craves to add, amend, alert, insert any ground before disposal of appeal.”
Grounds of ITA No. 45/JP/2016 “1. That the ld. CIT(A) is not justified in holding that the assessee is co-owner with his mother Smt. Shakuntala Sogani of the property sold.
That the ld. CIT(A) is not justified in sustaining addition of Rs. 39,000/- to the income of the assessee holding that the assessee has not been able to establish that the professional fees of Rs. 39,300/- received from Hindustan Unilever Ltd. is included in total receipts declared by the assessee.
The assessee craves to add, amend, alert, insert any ground before disposal of appeal.”
Ground No. 3 of all the appeals is general in nature and not required
any adjudication, therefore, the same are hereby dismissed.
Grounds No. 1 and 2 in ITA No. 46/JP/2016 and ground No. 1 in ITA
No. 44 and 45/JP/2016 are with regard to a common issue. The brief facts
of the case are that assessee Smt. Shankuntala Sogani is the mother of
ITA 46, 44 & 45/JP/2016 4 Shakuntala Sogani with two other assessees Vs. ITO
Shri Deepak Sogani and Shri Sanjeev Sogani, who are the other two
appellants. Smt. Shankuntala Sogani has claimed that two of her properties
situated at village Ghooghra were purchased by herself from her own funds
but the name of her sons Shri Deepak Sogani and Shri Sanjeev Sogani
were added in the purchase deed for the reason of future eventualities and
legal hassles thereafter. It was also claimed that she has duly reflected the
property in her name and however, when the properties were sold to Smt.
Subhita Agarwal, separate cheques were issued to sons and sale proceeds
were deposited in their accounts. She claimed that this was done to avoid
any future legal hassles. The Assessing Officer held that since the
purchases were also made in the name of Shri Deepak Sogani and Shri
Sanjeev Sogani and the sales were also made by these two persons and
the sale proceeds were also received in their hands, therefore, capital gain
arises on the transfer of these properties have to be taxed separately in
their hands.
The ld. CIT(A) has confirmed the action of the Assessing Officer by
holding as under:-
“4.3 I have gone through the assessment order, statement of facts, grounds of appeal and written submissions carefully. The AO has treated 50% of the sales consideration as the
ITA 46, 44 & 45/JP/2016 5 Shakuntala Sogani with two other assessees Vs. ITO
consideration received by the appellant because as per the sale deed, properties were owned jointly by the appellant with Shri Deepak Sogani and Shri Sanjeev Sogani. The claim of the appellant that the properties sold were acquired only with the funds provided by the appellant, therefore, entire sales consideration of these properties should be held to have been received by the appellant is not substantiated with any documentary evidence. Therefore, the contention of the appellant cannot be accepted. Hence, these grounds of appeal are hereby dismissed.’
Now the assessees are in appeals before me. The ld AR of the
assessees have relied on the submissions as made before the authorities
below and also pleaded that the total capital gain should have been taxed
in the case of Smt. Shankuntala Sogani instead of other co-owners.
On the other hand, the ld. DR has relied on the orders of the
authorities below.
I have heard the rival contentions of both the parties and perused
the material available on the record. The purchase was made in the joint
name of assessee and her both sons. The sale was also affected by all the
co-owners. The sale consideration was also received in their respective
bank accounts. All these facts suggest that this was the property held
ITA 46, 44 & 45/JP/2016 6 Shakuntala Sogani with two other assessees Vs. ITO
jointly, therefore, the capital gain arises on the transfer of these properties
have to be taxed in the co-owners and in view these facts and
circumstances, I do not find any infirmity in the order of the ld. CIT(A).
Accordingly, grounds No. 1 and 2 of ITA No. 46/JP/2016 and ground No. 1
of ITA 44 & 45/JP/2016 are dismissed.
