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TMI Blog2019 (2) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... minor children will not be taxed in the hand of appellant and remaining 7,00,000/- which was paid to divorced wife will be taxed in the hands of the appellant. In other words, appellant shall be taxed for ₹ 85,00,000/- not for ₹ 99,00,000/-. In terms of above, we partly allow the appeal of the assessee. - ITA. No: 793/AHD/2015 - - - Dated:- 28-9-2018 - Shri Mahavir Prasad, Judicial Member And Shri Waseem Ahmed, Accountant Member For the Appellant : Shri Biren Shah, AR For the Respondent : Shri Pravin Kumar, Sr. D.R. ORDER PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. This appeal by the Assessee is directed against the order of the Ld. CIT(A)-5, Ahmedabad dated 12.02.2015 pertaining to A.Y. 2010-11 and following grounds have been taken: 1. In law and in the facts and circumstances of the appellant's case, the learned CIT(A) has grossly erred in dismissing Ground No. 1 of the appellant's appeal before him challenging the very validity of the assessment order impugned before him. 2. In law and in the facts and circumstances of the appellant's case, the learned CIT(A) has grossly erred in upholding the addition of ₹ 19,56,24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of the decision of the ITAT, Delhi Bench in Haryana Warehousing Corporation v. DCIT [252 ITR (AT.) 34] was attracted and the levy deserved to be cancelled. 5. The appellant craves leave to add, amend and/or alter the ground or grounds of appeal either before or at the time of hearing of the appeal. 2. The facts of the case are that as per information it is seen that the assessee sold immovable property valued at ₹ 99,00,000/-. Accordingly, during the course of assessment proceedings, the assessee was requested to furnish copy of Sale Deed, Purchase Deed, calculation of capital gain, investment details, etc. In response, the assessee vide his letter dated 06.11.2012 submitted copy of Sale Deed, Purchase Deed, Valuation Report and copies of investments made during the year under consideration. 3. On verification of the sale deed, it is seen that the assessee sold the property at ₹ 99,00,000/- whereas the assessee has offered ₹ 78,00,000/- in the Return of income. Therefore, a show cause notice was issued to the assessee on 26.12.2012 and duly served upon the assessee on 26.12.2012. 4. I have carefully considered the submission of the assessee. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that there is no share or part in the sold property of the wife of the assessee or his children as the name of assessee's wife and his children were included in the Deed of Conveyance as Confirming Party of the Third part vide Page No.3 of Deed of Conveyance. The relevant portion of the same is reproduced below: AND (1) DEEPIKA MANUAL UPADHYAYAGE 40 YEARS, (2) DEEPIKA MANUAL UPADHYAY AGE 40 YEARS on behalf of Minor NAMAN DHARMENDRA JOSHI, aged 12 years and (3) PUJA DHARMENDRA JOSHI aged, 18 YEARS, all residing at C/o. Manila! B. Upadhyay, Mahiyal Ta. Talod, Dist. Mehsana, at present residing at 163, Patel Vas, Opp: Swaminarayan Mandir, Kocharab, Ellisbridge, Ahmedabad as CONFIRMING PARTIES of the Third Part. Hence, in view of above, the whole receipt of sale consideration is assessable only in the hands of the assessee. (ii) The assessee has stated in the said Submission dtd. 03.01.2013 that it was mutually decided between the assessee and her former wife that whole family will have rights over the property and whenever the said capital asset will be sold, the rights of the wife and future sons will be compensated accordingly. However, it is seen that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/- in which hands rests with the assessee, which the assessee has not discharged. Since the assessee -was the sole owner in the sold property and there was no share or part in the said property of any one as evident from the Deed of Conveyance and as the assessee has not discharged his onus the prove the assessibility of ₹ 21,00,000/- in the hands of her former wife and children, therefore, I consider the sale receipt of ₹ 99,00,000/- under the head Income from Capital Gain which was less shown by the assessee by ₹ 21,00,000/- as stated above and after deducting indexed cost of acquisition ₹ 29,43,760/- and further exemption claimed u/s.54EC and 54F of the IT. Act at ₹ 35,00,000/- and ₹ 15,00,000/-; respectively, add ₹ 19,56,240/- to the total income of the assessee as Long Term Capital Gain arisen out of sale of property. 5. Against the said order, assessee preferred first statutory appeal before the ld. CIT(A) who dismissed the appeal of the appellant with following observation that the appellant was the only owner of the property that the appellant was the only owner of the property and the sharing of the sale consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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