Ito Rewari v. M S Rohtash Santra Bhateri Rewari

1 Ita No 5916 Del 2014 In The Income Tax Appellate Tribunal Delhi Bench F New Delhi Before Shri R K Panda Accountan T Member And Ms Suchitra Kamble Judicial Member I T A No 5916 Del 2014 Assessm Ent Year 2007 08 Ito Ward 2 Rewari Appellant Vs Rohtash Santra Bhateri D O Sh Tara S O Sh Harsahai Huf Vill Garhi Alawalpur Dharuhera Rewari Respondent Appellant By Sh Kapil Goel Adv Respondent By Sh Atiq Ahmad Sr Dr Order Per Suchitra Kamble Jm This Appeal Has Been Filed By The Revenue Against T He Order Dated 28 08 2014 Passed By Cit A Rohtak For Assessment Year 2007 08 2 The Grounds Of Appeal Are As Under 1 On The Facts And In The Circumstances Of The Case The Ld Cit A Has Erred In Deleting The Addition Amounting To Rs 82 68 750 Made By Ao On Account Of Long Term Capital Gain By Observing T Hat Capital Gain Be Assessed In The Hands Of Four Individuals As Agains T Assessed By The Ao In The Status Of Huf 2 On The Facts And In The Circumstances Of The Case The Ld Cit A Has Date Of Hearing 27 12 2017 Date Of Pronouncement 29 12 2017 2 Ita No 5916 Del 2014 Erred In Not Appreciating That During Assessment Pr Oceedings The Assessee Did Not Agitate That The Capital Gain Aris E In Hands Of Individuals 3 On The Facts And In The Circumstances Of The Case The Ld Cit A Has Erred In Accepting The Argument Of The Assessee Tha T Issue Of Non Taxability Of The Capital Gains In Hands Of The Huf Was Raised Before The Ao Vide Letter Dated 10 05 2012 Copy At Appendix 1 The Contents Of The Letter Do Not Agitate Taxability In Hands Of Hu F 4 On The Facts And In The Circumstances Of The Case The Ld Cit A Has Erred In Not Appreciating That During The Assessmen T Proceedings The Assessee Itself Furnished Calculation Of Capital Ga In In The Hands Of The Assessee Vide Letter Dated 15 03 2013 Copy At App Endix 2 5 The Appellant Craves Leave To Add Amend Alter M Odify Delete And Or Change Any Of The Above Grounds On Or Before The Da Te Of Hearing 3 On The Basis Of Air Information Available With The Office The Assessee Had Sold Agriculture Land Of Rs 82 68 750 On 28 04 2006 The Land Sold In Question Was Falling Within 5 Km Distance From The Limits Of Notified Area Dharuhera Therefore The A O Observed That The La Nd Sold By The Assessee Was Covered In The Definition Of Capital Assets In View Of The Notification Issued By The Cbdt On 06 01 1994 F No 164 03 87 Itai Dated 06 01 94 Notice U S 148 Of The I T Act 1961 Was Issued On 21 03 2012 After Recording The Reasons On 19 02 2013 The Assessee Filed Its Return Of Inc Ome Declaring Total Income At Rs Nil Notices U S 143 2 L 42 1 Were Issued On 11 03 2013 And The Reasons Recorded Were Duly Supplied To The Assessee In Com Pliance Of Notices None Attended The Assessment Proceedings And Only A Writ Ten Reply Dated 15 03 2013 Was Filed Which Was Perused And Placed O N Record By The Assessing 3 Ita No 5916 Del 2014 Officer The Assessing Officer Made Addition On Account Of Long Term Capital Gain To The Extent Of Rs 82 68 750 By Holding Tha T Assessee Did Not Furnished Any Documentary Evidence Showing As To H Ow The Value Of Land Was Taken At Rs 15 94 500 As On 01 04 1981 The As Sessing Officer Held That The Fair Valuation Of Land As On 01 04 1981 Devoids Any Merits And Did Not Accept Assessees Contentions 4 Being Aggrieved By The Assessment Order The A Ssessee Filed Appeal Before Cit A The Cit A Allowed The Appeal Of The Asses See 5 The Revenue Has Filed Present Appeal The Ld D R Submitted That The Cit A Erred In Deleting Addition Amounting To Rs 82 68 75 0 Made By The A O On Account Of Long Term Capital Gain By Observing That Capital Gain Be Assessed In The Hands Of Four Individuals As Against Assesse D By The A O In The Status Of Huf The Ld Dr Submitted That During Assessment P Roceedings The Assessee Did Not Agitate That The Capital Gain Arise In Han Ds Of Individual 6 The Ld Ar Submitted That Rohtash Santra Bhate Ri Roshni Are Four Individual And The Assessing Officer Wrongly Held T Hat These Are Huf Which Is Legally Not Sustainable The Ld Ar Relied On The Order Of Cit A 7 We Have Heard Both The Parties And Perused All T He Record The Cit A Held As Under 2 3 Firstly On Basis Of Judicial Precedents Below It Is Humbly Accentuated That There Is No Person Assessable In E Yes Of Law As Deemed By A O In Status Rohtash Santra Bhateri D O Sh Tara S O Harshai Huf So As To Pass A Valid Order In Eyes Of Law That Is For Assessing Gains Arising From Sale Of L And Belonging To Four Individuals A O Made Consolidated Assessment In Ha Nds Of Huf Which Is 4 Ita No 5916 Del 2014 Impermissible And Beyond The Law The Submissions Made Before Me And The Facts On Rec Ord Prove That The Assessment Has Been Made In Respect Of An Huf T Hat Did Not Exist The Appellant Had Already Appraised The Ao Of This Fact Vide A Letter Dated 10 05 2012 A Sale Deed Executed For A Piece Of Lan D Belonging To Four Persons Does Not Constitute Each Individual Owner A S Being A Closed Body Or Huf There Is No Proof Of Pooling Of Joint Resou Rces To Justify Such A Clubbing Of Income What Is Required Is That The In Come So Earned By Each Individual Should Be Examined In Respect Of Capital Gain Accruing If Any In Their Individual Capacity The Ao Is At Liberty To Take Action As Per Law In Each Individual Case Viz Mr Rohtash Ms Santra Ms Bhateri And Ms Roshni The Addition In The Capacity Of Huf Is Deleted These Are Three Different Individuals And Never Was Huf The Assessing Officer Wrongly Presumed That It Is Huf Thus The Cit A Rightly Allowed Appeal Of The Assessee And There Is No Need To Inte Rfere With The Findings Of The Cit A 8 In Result The Appeal Of The Revenue Is Dismisse D Order Pronounced In The Open Court On 29 Th December 2017 Sd Sd R K Panda Suchitra Kamble Accountant Member Judicial Memb Er Dated 29 12 2017 R Naheed Copy Forwarded To 1 Appellant 2 Respondent 3 Cit 4 Cit Appeals 5 Ita No 5916 Del 2014 5 Dr Itat Assistant Registrar Itat New Delhi Date 1 Draft Dictated On 27 12 2017 Ps 2 Draft Placed Before Author 28 12 2017 Ps 3 Draft Proposed Placed Before The Second Member 2017 Jm Am 4 Draft Discussed Approved By Second Member Jm Am 5 Approved Draft Comes To The Sr Ps Ps 29 12 2017 Ps Ps 6 Kept For Pronouncement On Ps 7 File Sent To The Bench Clerk 29 12 2017 Ps 8 Date On Which File Goes To The Ar 9 Date On Which File Goes To The Head Clerk 10 Date Of Dispatch Of Order 6 Ita No 5916 Del 2014