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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 ..... a price lower than the value adopted for stamp duty valuation. 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 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 - Decided against assessee. - ITA No. 5717/DEL/2015 - - - Dated:- 8-8-2017 - Shri H. S. Sidhu, Judicial Member Assessee by : Sh. Rajeev Ahuja, CA Revenue by : Sh. T. Vasanthan, Sr. DR ORDER The Assessee has filed the Appeal against the Order dated 30.7.2015 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hter, an NRI. However, by mistake of the deed writer it was registered as the sale deed instead of a gift deed. The token amount of ₹ 2.5 lacs, was shown as consideration, but was never received. The AO not being convinced with this argument and finding that the property had been transferred through sale deed for ₹ 2.5 lacs, whose valuation for stamp duty purposes was ₹ 35,11,704/-, applying provisions of Section 50C completed the Long Term Capital Gains at ₹ 26,24,032/- as against the Long Term Capital Gains of ₹ 25,07,032/- as computed by the assessee, the difference being on account of not accepting the claim of the assessee regarding the indexed cost of improvement of ₹ 2,35,470/- in the absence of any supporting evidence. Thus, the AO has completed the assessment on total income of ₹ 34,710/- and Long Term Capital Gain of ₹ 26,24,032/- vide his order 29.10.2013 passed u/s. 143(3) of the I.T. Act, 1961. Aggrieved with the assessment order dated 29.10.2013, assessee appealed before the Ld. CIT(A) who vide his impugned order dated 30.7.2015 has dismissed the appeal of the assessee on the legal ground as well as on merit. 3. Aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Driveshafts (India) Ltd. vs. ITO (2003) 259 ITR 19 (SC) the AO is bound to furnish reasons within a reasonable time on receipt of which the notice, is entitled to file objections to issuance of notice and the AO is bound to dispose off the same by passing a speaking order which in this case has not been done. Having considered the facts of the case, I find that the assessing officer before issuance of notice u/s. 148 has issued a letter inquiring about the property transaction and whether any return of income had been filed. During the scrutiny assessment after filing of return of income in response to notice under setion 148, the assessee was given a notice under section 142(1) in which the query regarding property transaction and computation of capital gain was raised. The assessee had answered this query and submitted the details of property transaction as well as the computation of capital gains. The assessee had also submitted that the transaction was in nature of gift and not in nature of sale and therefore was not liable for Capital Gain Taxation. During the proceedings of assessment, the assessee never asked for the reasons for reopening. It is apparent from the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m her daughter. The bank account of assesse does not show any receipt from her daughter. It is contended that the AO has failed to look the said transaction in substance and has not appreciated the intention of the parties. The order passed by AO is not speaking while rejecting the contentions of the appellant. The assessee has placed reliance on the cases of Rashtriya Ispat Nigam Limited vs. Diwan Chand Ram Saran (2012) 4 SCR 1 and Addl. CIT vs. Mrs. Avtar Mohan Singh (1982) 136 ITR 645 (Del). It is also contended that the said transaction has been treated as a gift in hands of the assessee s daughters Ms. Milanjeet Kaur. It is also contended that this transaction was a gift and therefore by virtue of section 47(iii), it was no liable for capital gain taxation. The assessment order, the written submission, facts and circumstances of the case and rival contentions have been considered. I find that the transaction is clearly through sale deed. This fact is not controverted. The submission that it was a gift is not borne out from the deed of transfer. In the deed, consideration has been shown to have been received. The mode of receipt of consideration not mentioned. Since the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispose off the same by passing a speaking order which in this case has not been done. However, in this case, the AO officer before issuance of notice u/s. 148 of the I.T. Act, 1961 had issued a letter inquiring about the property transaction and whether any return of income had been filed. During the scrutiny assessment after filing of return of income in response to notice under section 148 of the Act, the assessee was given a notice under section 142(1) of the Act in which the query regarding property transaction and computation of capital gain was raised. The assessee had answered this query and submitted the details of property transaction as well as the computation of capital gains. The assessee had also submitted that the transaction was in nature of gift and not in nature of sale and therefore was not liable for Capital Gain Taxation. During the proceedings of assessment, the assessee never asked for the reasons for reopening. It is apparent from the record that the assessee was aware of the reasons of issuance of notice under section 148 of the Act and therefore at this stage, the contention that the reasons were not supplied and hence the assessment is invalid is not tena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a consideration of ₹ 2,50,000/-, whereas no consideration was received by the appellant from her daughter. However, the bank account of assesse does not show any receipt from her daughter. It is contended that the AO has failed to look the said transaction in substance and has not appreciated the intention of the parties. I am of the view that the order passed by AO is not speaking while rejecting the contentions of the assessee. The assessee has placed reliance on the cases of Rashtriya Ispat Nigam Limited vs. Diwan Chand Ram Saran (2012) 4 SCR 1 and Addl. CIT vs. Mrs. Avtar Mohan Singh (1982) 136 ITR 645 (Del). It is also contended that the said transaction has been treated as a gift in hands of the assessee s daughters Ms. Milanjeet Kaur. It is also contended that this transaction was a gift and therefore by virtue of section 47(iii), it was no liable for capital gain taxation. I find that the transaction is clearly through sale deed. This fact is not controverted. The submission that it was a gift is not borne out from the deed of transfer. In the deed, consideration has been shown to have been received. The mode of receipt of consideration not mentioned. Since the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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