TAPAN KUMAR DAS,KOLKATA vs. ITO, WD-50(1), KOLKATA, KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL “D”, BENCH KOLKATA BEFORE SHRI A.T.VARKEY, JM & DR. A.L.SAINI, AM �ी ए .टी.वक�, �ाियक सद� एवं डा. अजु�न लाल सैनी, लेखा सद� के सम� ITA No.1063/Kol/2015 (िनधा�रण वष� / Assessment Year : 2011-2012) Tapan Kumar Das, Vs. ITO, Ward-50(1), Kolkata Krishnanagar Road, Uttarapan Complex, Noapara, Barasat, Ultadanga, manicktala, Kolkata-700 125 Civic Centre, D.S.-II, Kolkata-700054 �थायी लेखा सं./जीआइआर सं./PAN/GIR No.: AGWPD 0137 D (अपीलाथ� /Assessee) (��थ� / Respondent) .. िनधा�रती की ओर से /Assessee by : Shri Manoj Tiwari, CA राज� की ओर से /Revenue by : Shri N.B.Som, JCIT सुनवाई की तारीख / Date of Hearing : 12/06/2017 घोषणा की तारीख/Date of Pronouncement 31/07/2017 आदेश / O R D E R Per Dr. Arjun Lal Saini, AM: The captioned appeal filed by the assessee, pertaining to assessment year 2011-2012, is directed against the order passed by the ld. Commissioner of Income Tax(Appeals)-15, Kolkata, in Appeal No.37/CIT(A)-15/14-15/Wd-50(1)/Kol, dated 18.05.2015, which in turn arises out of an order passed by the Assessing Officer u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’), dated 24.02.2014. 2. Brief facts of the case qua the assessee are that the assessee is an individual and filed his return of income for A.Y.2011-12 on 26.12.2011, showing total income of Rs.2,59,467/-. The return of income filed by the assessee was duly processed u/s.143(1) of the Act, accepting the return of income. Later on, the assessee’s case was selected for scrutiny u/s.143(2) of the Act and the AO completed the assessment U/s 143(3) by

2 ITA No.1063/15 Tapan Kumar Das making the additions on account of undisclosed cash deposit of Rs.14,00,000/- in his Axis bank account No.021010100590624. During the assessment proceedings, the assessee submitted before the AO that assessee is owner of the said money and has nothing to explain about the nature and source of acquisition of the money, which he deposited in cash in his bank account and not recorded in his books of accounts and also stated that the amount of cash deposit of Rs. 14,00,000/- was earned by the assessee and was not included in the return income due to ignorance of law and the same be offered for taxation. Based on the explanation submitted by the assessee, the AO added Rs. 14,00,000/- to the total income of the assessee. The AO also observed that as perform 26AS the assessee earned interest of Rs.26,40,504/- through the investments of various mutual fund and bank interest which he failed to disclose in his return of income. Therefore, the AO added to the total income of the assessee an amount of Rs.26,40,504/-. 3. Ground Nos.1 and 2 raised by the assessee, before us, reads as under: “1. For that, on the facts and in the circumstances of the case, the additions and disallowances are perverse, rather against evidence and material on record and without an iota of material or evidence to support and sustain the same. 2. For that, on the facts and in the circumstances of the case, the Ld. Commissioner of Income-tax (Appeals)–15/Kolkata though agreed with the contention of assessee that assessee is NON- RESIDENT but at the same time he did not allow benefit of DTAA with the Sultanate of Oman in respect of Interest income amounting to Rs.7,08,371.87 on the basis of surmises, suspicion and conjectures and devoid of any logic whatsoever.”

3 ITA No.1063/15 Tapan Kumar Das 3.1 The ground No. 1 raised by the assessee is general in nature therefore, does not require adjudication, and therefore we confine our attention on ground No. 2 raised by the assessee. The brief Facts qua the issue ( ground No.2), are that the assessee under consideration did not raise the issue, regarding residential status during the assessment proceedings, before the AO. Before the CIT(A), the assessee has raised a new ground/ new issue regarding residential status, where the assessee has claimed that he is non-resident. To prove the status of non-resident, the assessee submitted before the ld CIT(A) that he has filed his return of income under the status of resident and AO made the assessment u/s.143(3) treating the assessee as resident in India. The assessee did not raise any question before the AO during the assessment proceedings about his residential status. The assessee stated that because of negligence of the assessee’s return of income filers, his residential status was misquoted under the impression that only his business income earned in India is taxable in India and other income namely short term capital gain and interest on NRO & NRE account were not taxable in India under the misconception that full taxes have already been deducted on those incomes. The assessee accorded his highest regard to the law of land and once he approached his counsel then his counsel suggested about his residential status that he is non-resident for the relevant assessment year. Since the assessee was non-resident for the relevant assessment year under consideration, therefore, he supposed to file in his

