HEMA KANWAR NARENDRA SINGH RATHOD,JAIPUR vs. DCIT, CENTRAL CIRCLE-2, JAIPUR
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: HON’BLE SHRI SANDEEP GOSAIN, JM &
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 ITA No. 159/JP/2022 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/-
2 ITA Nos. 159 & 158/JP/2022 Smt. Hema Kanwar Narendra Singh Rathod, Jaipur.
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.
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 ITA No. 159/JP/2022 for the assessment year 2015-16.
The brief facts of the case are that the assessee derives her income from
salary and other sources. Assessee filed her original return of income under section
139(1) of the IT Act, 1961 on 29.01.2016 for the assessment year 2015-16 declaring
a total income at Rs. 3,14,250/-. Assessee belongs to Kiran Fine Jewellers Group, on
whose premises, a search and seizure under section 132 and/or survey action under
section 133A of the Act was carried out on 02.08.2017. Pursuant to this, AO issued
a notice under section 153A of the Act to the assessee. In compliance, the assessee
filed her return of income on 20.10.2018 for the assessment year 2015-16 declaring
a total income of Rs. 3,14,250/-. Finally, the AO completed the assessment under
section 144 read with section 153A of the IT Act vide order dated 29.11.2019 at a
total income of Rs. 92,04,450/- by making an addition of Rs. 87,15,991/- under
section 68 of the IT Act on account of undisclosed income earned through bogus
long term capital gain and Rs. 1,74,318/- under section 69C of the Act on account of
3 ITA Nos. 159 & 158/JP/2022 Smt. Hema Kanwar Narendra Singh Rathod, Jaipur.
commission paid on the aforesaid bogus long term capital gain taxed at the rate of
30% as per provisions of section 115BBE of the Act. Aggrieved by the order, the
assessee preferred appeal before the ld. CIT (A). The ld. CIT (A) taking into
consideration all the relevant facts and placing reliance on the statement recorded
on oath under section 132 of the IT Act, dismissed the appeal of the assessee.
Now the assessee is in appeal before us.
We have heard the rival contentions, perused the material on record and
gone through the orders of the lower authorities. The controversy before us is
regarding the addition made by the AO on account of undisclosed long term capital
gain and further on account of commission paid on aforesaid long term capital gain.
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
4 ITA Nos. 159 & 158/JP/2022 Smt. Hema Kanwar Narendra Singh Rathod, Jaipur.
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
5 ITA Nos. 159 & 158/JP/2022 Smt. Hema Kanwar Narendra Singh Rathod, Jaipur.
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. ITA NO. 158/JP/2022 A.Y. 2014-15 :
Since in the assessee’s own case in ITA No. 159/JP/2022 for the assessment
year 2015-16, we have set aside the order of the ld. CIT (A) and restore the matter
to the file of the AO with the direction that in the event of passing final order by the
Income Tax Settlement Commission, the addition so made in the hands of the
assesee be deleted, therefore, keeping in view similar grounds/facts are involved in
the present appeal, we set aside the order of the ld. CIT (A) and restore this issue
also to the AO with similar direction, supra.
In the result, appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open court on 7/11/2023.
Sd/- Sd/- ¼lanhi xkslkbZ½ ¼ jkBkSM+ deys'k t;arHkkbZ ½ (RATHOD KAMLESH JAYANTBHAI) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 7/11/2023. Das/ आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू
6 ITA Nos. 159 & 158/JP/2022 Smt. Hema Kanwar Narendra Singh Rathod, Jaipur.
vihykFkhZ@The Appellant- Smt. Hema Kanwar Narendra Singh Rathod, Jaipur. 2. izR;FkhZ@ The Respondent- The DCIT, Central Circle-2, Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 159 & 158/JP/2022}
vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत
