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TMI Blog2019 (9) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... investment by the assessee in the case on hand is not tenable. The explanation furnished by the assessee in this regard was proper and plausible and ought to have been accepted, but was rejected without substantial reasons. The finding rendered by the ITAT-Jaipur Bench in the case of Smt. Ramawati [ 2015 (4) TMI 1277 - ITAT JAIPUR] is equally applicable to the facts of the present case and therefore the addition made by the AO being untenable and unsustainable is ordered to be deleted. - Decided in favour of assessee. - ITA No.666/Bang/2019 - - - Dated:- 12-7-2019 - SHRI JASON P BOAZ, ACCOUNTANT MEMBER Assessee by: Smt. R. Anitha, CA Revenue by: Shri. Karuppusamy S.R, Addl. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 16,80,500/- as unexplained investment in the hands of the assessee and brought the same to tax in the assessee s hands. The assessment was accordingly completed under section 143(3) of the Income Tax Act, 1961 (in short the Act ) vide order dated 31.12.2012. 2.2 Aggrieved by the order of assessment dated 31.12.2012 for Assessment Year 2010-11, the assessee carried the matter in appeal to CIT(A), Mysore. Before the CIT(A), the assessee reiterated the submissions put forth before the AO. The assessee also admittedly placed on record a copy of the Return of Income filed by her father on 31.03.2013, wherein the entire sale consideration of ₹ 93,80,500/- (i.e., ₹ 77,00,000/- + ₹ 16,80,500/-) received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent from the registered sale deed and even otherwise the income is assessable under the head Capital Gain and not under Income from other sources . Thus there is a fatal error in characterizing the addition without any basis and is contrary to the provisions of the Act. 6. The learned AO has failed to appreciate that the Appellant acted as a power of attorney holder on behalf of her father who was in judicial custody and the facts related to additions made by the learned AO had nothing to do with her individual capacity. 7. The learned AO has erred in law and on facts in making addition in the hands of the Appellant without appreciating the fact that the Appellant was holder of Power of Attorney an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her. (iii) It is settled principle that capital gains on sale of property should be considered in the hands of the actual seller and not that of the GPA holder. (iv) The father of the assessee had filed the return of income for Assessment Year 2011-12 showing the total sale consideration; including the cash component of ₹ 16,80,500/-. Merely because the assessee s father is entitled for deduction under section 54 of the Act, the return filed by him cannot be disregarded. (v) The AO has not raised any issue on assessing the sale consideration received in cheque in the hands of the father and therefore the on money / cash component also has to be assessed in the hands of the father. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed facts are that in the year under consideration the assessee was a student; a fact recorded on page 1 of the order of assessment and therefore she had no independent source of income. The fact that the sale of the said immovable property was done by the assessee s father and that the assessee is only a GPA holder is borne out from the recitals in the sale deed and is not disputed. In fact, it is seen that the AO has not raised the issue of any income from capital gain, in the assessee s hands, arising out of the sale consideration received in cheque even though the cheques amounting to ₹ 77 lakhs (₹ 75 lakhs plus ₹ 2 lakhs) have also been deposited in the assessee s bank account. Therefore, the fact that the sale co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Hon ble Apex Court in the case of CIT Vs. P. K. Noorjahan (1999) 237 ITR 570 (SC) to hold that when a person has no source of income, it cannot be presumed that the assessee has undisclosed income which is deposited in the bank account. The relevant portion of the ITAT-Jaipur Bench at paras 8 and 9 of its order is extracted hereunder:- 3.5.4 The facts of the case on hand are similar to those in the case of Smt. Ramawati (supra). In the case on hand, the assessee is a student and apparently does not have any proven source of income; which fact has not been controverted by the AO. The assessee has provided an explanation that the cash deposits represent the amounts received as part of the consideration fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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