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TMI Blog2020 (12) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the sale deed before the Sub-Registrar, Khurda and acted as an agent of the owner of the land. Nothing was brought on record by the ld D.R. to substantiate that the assessee has received the sale consideration, which has not been declared as income of the assessee. D.R. could not controvert that the issue under consideration is not similar to the decision rendered by Jaipur bench of ITAT in the case of Shri Gyan Chand Agarwal [ 2017 (8) TMI 557 - ITAT JAIPUR] . Hence, facts being identical, we respectfully following the same direct the AO to delete the addition with the rider that the AO is free to take action against real owner of the land Shri Pradeep Kumar Sethy as per law. - Appeal of the assessee is allowed - ITA No. 340/CTK/2019 - - - Dated:- 14-12-2020 - SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU , ACCOUNTANT MEMBER Assessee by : Shri Sunil Mishra, AR Revenue by : Shri Subhendu Dutta, DR ORDER Per C.M.Garg,JM This is an appeal filed by the assessee against the order of the CIT(A)-1, Bhubaneswar dated 28.8.2019 for the assessment year 2013-14. 2. The assessee has raised the following grounds of appeal: 1. For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hand of the appellant on account of long term capital gain when no property right has been transferred to the appellant. 9. For that on the facts and in the circumstances of the case and in law the learned CIT(A) has erred in not deleting the addition made in the hand of the appellant on account of long term capital gain when the validity of power of attorney is not under any doubt. 10. For that on the facts and in the circumstances of the case and in law the learned CIT(A) has erred in not deleting the addition made in the hand of the appellant on account of long term capital gain when the appellant has duly discharged his onus and the sale consideration has not been appropriated by him in any manner. 11. For that on the facts and in the circumstances of the case and in law the learned CIT(A) has erred in not deleting the addition made in the hand of the appellant on account of long term capital gain inasmuch as the AO has passed the assessment order without following the principles of natural justice. 12. The appellant craves leave to add, alter, delete or modify any grounds of appeal at the time of hearing. 3. Facts in brief are that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld CIT(A) upheld the reopening of assessment and consequently, confirmed the addition of ₹ 81,71,835/-. 5. Hence, the assessee is in appeal before us. 6. Ld A.R. of the assessee reiterated the submissions made in the grounds of appeal and further submitted that before reopening of assessment, no reasons were recorded and hence, same is liable to be quashed. On merits, further, he submitted that the assessee has acted merely as the power of attorney holder of the actual owner of the property and no consideration was received by him. Ld A.R. of the assessee relied on the decision of ITAT Jaipur Benches in the case of Shri Gyan Chand Agarwal vs ACIT in ITA No.266/JP/2017 AY: 2010-2011 order dated 10.7.2017, wherein, on similar facts, the Tribunal has directed to delete the addition with the liberty to take action against real owners as per law. Hence, his prayer was that this issue is covered in favour of the assessee. Ld A.R. also relied on the decision of Hon ble Madras High Court in the case of CIT vs C.Sugumaran in Tax Appeal No.840 of 2014 and also the decision of ITAT Jaipur in the case of Suraj Narain vs ITO in ITA No.1043/Jp/2011 in support of his claim. 7. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it clear that the transaction, which has the effect of transferring or enabling the enjoyment of immovable property alone would come within the ambit of transfer. The circular reads something more into the provisions. We are not inclined to accept such an interpretation. The circular also states that the legal ownership would continue with the transferor, but the property rights it is transferred by way of power of. attorney would come within the ambit of sub-clause (vi) of Section 2(47) of the Income Tax Act. Assuming we accept the intention behind the circular, then there should be an element of transfer or enabling enjoying of property right a stated in paragraph 11.2 of the circular by the power of attorney holder. 13. We find no such recital in the power of attorney as extracted by the Tribunal and referred to by us. On the contrary, the terms of the power of attorney clearly show that property rights has not been transferred to the power of attorney holder and there is also no provision for enabling enjoyment. It is not the case of the Department that the power of attorney is sham. If they accept the power of attorney is valid, then the plea of capital gains that the ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had only a delegated right. This right was not independent right of the appellant. There is also no reliable material or documentary evidence on record to show that the said Shri Surja Narain, the appellant before s had purchased the aforesaid land from any of its earlier owners before transferring the same in the name of Smt. Radha Devi Khatoria through sale deed dated 19/12/2007 as a power of attorney holder. It is a different matter that the sake consideration received by him on behalf of the previous owners was not paid or returned to them immediately after execution of sale deed or even up to the time of enquiries made by the AO. The appellant, thus, being neither owner nor a deemed owner of the said capital asset, the said capital asset cannot be taken as property o the appellant. The sale consideration of the aforesaid land, therefore, could not be a subject matter of transfer of his own capital asset. The Income Tax Department has also not assessed him as representatives assessee or an agent of the said shri Bharat Singh and Shri Vijay Pal Singh and as such question of making assessment of income from capital gains by application of provisions of Section 50-C of the Act ado ..... X X X X Extracts X X X X X X X X Extracts X X X X
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