4 ITA No.1063/15 Tapan Kumar Das return in the status of non-resident but he failed to do so because of mistake of his counsel and that is why, as a consequence, his income namely his business income earned in India STCG, interest of NRO & NRE accounts were taxable in India. Therefore, the assessee submitted before the ld. CIT(A) that his residential status is non-resident and business income earned in India will be taxable as per Income Tax Act, 1961 but other income namely STCG and interest of NRO & NRE accounts will be taxable subject to provision of DTAA read with Income Tax Act, 1961. Since the assessee neither disclosed his residential status accurately in the return of income filed by him nor before the Assessing Officer, therefore, the Assessing Officer assessed the Short term capital gain ( STCG) and interest of NRO & NRE account as per the provisions of Indian Income Tax Act and did not allow the benefit of DTAA. 3.2 Aggrieved by the order of the Assessing Officer, the assessee filed an appeal before the CIT(A). The assessee had raised new ground, first time before the CIT(A), stating that he is non-resident. He explained before the CIT(A) that he could not file return of income in the status of non-resident because of the mistake committed by his counsel. The assessee submitted before the CIT(A) that as per DTTA between Republic of India and Sultanate of Oman, any Interest income from Bank for Non- Residents in Account will be taxed at maximum rate of 10% as per Article 12. Hence, Interest amounting to Rs.7,08,371.87 is taxable @ 10% only. 3.3 Having received submissions from the assessee, the CIT(A) sent a remand report to the AO. Then CIT(A) got the remand report from the AO.

5 ITA No.1063/15 Tapan Kumar Das After going through the remand report, the CIT(A) observed that so far residential status is concerned, in the remand report the AO stated as follows :- “At the time of filing of return of income the assessee himself quoted his Residential Status “Resident”. During the course of assessment proceedings the assessee also not raised any objection regarding his actual residential status.” 3.4 The CIT(A) asked the assessee to submit the reply of remand report. The assessee submitted the reply of the remand report stating that the Assessing Officer should have noted that additional documents have been produced for his perusal and comment in the Remand Report but he chose not to consider those documents while writing Remand Report. That is, the Assessing Officer did not consider the documents and information submitted by the assessee, therefore the remand report did not speak the truth. The assessee submitted before the CIT(A) that AO himself assessed the assessee as Non-resident for the Assessment Year: 2012-2013. The assessee has further submitted before the CIT(A) that during the Financial Year 2010-2011 relevant to the Assessment Year 2011- 2012, the assessee stayed in India for a period of 152 days [one hundred and fifty two days]. The assessee submitted the relevant pages of passport including the cover page and total stay in India on several visits were computed as follows:

Computation of his period of stay in India on several visits JOURNEY SCHEDULE Sl. Arrival Date Departure Passport Stay Arrival Departure

6 ITA No.1063/15 Tapan Kumar Das No. Date days Airport Airport 1 7.6.2010 1.10.2010 35 36 117 Kolkata Kolkata 2 15.11.2010 5.12.2010 36 35 21 Mumbai Kolkata 3 22.12.2010 30.12.2010 36 38 9 Mumbai Kolkata 4 27.3.2011 31.03.2011 39 18 5 Kolkata Kolkata (28.04.2011] Total :: 152 The assessee stated that the Assessing Officer did not consider in his remand report, the above chart which explains the total number of days stay in India. As per provisions of the Income-tax Act, 1961, the assessee since has stayed for less than 182 days in India, his Residential Status would be NON-RESIDENT only. Therefore, the assesssee explained that the above facts vividly established that the assessee is Non-resident for the Assessment Year: 2011-2012 but the Assessing Officer concluded to the contrary. 3.5 After going through the written submission and the remand report of the AO and the rejoinder of the remand report, ld. CIT(A) observed that the documents filed by the assessee indicate that the assessee was in India during F. Y. 2010-11 for only 152 days and this entitles him to claims a status of Non-resident. The assessee is declared to be working as a Commercial Manager with M/s Jaweed-Al-Balooshi Trading and Contracting, Sultanate of Oman since 1992. The assessee had claimed that as per the DTAA with the Sultanate of Oman, Article 12, Clause 2, the interest income of the assessee earned in India require to be taxed at the rate of 10% only. However, the CIT(A) did not accept the contention of the assessee and ignored the DTAA with the Sultanate of Oman. The CIT(A) held that Section 5(2) of the Act provides for including in the total income all income from whatever sources derived, which is received or is deemed to be received in India in the previous year by or on behalf of the Non-resident assessee. Further the incomes accruing or arising to the assessee or which are deemed to accrue or arising to the assessee in India

