2023 (9) TMI 943 - AT - Income Tax

Capital gain computation - real owner of asset - In whose hands the short term capital gains on sale of land is to be assessed - whether in the hands of the assessee as claimed by the Revenue or the company to which with the assessee attributes the transaction? - HELD THAT - In a nutshell the concurrent finding of facts both by the AO and the ld. CIT(A) which have remained uncontroverted before us are that the impugned land was purchased in the individual name of the assessee out of sources which are not attributable to the company viz. KIDPL to which the assessee relates the transaction pertained to;that the assessee had entered into agreement with the KIDPL for development of the said land and the sale proceeds from sale of the land was also received by the assessee. In view of the same we see no reason to interfere in the order of the Ld. CIT(A) who has correctly appreciated the facts of the case found the transaction of purchase and sale of land completed in the hands of the assessee and accordingly held the short term capital gains earned thereon as being the income of the assessee. The claim of the ld. counsel for the assessee that the land was purchased by the assessee as director of the company clearly falls flat. AO and the ld. CIT(A) we find have clearly mentioned that the land was purchased in the individual name of the assessee and not as director of the company. Funds for the purpose of the land was also not found to be contributed by the company. The land having neither been purchased in the name of the company nor paid for by the company there is no case for treating the land as belonging to the company. Decided against assessee. Addition u/s. 68 - cash found in the bank account source of which remained unexplained - HELD THAT - As counsel though was unable to meet the adverse findings of the Ld. CIT(A) albeit relating to one bank account but at the same time the contention of assessee that the CIT(A) did not consider the other bank account of the assessee is also true. What emerges therefore is that the issue has not been considered in the complete perspective and needs to be considered afresh by CIT(A). We therefore restore the issue back to the Ld. CIT(A) to adjudicate it afresh after giving due opportunity of hearing to the assessee.

Summary

Issues Involved:
1. Calculation of capital gain in the hands of the appellant.
2. Addition made under section 68 of the Income Tax Act, 1961.

Issue 1: Calculation of Capital Gain

The primary issue relates to the addition made in the hands of the assessee of Rs. 6,57,83,900/- by way of short-term capital gains. The Assessing Officer (AO) found that the land was purchased in the individual name of the assessee, not on behalf of the company, and the payment for the land was not made by the company. The AO also noted that the assessee had entered into a development agreement with the company, leading to the conclusion that the transaction of purchase and sale of the land related to the assessee. Consequently, the short-term capital gain was taxed in the hands of the assessee.

The matter was appealed before the Commissioner of Income-Tax (Appeals) [CIT(A)], who reaffirmed the AO's findings after reviewing the facts. The assessee contended that the transaction related to the company and not the individual, citing a similar case from the ITAT Jaipur Bench. However, the Tribunal found that the facts of the case supported the AO and CIT(A)'s findings: the land was purchased in the individual name, the payment was not made by the company, and the sale proceeds were received by the assessee. The Tribunal upheld the order of the CIT(A), confirming the addition of Rs. 6,57,83,900/- as short-term capital gains taxable in the hands of the assessee.

Issue 2: Addition Under Section 68

The second issue pertains to the addition of Rs. 51,61,500/- made under section 68 of the Act due to unexplained cash deposits in the assessee's bank accounts. The AO noticed cash deposits of Rs. 11,79,000/- in IDBI Bank and Rs. 39,82,500/- in Gujarat Mercantile Co-op Bank Ltd. In the absence of any explanation from the assessee regarding the source of these deposits, the AO added the entire amount as unexplained credits.

Before the CIT(A), the assessee argued that the deposits were made from previous withdrawals and suggested adopting the peak credit method, claiming peak deposits of Rs. 2,95,000/-. The CIT(A) rejected this contention, noting that the withdrawals were made immediately after the cash deposits and were mostly by a third party, not the assessee. Consequently, the CIT(A) confirmed the addition of Rs. 51,61,500/-.

Upon appeal, the Tribunal found that the CIT(A) had not considered the issue in its entirety, particularly regarding one of the bank accounts. Therefore, the Tribunal restored the issue to the CIT(A) for fresh adjudication, giving the assessee a fair opportunity to present their case.

Conclusion:

The appeal of the assessee is partly allowed for statistical purposes, with the issue of unexplained cash deposits being remanded back to the CIT(A) for fresh consideration.

Order pronounced in the Court on 2nd August, 2023 at Ahmedabad.