I.T.O WD - 54(4),KOLKATA, KOLKATA vs. SMT. JHARNA GHOSH, KOLKATA

This appeal by revenue is arising out of order of CIT(A)-XXXVI, Kolkata in Appeal No. 227/CIT(A)-XXXVI/Kol/HG/10-11 dated 13.02.2013. Assessment was framed by ITO, Ward-54(4), Kolkata u/s. 264/143(3) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for AY 2005-06 vide its order dated 22.11.2010.

At the outset, Ld. Counsel for the assessee filed copy of Tribunal’s order in wherein dealing with the assessee’s appeal Tribunal has deleted the additions on the basis that the advance of sale proceed of house property was belonging to her husband amounting to Rs.6,12,500/- and also cash deposit of Rs.3,87,500/- belongs to assessee’s husband. Tribunal has considered this issue and adjudicated vide para 6 as under: “6. We find that the assessee is an advocate, whose husband late Tarun Kumar Ghosh suffering from Cancer died on 21-10-2004. Late Tarun Kumar Ghosh was forced to sale his house property and as per agreement he has received a sum of Rs. 28.25 lakhs partly by cash and partly by cheques. The sale deed was registered on 03-06-2004 i.e before the death of assessee’s husband, late Tarun Kumar Ghosh. From the above facts, it is clear that the property in question was sold by assessee’s late husband before his death and the receipts out of the sale proceeds are deposited in a joint bank account that of assessee and her late husband. Once this is the position the entire receipts are to be assessed in the hands of late husband although 7 ITA No.752/K/2013 Smt. Jharna Ghosh AY 2005-06 through legal heirs by adopting the procedure prescribed u/s. 159 of the Act. Neither the AO nor the CIT(A) has gone into this aspect despite the fact that the very issue was raised before the CIT(A). In term of the facts and circumstances, the estate of the deceased person can be assessed by adopting the procedure prescribed u/s.159 of the Act. Accordingly, the receipts out of the sale proceeds of the house property of deceased husband added in the hands of the assessee by the AO and confirmed by CIT(A) is hereby deleted. The revenue, if law permits, can take action on legal heirs to tax the estate of the deceased husband of the assessee after adopting the procedure prescribed u/s. 159 of the Act. Accordingly, this legal issue is deciding in favour of the assessee and assessment of unexplained money of Rs. 12.48 lakhs, income not disclosed during the year Rs.15.03 lakhs and income not disclosed during the year Rs.6,12,500/- is deleted.”

We have heard both the sides and gone through facts and circumstances of the case. We find that this appeal of revenue is covered by the Tribunal’s decision in assessee’s own case in dated 17.06.2015 and the findings of the Tribunal are reproduced above. In term of the above, the property belongs to assessee’s husband Shri Tarak Kumar Ghosh and consequently sale proceeds and cash arising out of the sale proceeds of this house property, in whose hand the receipts are to be assessed and not in the hands of the assessee. Accordingly, this appeal of revenue is also dismissed.

In the result, the appeal of revenue is dismissed.

Order is pronounced in the open court. Sd/- Sd/- (M. Balaganesh) (Mahavir Singh) Accountant Member Judicial Member