7 ITA No.1063/15 Tapan Kumar Das are also to be included in the total income. Therefore as per Section 5(2) of the Income Tax Act the interest incomes received by the assessee in India are liable to be included in his total income for tax purposes even if his status is that of a Non-Resident. The CIT(A) also explained Article 12 of DTAA with the Sultanate of Oman, which is given below: “1. Interest arising in a Contracting State and paid to a resident of the Other Contracting State may be taxed in that other contracting state. 2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the resident is the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest.” After going through clause 1 and clause 2 of Article 12 of DTAA with the Sultanate of Omen, the CIT(A) held that, here it is necessary to understand that the DTAAs do not concern themselves with the domestic laws of the Contracting States laying down the conditions under which a person is to be treated fiscally as "resident". The Article 4 of the DTAA with Sultanate of Oman uses the term 'resident of a Contracting State' to mean any person who, under the laws of that Contracting State is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature. This definition is only intended to remove practical difficulties and does not determine the legal residency status. The assessee in this present case is liable to tax in India due to the source of income rules. Further clause (2)( c) of Article 4 of the DT AA holds that where an individual is a resident of both Contracting States, then his status shall be determined depending upon the State where his personal and economic relations are closer. In the case of the assessee his personal and economic relations are closer in India. Further clause 2 (c) of Article 4 also states that where the State that where the individual has a habitual abode in both the states, he shall be deemed to be resident of the state of which he is a national. The assessee is an Indian National and he carries

8 ITA No.1063/15 Tapan Kumar Das an Indian Passport. The OECD Commentary on the Articles of the Model Tax convention on which the DT AA with the Sultanate of Oman is also modeled duly explains the thinking processes of behind the Article 4 of the DT AAs as mentioned above. The CIT(A) also explained and noted that provisions of Section 90(3) of the Income Tax Act, which states very clearly in the context of the DTAAs as under:- "(3) Any term used but not defined in this Act or in the agreement referred to in such Section (1) shall, unless the context otherwise requires, and is not inconsistent with the provisions of this Act or the agreement, have the same meaning as assigned to it in the notification issued by the Central Government in the Official Gazette in this belief". The CIT(A) also explained the terminology “"may be taxed" in the context of the Central Government Notification No. 91/2008, dated 28.08.2008. The term "may be taxed" has accordingly been defined by the Notification No. 91/2008 dt. 28.08.2008 as under:- "In exercise of the powers confirmed by sub-section (3) of Section 90 of the Income Tax Act, 1961 (43 of 1961), the Central Government hereby notifies that where an agreement entered into by the Central Government with the Government of any country outside India for granting relief of tax or as the case may be, avoidance of double taxation, provides that any Income of a resident of India "may be taxed" in the other country, such income shall be included in his total income chargeable to tax in India in accordance with the provision of the Income-tax Act, 1961 (43 of 1961), and relief shall be granted in avoidance with the method for elimination or avoidance of double taxation provided in such agreement". The CIT (A), therefore, held that the above notification makes it clear that the tax on interest shall have to be paid in India and the assessee may claim benefit of tax paid in Sultanate of Oman, if any. It is also noted that there is no tax in the Sultanate of Oman on salary & interest income and that the Sultanate of Oman has not provided the assessee with any Tax Residency Certificate since the assessee had no taxable income in that country. In connection with the above term of "may be taxed" it is useful to refer to the ITAT Mumbai's Order in the case of DCIT v Essar Oil Ltd. (2011) 47 SOT 139 (Mum). The ITAT has ruled that the Notification No.

