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TMI Blog2019 (12) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... ) erred in law and on facts in holding that there was transfer of land and/or building in term of Section 2(47) of the Income Tax Act, 1961 by Ms. Upma Shukla i.e. wife of the assesse to the assesse during the assessment year 2009-2010. Without prejudice, even if it is assumed that there was transfer of land by the assesse, the Ld. CIT(A) failed to appreciate that transfer of land does not result in transfer of superstructure/building. 2.3. That the Ld. CIT(A) erred on facts and in law in holding that investment of Rs. 7,50,000/-(10,00,000 minus 2,50,000) has been made by the assesse in the land during the assessment year 2009-2010 despite applying Section 50C of the Act to determine full value of consideration. 2.4. That the Ld. CIT(A) erred on facts and in law in holding that investment of Rs. 500,000/- has been made by the assesse in the building during the assessment year 2009-2010 merely on the basis of conjectures and surmise. 2.5. That the Ld. CIT (A) erred in law in reiving upon the incorrect entry made by the assesse in the books of accounts." 2. The A.O. passed the Order in the name of Shri Vikas Shukla who is expired during the course of appellate proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal of assessee's wife and held that his wife was chargeable to long term capital gains which is to be calculated by deducting from the amount of Rs. 10 lakhs in indexed cost of acquisition of Rs. 2,50,000/- since 1996 in the year of acquisition. It is also noted that he has held that assessee's wife is chargeable to short term capital gain of Rs. 5 lakhs on account of sale of factory building. The Ld. CIT(A) following the detailed reasoning given in the case of wife of assessee, granted part relief to the assessee. 5. I have heard the Learned Representative of both the parties. According to the Office, the appeal is time barred by 50 days. 6. Learned Counsel for the Assessee submitted that ITAT C-Bench in the case of Shri Upma Shukla in ITA.No.4218/Del./2015 for A.Y. 2009-2010 vide Order Dated 14.10.2019 condoned the delay of 50 days as well as allowed the appeal of assessee. The Order is reproduced as under : "IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: 'C' NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA No. 4218/Del/2015 Assessment Year: 2009-10 Upma Shukla Proprietor Troubleshooters, Upma Shukla, House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that assessee filed return of income of Rs. 4,34,060/- on 31.03.2010 under the head "Income from other sources". The AO considered the issue of long term capital gains and short term capital gains and passed the order u/s 143(3) making the following additions: i. Long Term Capital Gains Rs. 9,90,000/- ii. Short Term Capital Gains Rs. 10,00,000/- 5.1 As regards additions on account of capital gains, the AO observed that the assessee sold land and claimed to have received only Rs. 2,50,000/- as consideration. However, as per registered deed dated 23.07.2008, the value adopted for the purpose of payment of stamp duty by the State Government, in respect of the said transfer was Rs. 10 lakhs. The AO applied provisions of section 50C of the I.T. Act and made an addition of Rs. 9,90,000/- on this issue. In addition, the AO formed that the assessee had also sold factory building on the said land which was not appearing in the registered sale deed. Since, the assessee had transferred land and building together, the AO held that short term capital gain accrued to the assessee on account of transfer of the building was Rs. 10 lakhs which was also added to the income of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no intention to evade any taxes. The Ld. AO has taxed Rs. 10,00,000/- as short term capital gains in the hand of the appellant stating that the land in question was a vacant land and that the factory and building was constructed on it by the appellant. It being a depreciable asset, STCG was computed by the Ld. AO at Rs. 10,00,000/-. Sir, in this respect I would like to state that here the land in question is the same one in respect of which the appellant was the holder of the registered GPA. Thus, this land as already substantiated above was not the property of the appellant. Hence, as there was no question of transfer/sale of building by the appellant, the ground for taxing the STCG also stands nullified." 7. The Ld. CIT(A) called for the remand report of the AO which is also reproduced in the appellate order. The same reads as under: "That as per the facts available on record the assessee had filed GPA of Sh. Umed Singh in her favour and copy of sale deed between the assessee as GPA and her husband Sh. Vikas Shukla during the assessment proceedings. Now the assessee has filed an 'IkrarNama' (Agreement to sale) dated 03.11.1995 between Sh. Umed Singh and Sh. Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of CIT vs. C. Sugumaran dated 03.11.2014 in Tax Appeal No. 840/2014 and order of ITAT, Jaipur Bench in the case of Gyan Chand Agarwal vs. Addl. CIT dated 10.07.2017 ITA No. 266/JP/2017 in which transaction conducted through General Power Attorney holder was not considered as transfer of property so as to attract capital gains. 11. On the other hand, Ld. DR relied upon the orders of the authorities below and submitted that assessee has shown the amount in question in her capital amount which was received through registered sale deed. Therefore, both the additions are justified. 12. We have considered the rival submissions. The assessee filed copy of the 'Ikrar Nama' dated 03.11.1995 which is executed by Shri Umed Singh owner of the property in question in favour of Shri Vikas Shukla for a sum of Rs. 2,50,000/-. It is signed by both the parties as well as witnesses. Shri Umed Singh has also executed affidavit in favour of Shri Vikas Shukla confirming that he has sold the property in question to assessee and executed General Power of Attorney in favour of the assessee. The receipt is also executed by Shri Umed Singh in favour of Shri Vikas Shukla for sale of the above property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r husband for consideration. It is well settled law that entries in the books or capital account are not determinative of earning of income. It depends upon facts of the case. The real income only could be taxed as per law. Considering the totality of the facts and circumstances and the documents on record, it is clearly proved that Sh. Umed Singh has entered into an agreement to sale with Sh. Vikas Shukla for sale of property for a sum of Rs. 2,50,000/- which Sh. Vikas Shukla paid to Sh. Umed Singh. Documents to that effect were executed. The General Power of Attorney was executed in favour of the assessee so that assessee could registered the sale deed at appropriate time on behalf of Sh. Umed Singh in favour of her husband. Therefore, there is no transfer of capital asset from the side of the assessee, so as to attract provisions of long term capital gains and short term capital gains. The decisions relied upon by the Ld. Counsel for assessee squarely apply to the facts and circumstances of the case. There was no justification for authorities below to made addition in the hands of assessee on account of long term capital gains and short term capital gains. In this view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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