SHRI KAMALDEEP SINGH,PHAGWARA vs. INCOME TAX OFFICER WARD-2, PHAGWARA

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ITA 755/ASR/2017Status: DisposedITAT Amritsar20 December 2022AY 2009-105 pages
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What did the Tribunal hold?

The Tribunal held that the assessment order was passed without jurisdiction as the capital gains were assessed in the hands of the power of attorney holder, not the actual owner of the land. The revenue failed to provide any material evidence to prove ownership by the assessee.

What were the facts?

The Assessing Officer (AO) made an assessment of capital gains in the hands of the assessee, who was the power of attorney holder for the owner of the land. The assessee contended that the assessment was made in the wrong hands and was therefore without jurisdiction.

What were the issues?

Whether the assessment of capital gains in the hands of a power of attorney holder, instead of the actual owner, is valid and within the AO's jurisdiction.

Which sections of the Income-tax Act were involved?

Section 147

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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR

Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE

Hearing: 17.11.2022Pronounced: 20.12.2022

The present appeal has been filed by the assessee against the order dated 19.09.2017 passed by the ld. Commissioner of Income Tax (Appeals)-2, Jalandhar in respect of Assessment Year 2009-10.

2.

The assessee has raised the following grounds of appeal:

Kamaldeep Singh v. ITO “1. That the ld. A.O. has wrongly included the said land/Capital Asset within the meaning of Sec. 2(14) and has not done the best judgment assessment.

2. That the ld. CIT(A) has wrongly rejected the evidence filed before him and the order is bad-in-law, as well as, on facts.

3. That appellant craves to add or mend any ground of appeal before the appeal is finally heard or disposed off.

4. That the order may kindly be modified or another consequential relief be allowed.”

3.

Amended grounds of appeal:

“1. That the ld. CIT(A) has wrongly rejected the additional evidence U/R 46-A by ignoring that ld. A.O. completed the assessment on ex-parte basis.

2. That the ld. CIT(A) has wrongly ignored the procedure u/s 250(4) and sec. 251(1)(a) and explanation to sec. 251(2).

3. That the order of CIT(A) on merits is bad-in-law, as well as, on facts.

4. That the matter may be denovo to A.O., to make the correct assessment.

4.

Additional grounds of appeal:

“1. That the ld. AO is bound to make correct assessment and in the hands of correct person/assessee only and further assessment made in the wrong hands is beyond jurisdiction, ultra-virus, illegal, bad-in-law, and void ab- initio.”

5.

The counsel for the assesse filed additional legal ground on validity of assessment in wrong. Since, the issue raised in the additional ground is Kamaldeep Singh v. ITO legal issue which goes to the root of the matter and therefore the additional ground is admitted in view of the following judgement:

(i) NTPC vs. CIT(1998) 229 R 383 (SC) (ii) Dr. Raghuvendra Singh Vs. CIT (P & H) ITA- 806/10 (iii) Sh. Balaji Alloys 333 ITR 335 (J & K)

6.

At the outset, the Ld. Counsel, has submitted that in the present case, the revenue has assessed capital gain in the hands of appellant assesse, the power of attorney holder of Sh. Sukhdev Singh who was the owner of the disputed land by the AO. The assesse counsel submitted that neither the AO nor the CIT(A) brought any material on record indicating that the ownership of the said land belongs to assessee and thus contended that the assessment order passed by the AO is without jurisdiction and hence, it is void-ab- initio, and bad-in-law.

7.

The Ld. DR though objected to the contention of the assessee.

However, he could not controvert the facts that assessment was made in the wrong hands.

Kamaldeep Singh v. ITO 8. Heard. It is not disputed that the assessment was made by the AO in the wrong hands, as the assessee was power of attorney holder of Sh.

Sukhdev Singh who was the owner of the disputed land, as per reasons recorded u/s 147 (APB, Pg.11) and as per A.O’s order page-3. It is seen that assessee received the power of attorney from Sh. Sukhdev Singh dtd.

19-10-06 (APB, Pg.489-491), English translation (APB,Pg.492-493) and that the appellant sold the land as mentioned in the reasons recorded on behalf of Sh. Sukhdev Singh. Copy of the sale deed is placed on record (APB, Pg. 36). It is trite law that No addition can be made in the hands of power of attorney holder and further revenue has not brought on record any material evidence indicating that ownership of the said land belongs to appellant assesse. Therefore, we hold that the assessment order is passed without jurisdiction.

9.

Similar view is held by the ITAT Jaipur Bench Jaipur in the case of ‘Shri Gyan Chand Agarwal vs. Addl. CIT (ITAT, Jaipur)’, in vide order dtd. 10-07-17, and the Hon’ble Apex court in the case of ‘Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Another’, 340 ITR 01 (Supreme Court).

Kamaldeep Singh v. ITO 10. In view of the matter, we hold that the assessment order is passed by the Assessing Officer without assuming jurisdiction on the assesse and hence such assessment order is held void ab initio and bad-in-law.

11.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 20.12.2022

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