9 ITA No.1063/15 Tapan Kumar Das 91/2008 dated 28.08.2008 is clarificatory and takes effect from A.Y. 2004- 05 itself. Therefore, CIT(A) held that the interest incomes are chargeable to tax in India only as part of the income accruing and arising in India. The assessee is held to be a resident of India only for the purposes of the DT AA and no concessional tax rate is available to him. This way, CIT(A) rejected the claim of the assessee and that is why, the assessee is in appeal before us. 3.6 The ld Counsel of the assessee submitted before us that ld CIT(A) had himself admitted that the status of the assessee as per the Income-tax Act, 1961 is that of Non-Resident ( vide pg 12 of appellate order). Since the assessee is Non-Resident in India and a Resident of sultanate of Oman, benefit provided to him under DTAA will be applicable to him and interest income earned in India will be taxable @10% as provided under DTAA. Though the Commissioner of Income-tax (Appeals) agreed with the contention of the assessee that assessee is non-resident but did not allow him the benefits for which he is eligible under DTAA. This action of the Commissioner of Income-tax (Appeals) is flawed and is void ab initio. The Ld. Counsel cited before us, the relevant portion of DTAA, that is, ‘Article 12:Interest’ which reads as under: "Article 12 : Interest 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other Contracting State. 2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest. 3. Notwithstanding the provisions of paragraph 2,

10 ITA No.1063/15 Tapan Kumar Das (a) interest arising in a Contracting State shall be exempt from tax in that State provided it is derived and beneficially owned by : (i) the government, a political sub-division or a local authority of the other Contracting State; or (ii) the Central Bank of the other Contracting State; (b) interest arising in a Contracting State shall be exempt from tax in that Contracting State to the extent approved by the government of that Contracting State if it is derived and beneficially owned by any person other than a person referred to in sub-paragraph (a) who is resident of the other Contracting State provided that the transaction giving rise to the debt-claim has been approved in this regard by the government of the first-mentioned Contracting State. 4. The term 'interest' as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the propose of this Article. 5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other Contracting State independent personal services from a fixed base situated therein, and the debt claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of article 7 or article 16, as the case may be, shall apply. 6. Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State itself, a political sub-division, a local authority or a resident of that Contracting State. However, where the person paying the interest, whether he is a resident of a Contracting State or not, has in that Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the Contracting State in which the permanent establishment or fixed base is situated. 7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, that amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence

11 ITA No.1063/15 Tapan Kumar Das of such relationship, the provisions of this Article shall apply on to the last mentioned amount. In such case, the excess part .of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement." Based on the Article 12 of DTAA, the ld Counsel stated that the above agreement stipulates very vividly that "However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest" In addition to this, ld Counsel also submitted before us ‘Tax Residency Certificate’ received from Sultanate of Omen, Ministry of Finance, Muscat, which reads as follows: “We hereby certify to the best of our knowledge that Mr. Tapan Kumar Das, holder of Indian passport No.Z2205152 and ID/Resident Card No. 61940917, is a resident of Sultanate of Oman in terms of the Oman/India Agreement for the Avoidance of Double Taxation and the prevention of Fiscal Evasion with respect to taxes on income for the period from 01/04/2010 to 31/03/2011.” The ld Counsel therefore, humbly submitted for taxability of interest @10% as per DTAA signed between the Government of the Sultanate of Oman and the Government of the Republic of India to restore equity and natural justice. 3.7 On the other hand ld DR for the Revenue submitted before us that in the assessee`s case under consideration, the interest income has accrued and arised in India, therefore based on the source rule, the interest income of the assessee is assessable in India as per the Indian Income Tax Act. In addition to this, ld DR has submitted before us that as per Article 1 and Article 3 (j) of DTAA between Republic of India and the

12 ITA No.1063/15 Tapan Kumar Das Government of the Sultanate of Oman, the interest income is taxable in India. The Article 1 and Article 3(j) are reproduced below: “ARTICLE 1 : Personal scope-This Agreement shall apply to persons who are residents of one or both of the Contracting States.” “ARTICLE 3 : General Definitions-1. In this Agreement, unless the context otherwise requires. …………………………. (j) the term “person” includes an individual, a company, a body of persons and any other entity which is treated as a taxable unit under the taxation laws in force in the respective Contracting States.” Based on these Articles, ld DR stated that interest income of the assessee under consideration is taxable in India.

