Kailash Kumari, Meerut vs Department Of Income Tax

ITA NO. 153/Del/2013

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH "D", NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. No. 153/DEL/2013 A.Y. : 2009-10 INCOME TAX OFFIER, SMT. KAILASH KUMARI, WARD 1(3), VS. W/O LATE SHRI KISHAN MEERUT CHAND, 106/B, GALI NO. 2, THAPAR NAGAR, MEERUT (PAN:AXEPK0055C) (APPELLANT) (RESPONDENT)

Department by : Sh. B.R.R. KUMAR, Sr. DR Assessee by : Sh. H.C. JAIN, ADV. & SH. R.P. NARANG, ADV.

Date of Hearing : 16-03-2015 Date of Order : 18-03-2015

ORDER PER H.S. SIDHU, JM

Revenue has filed this appeal against the Order dated 5.10.2012 passed by the Ld. Commissioner of Income Tax (Appeals), Meerut pertaining to assessment year 2009-10.

2. The grounds raised by the Department read as under:-

"1. Whether in the facts and circumstances of the case, the Ld. CIT(A) has erred in law in deleting the addition of Rs. 32,32,639/- towards long term capital gain ignoring the fact that properly was acquired by the assessee through Will dated

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26.7.1978 which was executed after so called agreement dated 21.5.1976 for sale between Shri Baij Nath Garg and Shri Kishan Chand Bathla and thus, superseded the agreement. The said agreement does not have any legal sanctity in absence of any validity to claim the sale. Moreover, assessee herself has executed sale deed in the capacity of seller and thus has relinquished her right in the property which is a transfer u/s. 2(47) of the I.T. Act, 1961 and any gain arising out of such transfer after taking into consideration the provisions of section 50C of the I.T. Act, 1961 is chargeable to income tax under section 45 of the I.T. Act, 1961.

2. That the appellant craves leave to add, modify and / or delete any ground(s) of appeal.

3. In the facts and circumstances of the case, the order of the CIT(A) may be set aside and that of the AO restored.

3. The brief facts of the case are that the assessee filed her return of income for A.Y. 2009-10 declaring total income of Rs. 1,74,790/- from other sources and short term capital loss of Rs. 1,01,825/- (which will not be set off from any other head of income - same thing was narrated by the assessee in her computation of income) on 18.3.2010. The case of the assessee was processed on AST at returned income. Later on, the case was selected for scrutiny and notice u/s. 143(2) was issued on 28.9.2010 which was duly served upon the assessee through Speed Post. Thereafter, other statutory notices u/s. 142(1) of the I.T. Act, 1961 were issued

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from time to time. In response thereto, assessee's counsel attended the hearing and submitted requisite details/ documents before the AO. The assessment was framed u/s. 143(3) of the I.T. Act vide order dated 5.12.2011 and made the addition of Rs. 32,32,639/- on account of long term capital gain.

4. Against the aforesaid assessment order of the Assessing Officer, Asseessee appealed before the Ld. First Appellate Authority, who vide impugned order 5.10.2012 has partly allowed the appeal of the assesee.

5. Aggrieved by the aforesaid order dated 5.10.2012, Revenue is in appeal before the Tribunal.

6. At the time of hearing Ld. Departmental Representative has relied upon the order of the Assessing Officer and reiterated on the contentions raised in the grounds of appeal filed by the Revenue.

7. On the other hand, Ld. Counsel of the assessee relied upon the order of the Ld. CIT(A) and submitted that the order of the Ld. CIT(A) may be upheld.

8. We have heard both the parties and perused the records especially the impugned order dated 5.10.2012, we find that Ld. CIT(A) has gone through the AO's order, assessee's elaborate submissions including the enclosures i.e. copies of the Sale Deed, Agreement to Sell, Receipt, Will and House Tax Receipts, the AO's remand report and assessee's counsel rejoinder. Keeping in view the orders of the Revenue authorities, we are of the view that the Ld. CIT(A) is right in holding that there is no material with the AO for concluding that the transfer of the property in question giving rise to long term capital gain amounting to Rs.32,32,639/-

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ITA NO. 153/Del/2013

liable to tax took place in the year under appeal. The AO's remand

report which has been replied and rebutted by the ld. Counsel of the

assessee point-wise, does not make any worth-while point with

reference to the ld. Counsel's submissions. Ld. CIT(A) has correctly

observed that the ld. Counsel of the assessee on the other hand, has

been able to bring out facts with supporting unrebutted evidence

which are contained in the forgoing paras to show\hat by virtue of

the written Vendor under the Agreement to Sell ever passed on the

possession of the property to the appellant or she ever acquired any

ownership right or title over the property, the property in fact

vested and stood transferred to the Vendee on 21.05.1976. We also

find considerable cogency in the finding of the Ld. CIT(A) that

assumptions and presumptions on the part of the AO for coming to

the conclusions and arriving at and making addition of the

Rs.32,32,639/- for Long Term Capital Gain cannot be sustained as

these have been fully rebutted and disproved on the basis of

material on record. In the background of the aforesaid detailed

discussions, we find that Ld. CIT(A) has rightly deleted the addition

of Rs. 32,32,639/- on account of Long Term Capital Gain. Therefore,

we do not see any reason to interfere with the well reasoned order

of the Ld. CIT(A), accordingly, we uphold the same and decide the

issue against the Revenue by dismissing this ground of appeal.

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9. In the result, the Appeal filed by the Revenue stands dismissed.

Order pronounced in the Open Court on 18/03/2015.

Sd/- Sd/-

[T.S. KAPOOR] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 18/3/2015 "SRBHATNAGAR" Copy forwarded to: - 1. Appellant - 2. Respondent - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY By Order,

Assistant Registrar, ITAT, Delhi Benches

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