HEMA KANWAR NARENDRA SINGH RATHOD,JAIPUR vs. DCIT, CENTRAL CIRCLE-2, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA Nos. 159 & 158/JP/2022 fu/kZkj.k o"kZ@Assessment Years : 2015-16 & 14-15. cuke Hema Kanwar Narendra Singh Rathod, The DCIT, Vs. 207, Gomes Defence Colony, Central Circle-2, Avenue-4, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AASPR 0262 M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.R. Sharma, CA & Shri R.K. Bhatra, CA. jktLo dh vksj ls@ Revenue by : Shri Anup Singh, Addl. CIT. lquokbZ dh rkjh[k@ Date of Hearing : 12/10/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 7/11/2023 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. These two appeals by the assessee are directed against two separate orders both dated 10.02.2022 of ld. CIT (A)-4, Jaipur passed under section 250 of the IT Act for the assessment years 2015-16 & 14-15. The grounds raised by the assessee in both the appeals are exactly common except change in figures. Therefore, the grounds raised in for the Assessment Year 2015-16 are reproduced as under :-

“ 1. That on the facts and in the circumstances of the case, the ld. CIT (A) is wrong, unjust and has erred in law in sustaining on protective basis the addition of Rs. 87,15,881/- and Rs. 1,74,318/- made to the income of the appellant by the ld. AO on substantive basis on account of (a) alleged bogus capital gain on sale of shares u/s 68 and (b) commission allegedly paid to obtain the said income from capital gain u/s 69C of the I.T. Act, 1961 respectively even though said income has been accepted and owned by her husband Sh Narendra Singh in application filed by him before the Income Tax Settlement Commission (ITSC) u/s 245C of the I.T. Act, 1961 and said application has been accepted by the Hon’ble ITSC u/s 245D of the IT Act, 1961 vide order dt. 24.02.2022.

2. That the appellant craves the permission to add to or amend to any of the above grounds of appeal or to withdraw any of them.”

Since common grounds are raised in both the appeals, therefore, for the sake of convenience, we dispose off both the appeals by this combined order. We first take up appeal in for the assessment year 2015-16.

Now the assessee is in appeal before us.

The said additions were also upheld by the ld. CIT (A) on protective basis. It was rightly submitted before us by ld. A/R that without prejudice to ground raised by the assessee in the present appeal, Shri Narendra Singh Laxman Singh Rathod, husband of the assessee from the date of search accepted that long term capital gain declared in the return of his wife i.e. present assessee is from his own sources of income and accordingly assessable in his hands. It was also submitted by ld. A/R that after search, the husband of the assessee filed settlement application under section 245C of the IT Act before the Income Tax Settlement Commission on 24.01.2020. A copy of the said settlement application filed also included the capital gain income declared in the income tax return of present assessee i.e. Smt. Hema Kanwar and the same has been placed on record by way of paper book. It was also submitted that Shri Narendra Singh Laxman Singh Rathod has also paid due taxes thereon and the copies of challan receipts have also been placed on record. We have perused the documents placed on record before us in the shape of settlement application under section 245C of the IT Act filed before Income Tax Settlement Commission and further we also noticed that the Income Tax Settlement Commission has accepted the said settlement application filed by the assessee and an order under section 245D(2C) of the IT Act, 1961 was passed on 20.03.2020.

The copy of the said order has also been placed by the assessee in paper book.

However, the ld. CIT (A) dismissed the appeal of the assessee by holding that the final order of Income Tax Settlement Commission under section 245D has not been passed till now and, therefore, in order to protect the interest of revenue addition so made by the AO are sustained in the hands of the present assessee on protective basis.

3.1 After analyzing and scrutinizing the facts as well as the legal proposition of the present case, we find that it is an undisputed fact that Shri Narendra Singh Laxman Singh Rathod i.e. husband of the assessee has already accepted that long term capital gain declared in the return of his wife i.e. present appellant is from his own sources of income and is thus accordingly assessable in his hands. In order to support the said contention, Shri Narendra Singh Laxman Singh Rathod has filed Settlement Application under section 245C of the IT Act before the Income Tax Settlement Commission on 24.01.2020 wherein the capital gain income declared in the ITR of present appellant has been included by her husband in his own hand on which due taxes have also been paid by him, but the ld. CIT (A) dismissed the grounds raised by the assessee by holding that the final order of Income Tax Settlement Commission has not been passed till now. Therefore, keeping in view the peculiar set of facts of the present case and also keeping in view the interest of justice, we set aside the order of the ld. CIT (A) and restore the matter to the file of the AO with a direction that in the event of passing final order by the Income Tax Settlement Commission under section 245D, the addition so made in the hands of the assessee be deleted forthwith with an intimation to the assessee. A.Y. 2014-15 :

Order pronounced in the open court on 7/11/2023.