3.8. Having heard the rival submissions, perused the material available on records, we are of the view that the assessee is entitled to take the benefit of ‘Article-12: Interest’ of DTAA between Republic of India and the Government of the Sultanate of Oman. Article-12 clearly says that the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest. The ld Counsel also provided us the tax residency certificate, wherein it is mentioned that assessee, that is, Mr. Tapan Kumar Das is a resident of Sultanate of Oman. The ld. CIT(A) also observed that the documents filed by the assessee indicate that the assessee was in India during F. Y. 2010-11 for only 152 days and this entitles him to claim a status of Non- resident. Therefore, the assessee was non-resident in India during the financial year 2010-11, relevant to assessment year 2011-12, therefore he is entitle for the benefit of DTAA.The contention of ld DR for the Revenue that based on the source rule, the interest income of the assessee is assessable in India as per the Indian Income Tax Act, is not acceptable. Because the assessee is a non resident and is entitled to take the benefit of DTAA. The stand taken by the ld CIT(A) that the assessee in this present case is liable to tax in India due to the

13 ITA No.1063/15 Tapan Kumar Das source of income rules, is not tenable because DTAA overrides the provisions of Indian Income Tax Act. Therefore, we are of the view that assessee is a non-resident and entitle to take the benefit of DTAA between Republic of India and the Government of the Sultanate of Oman and therefore, interest income of Rs. 7,08,371/- is assessable in India @ 10%. This is because, if DTAA is applicable then assessee is entitle for favourable rate of tax. Accordingly, we direct the Assessing Officer to tax the interest income @10% only as per Article 12 of DTAA between Republic of India and the Government of the Sultanate of Oman. 3.9 In the result, the appeal filed by the assessee on ground No. 2, is allowed. 4. Ground No. 3 raised by the assessee, before us, reads as under: “3.For that, on the facts and in the circumstances of the case, the Ld. Commissioner of Income-tax (Appeals)-15/Kolkata, did not consider the evidences produced in respect of Long term and Short term capital Gains and treated them as Unexplained Credits amounting to Rs. 6,27,427.64 taxable at normal rate of 30% instead of 15% u/s 111A on the Short term Capital Gain amounting to Rs.52,033.34 and no tax on Long term Capital Gain amounting to Rs.5,75,394.30 on the basis of surmises, suspicion and conjectures and devoid of any logic whatsoever. 4.1 Brief facts qua the issue are that the Assessing officer on the basis of data available before him from Form No. 26AS as it stood at that point of time made assessment. But as per assessee there has been tremendous revision in Form 26AS due to correction, updation, revision and edition of data by the TDS Returns filing Institutions. Therefore.ld Counsel for the assessee has requested the bench to remand the matter back to the file

14 ITA No.1063/15 Tapan Kumar Das of the Assessing Officer to examine the correct data in form No.26AS and assess the income of the assessee correctly. 4.2 The ld Counsel for the assesee has submitted before us that Form No.26AS, which is on paper book page 16 to 18, where updated TDS figures are available, which has not been considered by the Assessing Officer because the said updated FormNo.26 was not available before the AO at the time of assessment proceedings. The Assessing Officer should examine STCG Rs.52033/- and LTCG Rs.5,75,394/-. The Counsel submitted that Form No.26AS is an evidence and AO should examine it. 4.3 Ld DR for the Revenue stated that if these are equity oriented fund then STT will be chargeable, but in debt oriented fund STT is not chargeable but assessee is entitled to get the benefit of indexation. 4.4 We have heard both the parties and perused the material available on record, we are of the view that this issue requires a fresh examination at the end of the Assessing officer, because at the time of assessment proceedings, the updated form No. 26AS was not available before him. The AO should examine STCG and LTCG as per updated form No.26AS, and assess the income of the assessee as per provisions of the Act. Accordingly, we remand the matter back to the file of the Assessing Officer and allow this ground for statistical purposes. 4.5 In the result, the appeal filed by the assessee on ground No.3, is allowed for statistical purposes. 5. Ground No.4 raised by the assessee, before us, reads as under:

