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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
The assessee is in appeal before the Tribunal against the order of the learned CIT(A), Ahmedabad-5, Ahmedabad dated 30.03.2015 passed for Assessment Year 2008-09. The grounds of appeal taken by the assessee are argumentative and descriptive in nature. In brief the grievance of the assessee is that the ld. CIT(A) has erred in confirming addition of Rs.7,55,134/- made by the Assessing Officer on account of Long Term Capital Gain.
The brief facts of the case are that the assessee has filed her return of income on 25.07.2008, declaring total income of Rs.2,58,100/-. The case of the assessee was selected for scrutiny assessment and a notice under Section 143(2) of the Act was issued on 15.09.2009. The learned Assessing Officer got an information through AIR exhibiting the fact that a property having value of Rs.30,00,000/- was sold. The assessee is a Mrs. UnnatibenJayeshkumarNaikvs. ITO For AY: 2008-09 2 partner in the firm M/s. Bhavani Potteries to the extent of 1/3 shares. According to the Assessing Officer, this property was originally purchased by the firm, but has handed over the possession to the partners and they have sold the property on 03.07.2007. The Assessing Officer, therefore, was of the view that the capital gain arose out of this transaction deserves to be assessed in the hands of the assessee. The ld. Assessing Officer has worked out the sale value in the hands of the assessee to the extent of Rs. 10,00,000/- being 1/3 share. Thereafter, he reduced the cost and worked out the capital gain at Rs.7,55,134/-.
The appeal to the ld. CIT(A) did not bring any relief to the assessee.
The ld. Counsel for the assessee submitted that the Revenue Authorities have failed to consider all the materials on record. According to him, this property was owned by the firm. It was allotted to the firm by GIDC. In support to demonstrate that the property belongs to the firm, the assessee has made reference to the following documents:- i) GIDC allotment letter dated 23.09.1970 for purchase of said premises by firm ii) Copy of sale deed dated 03.07.2007 iii) GIDC possession letter iv) No due certificate issued by GIDC v) Copies of cheques for sales consideration vi) Correspondence with GIDC for transfer of shed vii) Office order from GIDC for transfer of shed
Copies of all these documents have been placed in the paper book. On the strength of these documents, it was contended that ld. CIT(A) has erred in assuming transfer of the said plot in favour of the partners prior to its sale. Any gain if arisen, then it would have been in the hands of the firm and not in the hands of the partners. Mrs. UnnatibenJayeshkumarNaikvs. ITO For AY: 2008-09 3
The learned Departmental Representative, on the other hand, relied upon the order of the ld. CIT(A).
I have duly considered the rival contentions and gone through the record carefully. A perusal of the allotment letter issued by GIDC dated 23.09.1970, which is available at page No.18 of the paper-book, revealed that this land was allotted by the GIDC to the firm. The cheques given by the vendee have been issued in the name of the firm; thus, the sale consideration was received by the firm. The ld. Assessing Officer has erred in harboring the belief that the property was vested in the partners because their names have been mentioned as representative of the firm in the sale deed. The Assessing Officer assumed that since the partners have signed the sale deed, it be construed that they have taken possession from the firm and constructively they have become the owner of the land and they have transferred the land to the ultimate vendor. To my mind, there is no such evidence. This belief is based on presumption only. The partners have signed the sale deed in the capacity of the partners of the firm and not in their individual capacity. Thus, no capital gain tax ought to be calculated in the hands of the individual. I allow the appeal of the assessee and delete the addition made by the Assessing Officer.
In the result, the appeal of the assessee is allowed. Order pronounced in the Court on 11th October, 2017 at Ahmedabad. (RAJPAL YADAV) JUDICIAL MEMBER Ahmedabad; Dated 11/10/2017 Biju T., Sr.PS Mrs. UnnatibenJayeshkumarNaikvs. ITO For AY: 2008-09 4
आदेश क" ""त"ल"प अ"े"षत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant
""यथ" / The Respondent. 3. संबं"धत आयकर आयु"त / Concerned CIT आयकर आयु"त(अपील) / The CIT(A) 4. 5. "वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड" फाईल / Guard file. आदेशानुसार/BY ORDER,उप/सहायक पंजीकार (Dy./Asstt.