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TMI Blog2021 (4) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of Smt Tripta Nurpuri and not in hands of the assessee. AO has failed to conduct any enquiry and bring any material or fact to establish that the assessee has initially acquired the property in question at the time of Power of Attorney dated 3.1.2008 and subsequently sold the same vide sale deed dated 23.09.2009 in the capacity and in her right as an owner of the property. While computing capital gains in the hands of the assessee, the AO has allowed the cost of acquisition of ₹ 289,582 which was actually the cost of acquisition paid by Smt Tripta Nurpuri at the time of initial allotment way back in year 1998 which cannot be inferred as cost of acquisition in hands of the assessee as on the date of execution of power of attorney on 3.1.2008. The same thus shows that the AO himself was not clear as to the taxability of the transaction in the hands of the assessee in absence of requisite enquiry and examination. Thus the addition made by the AO in the hands of the assessee is not warranted and the same is directed to be deleted. - Decided in favour of assessee. - ITA. No. 815/JP/2019 - - - Dated:- 5-4-2021 - Shri Sandeep Gosain, JM And Shri Vikram Singh Yadav, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/123 NEB, Housing Board Rajasthan, Alwar received from Smt. Devendra Kaur her sister along with sale deed executed by Smt. Devendra Kaur as General power Attorney hold of Smt. Tripta Nurpuri, Jalandhar was submitted. The A.O however made the addition of ₹ 9,22,312/- in the hands of the assessee with the following observation:- In this case Smt. Devendra Kaur W/o Sh. Man Mohan Singh has sold Plot No. 4/123, NEB Vistar, Tuleda Housing Board, Scheme, Alwar at ₹ 6,00,000/ vide sale deed dated 23.09.2009 to Sh. Mahesh Chand Sharma S/o Late Sh. Murlidhar Sharma , 319, Arya Nagar Scheme No.1, Alwar which was valued by the sub Registrar at ₹ 14,75,230 on which liability of capital gain arises. The A/R of the assessee was asked to prove the genuineness of sale consideration of ₹ 6,00,000/- received by Smt. Tripta Nurpuri and also produce Smt. Tripta Nurpuri for examination with all evidences ( copy of Income tax Return and bank account statement for A.Y. 2010-11) which proves that she has received ₹ 6,00,000/- from Smt. Devendra Kaur and paid long term capital gain tax on above sale transaction but the assessee failed to produce Smt. Tripta Nurpuri f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house property, even as per view taken by the AO, where the indexed cost of ₹ 5,52,918/- is reduced from the sale consideration of ₹ 6,00,000/-, the resultant gain works out to only ₹ 47,082/- which is well below the threshold of total income chargeable to tax in the hands of the assessee. 7. It was submitted that the ld. CIT(A) ignored the submission although forming part at page -2 of the appellate order, which is reproduced as under:- In this case notice u/s 148 of the I.T. Act, 1961 was issued on 29.03.2017 through registered post which was received after 31.03.2018. Subsequently notice u/s 142(1) was issued, in compliance to above return of income declaring total income of ₹ 340/- was filed along with documents sought and attended assessment proceedings time to time. During the course of assessment proceedings the ld. A.O. informed that the assessee sold out a residential house to Sh. Mahesh chand Sharma as per sale deed dated 23.09.2009 for consideration of ₹ 6,00,000/-. While registration the stamp value was adopted ₹ 14,75,230/-. During the course of assessment proceedings the ld. A.O brought to notice that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after taking into consideration the indexed cost of acquisition. Regarding the contention of the ld AR that the residential house belongs to Smt Tripta Nurpuri, the sister of the assessee, it was submitted that during the course of assessment proceedings, the assessee was asked to prove the genuineness of sale consideration of ₹ 6,00,000/- received by Smt. Tripta Nurpuri and also produce Smt. Tripta Nurpuri for examination who was not produced and hence the liability of capital gain clearly arises in the hands of the assessee who has received the sale consideration and which has been rightly confirmed by the ld CIT(A). She accordingly relied on the finding of the lower authorities. 11. We have heard the rival contentions and perused the material available on record. The transaction which is subject matter of present dispute is gains arising on sale of residential house No. 4/123, NEB Vistar, Tuleda Housing Board Scheme, Alwar in terms of registered conveyance deed dated 23.09.2009. What is therefore relevant to determine is who had purchased the said property initially and has the ownership rights over such property; at what cost the said property has been purchased and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tripta Nurpuri that she had sold the property and had received the sale consideration from the assessee and thus, has discharged the primary onus cast on her and where the AO still harbours any doubt, it was incumbent upon the AO to conduct further enquiry by issuing summons and calling Smt Tripta Nurpuri for necessary examination which the AO has failed in the instant case. Therefore, basis material available on record, it cannot be said that the assessee has sold the property in capacity as owner of the property rather the same has been sold in the capacity of power of attorney holder and on behalf of Smt Tripta Nurpuri and any capital gain tax liability on such transaction arises in hands of Smt Tripta Nurpuri and not in hands of the assessee. We find that similar issue had arisen in case of Shri Gyan Chand Saini vs ITO (ITA No. 87/JP/2019 dated 25.11.2019), the Coordinate Bench has held as under: 5. We have considered the rival submissions as well as the relevant material on record. There is no dispute that during the year under consideration the assessee has sold the land in question vide sale deed dated 14.08.2007 as a Power of Attorney holder of Hanuman Sahai, Chaut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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