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TMI Blog2017 (4) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/-.The AO completed the assessment u/s.143(3) of the Act on 28.3. 2013,determining her income at Rs. 2.05 crores. 2. First two ground of appeal are about validity of protective assessment passed by the AO with regard to immovable property sold.During the assessment proceedings the AO received specific information under CASS that the assessee had sold property, on 22.2.2010, for Rs. 4.05 crores, that in the year 2001 the assessee alongwith her husband Donald Sequeira (DS) had become the tenants of Flat No.F-1 in a building at Colaba by paying a premium of Rs. 30 lakhs vide tenancy agreement,dated 24.12.2001,that vide agreement,dated 15.3.2007, the Flat was purchased by the assessee and her husband for a consideration of Rs. 50 lakhs, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferors that the receipt of sale consideration of Rs. 4.05 crores had been signed by both the persons,that on the sale of flats short term capital gain would arise, as the properties had been purchased in the year 2007 and sold in February,2010.Finally,he held that entire short term capital gain(STCG)arising on sale of the said two flats would be taxed in the hands of the assessee on protective basis.Accordingly he computed STCG of Rs. 2.04 crores in the hands of the assessee on protective basis. 3. Aggrieved by order of AO,the assessee filed an appeal before First Appellate Authority (FAA). Besides arguing the case on merits the assessee also filed additional ground challenging the assessment made on protective basis.After considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the case of Suresh K.Jajoo, (39SOT514).The Departmental Representative(DR)supported the order of the orders of the AO and the FAA and contended that the assessee had signed the sale agreement as joint owner. 5. We have heard the rival submissions and perused the material before us.We find that the DS and assessee had jointly purchased flat F.1 in the year 2007,that later on DS purchased flat F.2 also,that family problems led to divorce of the assessee and DS,that the assessee got possession of 1478 Sq.ft.of flats and DS became owner of the rest of the flats,that he sold F.2 and part of flat F.1 for a sale consideration of Rs. 4.05 crores,that he did not file return of income for the transaction in question,that the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. Such assessments are made to protect the interest of the Revenue so much so, unless such protective or alternate assessment is made, assessment proceedings against the party finally found to be liable may become barred by time. It has now become an established practice that in the case of doubt as to the person who will be and deemed to be in receipt of the income, it is open to the Department to make protective or alternative assessment. In Lalji Haridas v. ITO [1961] 43 ITR 387, the Supreme Court observed at page 392 as follows : ''In cases where it appears to the income-tax authorities that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be made even against B. But the recovery on the basis of such protective assessment would depend upon the ultimate decision as to whether the income shown to have been earned by B belonged to A. If the finding is in the affirmative, the protective assessment will cease to be operative as the income covered by that assessment would be included in the income of A." In the matter of Suresh K.Jajoo, (supra),the Tribunal had held that an assessment can be considered as protective only when there is substantive assessment and that substantive assessment has to preceed protective assessment. In the case under consideration the AO had taxed the capital gains in the hands of the assessee as it was found that her husband had not filed return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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