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TMI Blog2017 (8) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case and in law, Both the Ld. CIT(A) and the Ld. AO erred in law and on the facts of the case in treating the gift of the immovable property by the appellant to her daughter as sale and computing the long term capital gain by applying Gains to the income of the Appellant, in the year under consideration section 5OC of the Act, which is bad in law and not called for. (b) That on the facts and circumstances of the case and in law, the learned AO erred in adding a sum of Rs. 26,24,032/- as Long Term Capital which is bad in law and not called for. (Ground No.3) That the appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before or at the time of hearing of this appeal." 2. The brief facts of the case are that having gathered the information that the Assessee had sold a property for Rs. 32,76,300/- on 14.2.2008. During the year under consideration, the notice u/s. 148 of the Income Tax Act, 1961 (hereinafter referred as the Act) was issued on 20.3.2013 as the assessee had not filed the return of income. In response to this notice, the return of income was filed at Rs. 34,710/- on 13.8.2013. Subsequently, notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of Paper Book filed before the CIT(A), Ghaziabad which is copy of written submissions, copy of the sale deed dated 14.2.2008 and coy of purchase deed; copy of AIR querty letter dated 21.1.2013 and its submission; copy of notice under section 148 of the Income Tax Act, 1961; Copy of letter filing income tax return in response to notice u/s. 148 of the Act alongwith copy of income tax return; copy of bank statement; copy of documents filed related to Ms. Milanjeet Kaur Mangat before the AO- notice of AIR query including submissions; copy of following case laws i.e. Addl. CIT, Delhi-I vs. Mrs. Avtar Mohan Singh 136 ITR 645 and Rashtriya Ispat Nigam Limited vs. Diwan Chand Ram Saran 4SCR1. 5. On the contrary, Ld. DR relied upon the orders of the authorities below. 5.1 I have heard both the parties and perused the records and gone through the orders of the authorities below, especially the contention raised in the grounds of appeal and the Paper Book filed by the assessee, as aforesaid. I find that Ld. CIT(A) has elaborately discussed and adjudicated the issues in dispute vide para no. 6.2 to 6.3 at page no. 3 to 5 of his impugned order. For the sake of convenience, I am reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e objections to issuance of notice and the AO is bound to dispose off the same by passing a speaking order." In this case I find that the reasons have not been sought by the assessee at assessment stage. After issuance of notice u/s. 148, the assessee has filed return of income and participated in assessment proceedings and the assessment has been completed after taking into account the submission of assessee. Had the assessee sought the reasons and had AO denied the same, the matter would have been different. Therefore, the above judgment of Hon'ble Supreme Court does not apply to facts of the present case. The contentions of the assessee are rejected. Ground of appeal 2 is dismissed." "6.3 In Grounds of Appeal 3.1 and 3.2 the assessee has contended that the impugned property had been transferred to her daughter as a gift and therefore charging Long Term Capital Gains applying provisions of Section 50C is bad in law. In its written submission on behalf of the assessee appellant, the Ld. AR of the assessee has contended that the intention of the assessee was to transfer the property as a gift to her daughter and not to earn any capital gain and avoid taxes thereon. The intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the contention regarding it being a gift is not tenable. The case of Mrs. Avtar Mohan Singh (Sura) also does not help the case of assessee because section 47(iii) comes to play only in cases of transfer through gift or will or an irrevocable trust. Transfer in the present case is not through these modes. The contention that the transaction has been held to be gift in the hands of the daughter, the transferee, and therefore it should be held so in the case of the assessee also is not tenable because in case of the daughter the consideration as per stamp duty valuation is not taxable as per proviso to section 56(2)(vii). However, the provisions of capital gains taxation and the income from other sources are independent of each other. The income in the hands of the daughter having been held to be exempt, does not absolve the assesee from the capital gain liability. The contention of appellant are therefore rejected and the grounds of the appeal 3.1 and 3.2 are dismissed." 5.2 After perusing the aforesaid finding of the ld. CIT(A), with regard to effective ground no. 2 relating to jurisdiction is concerned, I find that the assessee has contended that in view of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice u/s. 148 of the Act, the assessee has filed return of income and participated in assessment proceedings and the assessment has been completed after taking into account the submission of assessee. Had the assessee sought the reasons and had AO denied the same, the matter would have been different. Therefore, the above judgment of Hon'ble Supreme Court does not apply to facts of the present case. In view of the above, the contentions of the assessee were rightly rejected by the Ld. CIT(A), which does not need any interference on my part, hence, I uphold the order of the Ld. CIT(A) on the issue in dispute and reject the issue in dispute raised by the assessee. 5.3 Apropos ground no. 3 relating to computing the long term capital gain and added back the same as Long Term Capital Gain is concerned, I find that assessee has contended that the impugned property had been transferred to her daughter as a gift and therefore charging Long Term Capital Gains applying provisions of Section 50C is bad in law. In its written submission on behalf of the assessee, the Ld. AR of the assessee has contended that the intention of the assessee was to transfer the property as a gift to her daug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion regarding it being a gift is not tenable. The case of Mrs. Avtar Mohan Singh (Sura) also does not help the case of assessee because section 47(iii) comes to play only in cases of transfer through gift or will or an irrevocable trust. Transfer in the present case is not through these modes. I further note that the transaction has been held to be gift in the hands of the daughter, the transferee, and therefore it should be held so in the case of the assessee also is not tenable because in case of the daughter the consideration as per stamp duty valuation is not taxable as per proviso to section 56(2)(vii). However, the provisions of capital gains taxation and the income from other sources are independent of each other. The income in the hands of the daughter having been held to be exempt, does not absolve the assesee from the capital gain liability. In view of the above, the contention of assessee was rightly been rejected by the Ld. CIT(A), which does not need any interference on my part, hence, I uphold the order of the Ld. CIT(A) on the issue in dispute and reject the issue in dispute raised by the assessee. 6. In the result, Assessee's appeal is dismissed. Order pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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