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

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ITA 728/KOL/2013Status: DisposedITAT Kolkata26 November 2015AY 2005-062 pages
AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that since the property and its sale proceeds belonged to the assessee's deceased husband, the assessment should have been made in his hands, not the assessee's. Therefore, the additions made to the assessee's income were deleted.

What were the facts?

The Revenue appealed against an order that deleted additions made to the assessee's income. The additions were based on sale proceeds of a house property and cash deposits, which the Tribunal had previously held belonged to the assessee's deceased husband.

What were the issues?

Whether sale proceeds of a property sold by a deceased person before his death, and deposited in a joint account, should be taxed in the hands of the legal heirs or the surviving joint account holder.

Which sections of the Income-tax Act were involved?

Section 159

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “C” BENCH: KOLKATA

Before: Shri Mahavir Singh, JM & Shri M. Balaganesh, AM]

Hearing: 26.11.2015Pronounced: 26.11.2015

Income-tax Officer, Ward-54(4), Kol. Vs. Smt. Jharna Ghosh (PAN: ADNPG3179L) (Appellant) (Respondent) Date of hearing: 26.11.2015 Date of pronouncement: 26.11.2015 For the Appellant: Shri D. Lahiri, JCIT, Sr. DR For the Respondent: Shri Soumitra Chowdhury, Advocate ORDER

Per Shri Mahavir Singh, JM:

1.

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.

2.

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.”

Smt. Jharna Ghosh AY 2005-06 3. Ld. Counsel for the assessee in view of the above stated that once the property is considered to be of assessee’s husband at that point of time the sale proceeds also belongs to him and assessment should have been made in the hands of assessee’s husband late Shri Tarun Kumar Ghosh. When this order of Tribunal was confronted to Ld. Sr. DR, he was unable to say anything on the same or neither he controverted or contested the order of the Tribunal.

4.

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.

5.

In the result, the appeal of revenue is dismissed.

9.

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

Dated : 26th November, 2015 Jd. Sr. P.S Copy of the order forwarded to:

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