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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 ..... e has purchased the property through the documents in the year 1996. Therefore, the issue shall have to be re-examined in the light of the Order in the case of Smt. Upma Shukla. The matter in issue is restored to the file of A.O. with a direction to re-decide the matter in issue as per Law - appeal of Assessee allowed for statistical purposes. - ITA.No.4217/Del./2015 (Assessment Year 2009-2010) - - - Dated:- 14-11-2019 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER For Assessee: Shri Kanishk Rana, Advocate For Revenue: Shri Pradeep Singh Gautam, Sr. D.R. ORDER This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-1, Gurgaon, Dated 10.02.2015, for the A.Y. 2009-2010 on the following grounds : 1. That the order passed by the Ld. CIT(A) is bad in law to the extent it confirms the additions made by the Assessing Officer on account of unexplained investment. 2. That the Ld. CIT(A) erred on facts and in law in partially confirming the addition of ₹ 17,50,000/- made by the Assessing officer holding the same to be unexplained investment in land and bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistrar is estimated at ₹ 10,00,000/-. Thus, the fair market value of the land and building comes to ₹ 20 lakhs as against ₹ 2,50,000/- declared in the Title Deed. Since the assessee has failed to give any explanation in this regard, therefore, ₹ 17,50,000/- was considered as unexplained investment and addition of the same was accordingly made. 4. The assessee submitted before the Ld. CIT(A) that land on which investment was made by assessee was sold to him on 30.11.1996 by one Mr. Umed Singh who is an Army Officer. But, the Deed could not be registered as there was a restriction on the registry by the Sub-Registrar, Gurgaon for control of the Title of the Property. However, buyers and sellers had mutually decided to create GPA in favour of purchaser s wife i.e., Smt. Upma Shukla (Wife of the Assessee), was to act as the registered GPA on behalf of Shri Umed Singh. The said land was later registered in assessee s name on 23.07.2008 after gap of 12 years, whereas, in actual facts, the land was in the custody of the assessee Shri Vikas Shukla right from the year 1996 without transfer took place. Further, the same was being utilised by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of Hearing 09.10.2019 Date of Pronouncement 14.10.2019 ORDER PER SHRI BHAVNESH SAINI, J.M. This appeal by the assessee has been directed against the order of Ld. CIT(Appeals)-1, Gurgaon dated 10.02.2015 for AY 2009-10, challenging the additions of ₹ 9,90,000/- on account of long term capital gains arising from transfer of land and addition of ₹ 10 lakhs on account of short term capital gains arising from transfer of building. 2. We have heard Ld. Representatives of both the parties and perused the material on record. Earlier appeal was dismissed for default which was restored by allowing Miscellaneous Application of the assessee. 3. The appeal is time barred by 50 days. The assessee has filed application for condonation of delay explaining therein that impugned order was received on 11.03.2015. The husband of the assessee Shri Vikas Shukla was suffering from mouth cancer and required continuous attention and treatment and was admitted in hospital on 20.04.2014, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs which was also added to the income of the assessee. 6. The assessee challenged both the additions before Ld. CIT(A). The written submission of the assessee is reproduced as under: Sir, the Ld. AO had erred on facts while making an addition of ₹ 9,90,000/- as Long Term Capital Gains on account of sale of plot. He has completely ignored the fact that the appellant was not the owner of the said land but merely a holder of registered GPA. The said land was sold on 30.11.1996 at a consideration of ₹ 2,50,000/- by Sh. Umed Singh to Shri Vikas Shukla (Husband of the assessee). At the time of sale, the same could not be registered in the name of Shri Vikas Shukla as there was a restriction on the registry by the Sub Registrar, Gurgaon. Sh. Umed Singh was an Officer with the Indian Army who due to his postings in different parts could not be present in Gurgaon at all times. Hence, to smoothen the process, and to gain control on the title of the property, it was mutually decided that the appellant Mrs. Umpa Shukla (Wife of Shri Vikas Shukla) would act as a registered GPA and an authorized legal agent who woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. Vikas Shukla, husband of the assessee to prove the ownership of the property. The assessee also filed a receipt of ₹ 2,50,000/- dated 07.11.1996 vide which her husband Sh. Vikas Shukla had paid this amount to Sh. Umed Singh for the same land. Since the assessee had been provided sufficient opportunity to produce the evidence during the assessment proceedings, any such evidence at the appellate stage may kindly not be admitted. Moreover, the Ikrar Nama is not a registered document, therefore, its authenticity is doubtful. Further, in the capital account of the assessee an addition of ₹ 2,50,000/- has been shown on account of sale and land building. It also shows that property in question belongs to assessee. 8. It may also be noted here that the assessee at the appellate stage made a request for admission of additional evidences which Ld. CIT(A) has allowed and admitted the additional evidences. 9. Ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 for a sum of ₹ 2,50,000/-. Shri Umed Singh has also executed Registered General Power of Attorney in favour of assessee and given all the powers as a General Attorney to look into the property or to execute Registry or to purchase stamps or claim any refund etc. This General Power of Attorney is not subjected to any consideration. No amount has been paid by the assessee to Shri Umed Singh through this Registered General Power of Attorney. Therefore, General Power of Attorney executed by Shri Umed Singh owner of the property was without any consideration. The assessee later on as General Power of Attorney holder of owner of the property Shri Umed Singh executed sale deed in question in favour of her husband i.e. Shri Vikas Shukla in which it is specifically mentioned that sale consideration is earlier paid of ₹ 2,50,000/-, it means Shri Vikas S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract 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 matter, we set aside the orders of the authorities below and delete both the additions. 13. In the result, the appeal is allowed. 7. After considering the rival submissions, I am of the view that the matter requires reconsideration at the level of the A.O. In the case of Smt. Upma Shukla also on the same reasoning delay in filing of the appeal for 50 days was condoned because the assessee Shri Vikas Shukla was suffering from cancer. The same reasoning is given in the present appeal. Therefore, following the same reasoning in the case of Smt. Upma Shukla (supra), I condone the delay in filing the appeal. Since in the case of Smt. Upma Shukla she has acted as GPA holder of the original owner Shri Umed Singh, it was, therefore, held that no long term capital gains is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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