SULEENA N. SHINDE,MUMBAI vs. ITO 15(1)(3), MUMBAI

At the outset, the ld.AR submitted before us that the quantum appeal of the assessee has been allowed by the Tribunal in (AY- 2004-05) dated 27.4.2016 against which the penalty of Rs.6,61,825/- was imposed by the AO vide order passed u/s 271(1)( c) dated 31.3.2009 and confirmed by the ld.CIT(A). The ld.AR submitted that since the quantum has 2 6822/Mum/2012 been deleted by the Tribunal, the penalty imposed on the quantum does not survive. Therefore, the ld.AR prayed that the penalty levied by the AO and confirmed by the ld.CIT(A) be deleted.

The ld. DR did not raise any objection to the submission put forth by the ld.AR.

After considering the submissions of the parties and on perusal of the Tribunal order passed in assessee’s own case in (AY- 2004-05) dated 27.4.2016, vide para 5 of the said order the Tribunal deleted the impugned addition of Rs.6,61,825/- on account of capital gain. For the sake of convenience, we reproduce the finding of the Tribunal as under : ”5. We have considered rival contentions and carefully gone through the orders of the authorities below and found from the record that during the year assessee was in receipt of part of the long term capital gain arose out of transfer of property. As the property was jointly owned by the various family members, the assessee has offered Rs.10 lakhs as against actual share as worked out at Rs.38.66 lakhs on the basis of assessee’s entitlement of 28% of the sale proceeds. We found that sale proceeds was received on transfer of long term capital gains by one of the member of the family. Since assessee was in receipt of Rs.10 lakhs, therefore, she has offered Rs.10 lakhs for capital gain. However, it is not clear from the record as to whether the balance of capital gain has been offered by other family members in their hand. It is also not clear as to which member of the family have got higher share in capital gains as a result of share of capital gains by the amount as sacrificed by the assessee in her share. The total amount of capital gain is not in dispute. The dispute pertains to the share received by the assessee. Accordingly, we restore the matter back to the file of AO to find out if the balance of share of the capital gain which was not taken by the assessee and transferred in favour of the other family members, has been correctly offered by that family members in his hands, then the assessee can be made liable for capital gain in respect of 3 6822/Mum/2012

Rs.10 lakhs actually received by his/her. If other family members who are in receipt of shares in capital gain as sacrificed by the assessee had not offered in his shares along with sacrificed portion of assessee, the same can be brought to tax in the hands of the assessee. We direct accordingly.”