Ground No. 2 of ITA No. 45/JP/2016 is with regard to making and
sustaining the addition of Rs. 39,300/-. The ld. CIT(A) has sustained the
addition by holding that the professional fee of Rs. 39,300/- received from
Hindustan Unilever Ltd. is not included in the receipts declared by the
assessee. The assessee claims that the professional fee received from
Hindustan Unilever Ltd. is a part and parcel of the total receipts declared on
the assessee at Rs. 1,18,000/-. This misunderstanding happened for the
reason that the assessee has not claimed TDS on these receipts of Rs.
39,300/- and therefore, it was treated as no included in the total receipts.
The ld. AR submitted that this was based only on the presumptions.
The ld DR has supported the orders of the authorities below.
I have heard the rival contentions of both the parties and perused
the material available on the record on this issue. I find that the ld. CIT(A)
has not given any clear cut finding whether the receipt was not part of the
ITA 46, 44 & 45/JP/2016 7 Shakuntala Sogani with two other assessees Vs. ITO
total receipt of Rs. 1,18,000/- declared by the assessee, therefore, in the
interest of justice and equity, the issue is restored back to the file of the
Assessing Officer for verification. If the assessee’s claim found in order,
then relief may be granted to the assessee.
Ground No. 2 of ITA No. 44/JP/2016 is against sustaining the
addition of Rs. 2.00 lacs U/s 68 of the Income Tax Act, 1961 (in short the
Act). The assessee had shown gift from her mother Smt. Shakuntala
Sogani. The Assessing Officer added the amount holding that the assessee
has not proved the genuineness of the gift transaction.
The ld. CIT(A) has confirmed the addition for the reason that the
assessee has failed to explain the source of cash of Rs. 2.00 lacs from Smt.
Shakuntala Sogani. Therefore, the addition was confirmed.
I have heard both the sides on this issue. The assessee has shown
gift from his mother Smt. Shankuntala Sogani. The gift was in cash. There
was a close relation between the donor and done. The donor Smt.
Shakuntala Sogani has affirmed the gift that she has given a gift of Rs. 2.00
lacs to her son Shri Deepak Sogani. The donee has also affirmed the fact.
The capital account and balance sheet of donor was also submitted, which
also reflects the gift of Rs. 2.00 lacs to her son, therefore, in such a
ITA 46, 44 & 45/JP/2016 8 Shakuntala Sogani with two other assessees Vs. ITO circumstances, the addition in the hands of the assessee was not justified.
If there was any doubt regarding the source in the hands of Smt.
Shankuntala Sogani, then the Assessing Officer could have proceeded in
her hands. The donor Smt. Shakuntala Sogani was also assessed with the
same Assessing Officer and also taxed in the same circle. It may be also
noted that the assessment order for the assessment year 2011-12 has been
made by the same Assessing Officer on 22/1/2015. Therefore, the addition
made by the Assessing Officer and confirmed by the ld. CIT(A) is hereby
deleted. Accordingly, ground No. 2 of ITA No. 44/JP/2016 is allowed.
In the result, ITA No. 46/JP/2016 is dismissed, ITA No. 45/JP/2016 is
partly allowed for statistical purposes only and ITA No. 44/JP/2016 is partly
allowed.
Order pronounced in the open court on 09/03/2017.
Sd/- ¼Hkkxpan½ (BHAGCHAND) ys[kk lnL;@ ys[kk lnL;@ ys[kk lnL;@Accountant Member ys[kk lnL;@ Tk;iqj@Jaipur fnukad@Dated:- 09th March, 2017 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellants- (i) Smt. Shakuntala Sogani, Ajmer. 1. (ii) Shri Deepak Sogani, Ajmer.
ITA 46, 44 & 45/JP/2016 9 Shakuntala Sogani with two other assessees Vs. ITO (iii) Shri Sanjeev Sogani, Ajmer. izR;FkhZ@ The Respondent- The ITO, Ward 2(1), Ajmer. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 44 to 46/JP/2016) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत