2017 (12) TMI 871 - AT - Income Tax

Levy of capital gains - co-ownership - Held that - Just because her name was mentioned as a vendor, 1/3rd of the capital gains have been brought to tax in her hands, without examining whether she had any title to the property and whether she had received any consideration. Now, that the title itself is disputed, we are of the opinion that the orders passed by the AO and CIT(A) are to be set aside and the entire matter is to be restored to the file of AO to examine afresh and determine whether assessee has any title to the property and whether she has received any consideration. AO is free to examine all the aspects and determine it afresh on the facts of the case and as per the provisions of law. With these directions, the orders of the authorities are set aside and the entire issue is restored to the file of AO for fresh consideration. Assessee should be given due opportunity to make the submissions/presentation of facts.

Issues:
1. Delay in filing the appeal
2. Assessment of capital gains in the hands of the assessee
3. Validity of the transaction and ownership rights

Analysis:

*Issue 1: Delay in filing the appeal*
The appellant filed an appeal against the order of the Commissioner of Income Tax (Appeals) with a delay of 430 days. The appellant, who was residing in Singapore, explained the reasons for the delay, stating that she was not aware of the proceedings as the order was not served on her. The appellant provided a detailed affidavit outlining the circumstances that led to the delay. The ITAT, after considering the affidavit and objections raised by the DR, admitted the appeal, condoning the delay, as it was satisfied that the appellant was prevented by a reasonable cause from filing the appeal earlier.

*Issue 2: Assessment of capital gains in the hands of the assessee*
The appellant, an individual, was involved in a property transaction which led to the initiation of proceedings under section 147 for taxing capital gains. The AO determined the capital gains at ?1,31,53,067 in the hands of the appellant based on the 'agreement of sale cum General Power of Attorney'. The CIT(A) upheld the AO's decision, considering the appellant as a vendor in the transaction. However, the appellant contended that she did not receive any sale consideration and her brother confirmed the same in an affidavit. The ITAT observed that the ownership of the property was disputed and the appellant's title was not established. The ITAT set aside the orders of the authorities and remitted the matter to the AO for fresh examination to determine the appellant's title to the property and whether she received any consideration.

*Issue 3: Validity of the transaction and ownership rights*
The ITAT noted that the transaction was not a 'sale deed' but an 'agreement of sale cum Irrevocable General Power of Attorney'. The Hon'ble Court had held that the parties involved had no ownership rights to the property, which was in possession of the Hyderabad Water Works Department. The ITAT emphasized that without establishing the appellant's title to the property and the absence of a sale deed, the basis for levying capital gains was doubtful. The ITAT directed the AO to re-examine the issue in light of the Court's orders and the nature of the transaction. The ITAT highlighted that the appellant's lack of receipt of consideration and the disputed ownership required a fresh assessment by the AO.

In conclusion, the ITAT allowed the appeal for statistical purposes, setting aside the previous orders and restoring the matter to the AO for a fresh determination, emphasizing the need for a thorough examination of the appellant's title and consideration received in the property transaction.

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