15 ITA No.1063/15 Tapan Kumar Das “ 4.For that, on the facts and in the circumstances of the case, the Ld. Commissioner of Income-tax (Appeals) - 15 /Kolkata did not consider our submission that "since land was purchased jointly, hence Short term Capital gain of Rs.8,21,318/- should be taxed only to the extent 50% in the hands of appellant" and taxed entire amount of Rs.8,21,318/- in the hands of appellant only on the basis of surmises, suspicion and conjectures and devoid of any logic whatsoever”. 5.1 The brief facts qua the issue are that as per assessee a piece of land purchased on 13.06.2008 for Rs.8,00,000/-, jointly with Shri Ashish Kumar Dutta, was sold on 16.07.2010 for Rs.16,21,318/- and out of sale proceeds of land Rs.14,00,000/- was deposited in Axis Bank Ltd. savings account no. 021010100590624 at Nabapally Branch, Barasat. The assessee submitted before the ld CIT(A) the deeds of Purchase and Sale of land. As per assessee the said land is in joint name therefore only 50% capital gain should be assessable in the hands of assessee. Whereas the ld CIT(A) taxed the entire gain in the hands of the assessee and therefore the assessee is in appeal before us. 5.2 The Ld Counsel for the assessee submitted that regarding the cash deposit in Axis bank account the ld. CIT(A) observed that the AO did not consider that the sum of Rs.14 lakhs deposited in the bank account of the assessee on 16.7.2010 was the sale proceeds of the plot of land. The assessee submitted before the ld. CIT(A) that the assessee had earned short term capital gain on sale of plot of the land and the assessee’s share come to Rs.4,10,659/- only which may be taxed. Out of the total sale proceeds of Rs.16.21,318/- after deducting the purchase price of the land of Rs.8 lakhs, the balance amount of Rs.8,21,318/- was treated by

16 ITA No.1063/15 Tapan Kumar Das the ld. CIT(A) as a short term capital gain which is to be taxable at the normal rate. Therefore, the addition of Rs.14 lakh was reduced by the ld. CIT(A) to Rs.8,21,318/- and this sum was to be taxed at short term capital gain as normal rates in the hands of assessee. Therefore, ld. CIT(A) has allowed a partly relief to the assessee so far as the cash deposit of Rs.14 lakhs is concerned. The ld Counsel submitted before us that land was purchased in joint name, therefore the short term capital gain of Rs.8,21,318/- should not be entirely assessable in the hands of the assessee. That is, in the hands of the assessee, only 50% of Rs.8,21,318 should be assessable. The ld Counsel submitted before us the document relating to joint ownership and requested the Bench to remand the matter back to the file of the AO to examine the documents relating to joint ownership of the land. The ld DR for the Revenue did not object the proposal of ld Counsel to remand the matter back to the file of the AO to examine the documents relating to joint ownership. 5.3 Having heard the rival contentions and perused the material available on record, we are of the view, that documents relating to joint ownership of land should be examined by the Assessing Officer. The Counsel submitted before us, that assessee is joint owner of the land and is liable to pay tax on 50% of the capital gain. We direct the assessee to submit the documents relating to joint ownership of land and other information as required by the Assessing Officer, this is to ensure that assessee should participate in the assessment proceedings. Accordingly, we allow this ground for statistical purposes.

17 ITA No.1063/15 Tapan Kumar Das 5.4 In the result, the appeal filed by the assessee on ground No. 4, is allowed for statistical purposes. 6. In the result, the appeal filed by the assessee, is partly allowed. Order pronounced in the open court on this 31/07/2017. Sd/- Sd/- (A.T.VARKEY) (DR. A.L.SAINI) (ए .टी. वक�) (डा. अजु�न लाल सैनी) �ाियक सद� / JUDICIAL MEMBER लेखा सद� / ACCOUNTANT MEMBER कोलकाता /Kolkata; िदनांक Dated 31/07/2017 �काश िम�ा/Prakash Mishra,Sr.PS. आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : 1. अपीलाथ� / The Assessee-Tapan Kumar Das 2. ��थ� / The Respondent.-ITO, Ward-50(1) Kolkata 3. आयकर आयु�(अपील) / The CIT(A), Kolkata. 4. आयकर आयु� / CIT 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, कोलकाता / DR, ITAT, Kolkata 6. गाड� फाईल / Guard file. स�ािपत �ित //True Copy// By Order Senior Private Secretary, Head of Office/D.D.O, I.T.A.T, Kolkata Benches, Kolkata.