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Income Tax Appellate Tribunal, MUMBAI BENCHES “A”, MUMBAI
आदेश / O R D E R
Per Joginder Singh (Judicial Member) All these three appeals are by different assessees, who are close relatives, aggrieved by the impugned orders all dated 13/12/2006 of the ld. First Appellate Authority, Mumbai, considering the entire capital gain tax in the hands of elder brother of other co-owners, ignoring the explanation/evidence furnished by the assessee and further ignoring the government record, mentioning the names of all the co-owners.
During hearing of these appeals, Shri Pramod Kumar Parida, advanced arguments, which is identical to the ground raised by claiming that the issues involved in all the appeals are identical and the ld. First Appellate Authority, while coming to a particular conclusion ignored the fact that the property in hand was sold and the entire capital gain was kept by the elder brother as the matter was yet to be settled and pending in the court. It was pleaded that the proof of ownership of land, mentioning the names of all the twenty co-owners, including the assessee, was ignored. It was also pleaded that proper opportunity was not provided and particular decision was taken on the basis of partial remand report, submitted by the Assessing Officer. It was also asserted that the assessee can produce all the co-owners before the Assessing Officer or before the ld. Commissioner of Income Tax (Appeals) as may be directed by the Bench. On the other hand, the ld. DR, Shri G.K. Makwana, defended the conclusion arrived at in the impugned orders by contending that the addition was rightly made as the assessee neither produce the proof of joint ownership of the property and the entire gain kept by the elder brother himself. In reply, the ld. counsel for the assessee explained that the elder brother was holder of power of attorney on behalf of other nineteen co- owners.
2.1. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee Shri Kauntye M Tanna declared income of Rs.79,415/-, on 02/11/1998, which was processed u/s 143(1)(a) on 08/01/1999. In response to notices issued u/s 143(2) and 142(1) of the Act, the assessee attended the proceedings and filed the details. From the details of Mr. Pathik M. Tanna, elder brother of the assessee, who is also assessed in the charge of the present Assessing Officer, it was found that for assessment year 1998-99, a property situated in Nashik was sold for Rs.45 lakh vide agreement dated 14/01/1998. This property, measuring 3 hectares 60 R was purchases along with nineteen co-owners, including the assessee on 09/10/1987 for a consideration of Rs.7,04,700/- , the present assessee contributed Rs.70,000/- towards purchase price, which is 10% of the total purchase consideration. In the case of Pathik M. Tanna, the Assessing Officer held that the real land owners of the property are the present assessee (10%) and Mr. Pathik M. Tanna (90%) only and the remaining eighteen co-owners lent their names without contributing a penny towards a purchase consideration. By taking identical view, the addition was made in the hands of three assessees. The assessees felt aggrieved and filed appeal before the ld. Commissioner of Income Tax (Appeals), wherein, the stand taken in the assessment order was affirmed. The assessees are in further appeal before this Tribunal.
2.2. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, we note that the factum of power of attorney on behalf of all the nineteen members including the assessee was executed in favour of Mr. Pathik M. Tanna, on 26/09/1987. The physical possession was also given to the purchasers during the previous year relevant to A.Y. 1998-99, as per clause 4.1 (page-10) of the agreement dated 14/01/1998 (written in Marathi). During hearing, the ld. counsel for the assessee invited our attention to a document (page 87 of the paper book) containing the names of all the co-owners, which is duly certified by the Tlathi/ Gramadhikari, Nashik. This document was declared by the Assessing Officer to be managed by the assessees and its authenticity was not accepted. We are of the view that if the ld. Assessing Officer was not satisfied with the claimed co- ownership of the property, he was expected to get a report from the Revenue Officer/Tehsildar or as the case may be. However, it was not done so. Whether the remaining co- owners have contributed or not in purchasing the property but if they are co-owners, certainly, they have their vested rights in the property, unless and until contrary is proved by the ld. Assessing Officer. It is also noted that the conclusion in the impugned order was arrived at merely on the basis of partial remand report. Totality of facts, clearly indicates that the whole issues requires reconsideration at the level of the ld. Assessing Officer and remanded back to the file of the ld. Assessing Officer. In view of the factual matrix, the assessees are directed to produce all the co-owners along with revenue record (justifying the co-ownership of the property) before the ld. Assessing Officer. The ld. Assessing Officer is directed to examine the relevant record of the property and, if so desired, all the co-owners of the property and then decide in accordance with law. Since, the facts and the issues are germane out of the same transactions; therefore, all the appeals are remanded back. The assessees be given opportunity of being heard and with further liberty to furnish evidence, if any, in support of their claims. Thus, the appeals are allowed for statistical purposes.
Finally, the appeals of the assessees are allowed for statistical purposes.
This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 04/02/2016.