PRADEEP KUMAR MALHOTRA.,KOLKATA vs. I.T.O WD - 27(4),KOLKATA., KOLKATA
What did the Tribunal hold?
The Tribunal held that the same income cannot be taxed twice and that the property belonged to the HUF, not the assessee. Since the income was already taxed in the hands of the HUF, the addition in the hands of the assessee was reversed.
What were the facts?
The assessee sold a property for ₹1.30 crores but did not disclose it in the return of income. The Assessing Officer treated the sale proceeds as Short Term Capital Gains (STCG) in the hands of the assessee, as the assessee failed to provide evidence that the property belonged to an HUF.
What were the issues?
Whether the capital gain arising from the sale of property should be taxed in the hands of the individual assessee or the HUF, and whether the AO properly verified the transaction.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, KOLKATA BENCH “A” KOLKATA
Before: Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi
आदेश /O R D E R
PER Waseem Ahmed, Accountant Member:-
This appeal by the assessee is against the order of Commissioner of Income Tax (Appeals)-XIV, Kolkata dated 20.12.2012. Assessment was framed by ITO Ward-27(4), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 29.12.2011 for assessment year 2009-10.
Solitary ground raised by assessee is as regards that Ld. CIT(A) erred in confirming the action of Assessing Officer on account of treating the income of M/s P.K.Malhotra & Others (HUF) in the name of assessee.
Brief facts of the case are that assessee is an individual and has earned income from salary and sale of property. During the year, assessee sold its Pradeep Kr. Malhotra v. ITO Wd-27(4), Kol. Page 2 property for a consideration of ₹ 1.30 crores. The PAN of assessee was also furnished to the Registry Authority but assessee did not furnish any information about the sale of property in its return of income. The AO during the assessment proceedings sought clarification from assessee regarding the non-disclosure of sale-purchase of the property in the return of income. In compliance thereto assessee submitted that the impugned property belongs to M/s P.K.Malhotra and Other (HUF) and as such the assessee has not sold any property during the year. However, assessee failed to produce any documentary evidence in support of its claim that property belong to aforesaid HUF. Therefore in the absence of necessary evidence AO treated the entire amount of ₹ 1.30 crores as Short Tram Capital Gains (STCG) and added it to the income of assessee.
Matter was carried over to Ld. CIT(A) who confirmed the action of AO by observing as under:- “3. I have carefully considered the assessment order. The Ld. A/R of the appellant appeared during the course of the appellate proceedings. However, neither any written submission was field by him nor any evidence was produced in respect of the ground of appeal. No evidence has been produced either before the AO or before me to show that the said property belonged to HUF. The information gathered by the Assessing Officer revealed that the transaction was done by the appellant and his PAN was given to the registering authority. The appellant has neither furnished the cost of acquisition of the property or the date thereof either before the AO or before me. In the fact and under the circumstances of the case, nothing worthy of merit was produced before me to controvert the findings of the Assessing Officer. Therefore, I hold that there is no merit in the ground of appeal raised by the appellant. Accordingly, the addition made by the Assessing Officer on account of the capital gain amounting to Rs.1,30,00,000/- under the heard Short-term capital gain in the hands of the appellant is confirmed. Accordingly, Ground No.1 of the appeal is dismissed.”
Being aggrieved by this order of Ld. CIT(A) assessee came in second appeal before us. Shri K.K.Goswami, Ld. Authorized Representative appearing on behalf of assessee and Shri Rajat Kumar Kureel, Ld. Departmental Representative appearing on behalf of Revenue.
Pradeep Kr. Malhotra v. ITO Wd-27(4), Kol. Page 3 5. Before us Ld. AR submitted written submission which is running at pages 1 to 5 and stated that the property exclusively belonged to HUF and not to assessee. The ld. AR drew our attention at page 2 of the property document where it is clearly mentioned that this Sale Deed is executed at New Delhi on 07.08.2008 in the name of M/s P.K.Malhotra and others HUF. The assessee shri P.K.Malhortha S/o Lt. F.C.Malhotra resident of 465 Block, New Alipore, Kolkata is acting as Karta of the aforesaid HUF. In addition to above, Ld. AR also submitted copy of assessment order in case of Shri P.K.Malhotra and other HUF for the AY 2009-10 where the transactions of the sale and purchase of the impugned property was duly assessed in the hands of HUF. Further Ld AR submitted that the property registry documents were not submitted before the Authorities Below as these papers were placed in the office of M/s Summoson Export (P) Ltd., which is under liquidation and under the control of official liquidator. The assessee is the director of the said company. He further submitted that AO failed to collect the required information by exercising his power u/s 133(6) of the Act and requested the Bench to reverse the orders of Authorities Below. On the other hand, Ld. DR vehemently relied on the orders of Authorities Below.
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