9911796707
TMI Blog2021 (5) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... at land-owners would only receive the amount mentioned in the sale deed. The AO has not recorded statement of any of the land owners. He was given all the details. He has recorded the statement of one of the purchasers in the first round; but that is not a relevant evidence; that evidence can be taken for the determination of quantum, but who has received that quantum, that evidence cannot be used. A perusal of the assessment order would indicate that the ld.AO behaved in a very illogical manner by observing that if the land owners are not paid the capital gain on-money, then the assessee should pay. The law contemplates that the AO has to first determine in whose hand income has to be assessed; who are the rightful owner. The assessee b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2004-05 respectively on the ground that the assessee has received the above amount as onmoney on sale of land. 3. The facts on all vital points are verbatim same, more so the discussions in both the assessment orders are also identical. Therefore for the facility of reference, we take the facts from the Asstt.Year 2003-04. 4. Brief facts of the case are that in both the assessment years, originally the assessment orders were passed under section 143(3) read with section 147 of the Income Tax Act, 1961 on 28.12.2007 whereby the income of the assessee was determined at ₹ 29,86,640/- and ₹ 50,93,470/- as against returned income of ₹ 47,120/- and ₹ 48,140/- in the Asstt.Years 2003-04 and 2004-05 respectively. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through the orders of authorities below. We find that this addition was confirmed by Ld. CIT(A) on this basis that the matter is pending finalization at the assessment stage itself in the case of land owners. This addition in the hands of the present assessee is confirmed on a protective basis as per order of Ld. CIT(A) dated 14-12-2007. Hence, we feel that by now, the issue first have been finalized in the hands of the land owners but the same is not made available before us. Hence in the facts of the present case, we feel that the matter should go back to the file of AO for fresh decision and hence, we set aside the order of Ld. CIT(A) on this issue and restore the matter back to the file of AO for fresh decision. The AO should find ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ! Co., Chartered Accountants attended and made written submissions. Some of the main/relevant contentions are reproduced as under; Your assessee was a PA holder of the land holders and there was having no direct or indirect benefit to him - All the owners of the land has been identified and from the working of the capital gains it reveals that there is no tax liabilities to 12 nos. of land holders. Your honour can very well verify that Shri Bankimbhai D. Patel was only acted as POA of all the co-owners of the land and the sale consideration were received by the owner of the land. Ail the land owners have been identified and from the working of the capital gains, it reveals that there is no tax liability to 12 nos. of land holders. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticulars of income. 8. Subject to above remarks and on the basis of material available on records, the total income of the assessee for A.Y, 2003-04 is computed as under: Total income as per return of income : ₹ 47,120 Add: Addition on account of unrecorded and Undisclosed income as discussed above ; ₹ 29,39,524 Total Income : ₹ 29,86,644 Rounded off to : ₹ 29,86,640 8. Findings in the Asstt.Year 2004-05 are also identical. On the strength of the above reasoning, the ld.AO has made addition which stands confirmed at the end of the ld.CIT(A). 9. With the assistance of the ld.representatives, we have gone through the record carefully. A perusal of the finding of the ld.Revenue au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder, cannot be treated as rightful owner of the income, which has arisen on sale of a particular property. His action was only in the representative capacity. We could appreciate the stand of the AO if he was able to bring on record the terms of agreement between the assessee as well as land owners specifying the distribution of amount between the assessee in the capacity as power attorney holder vis- -vis the actual owner. No such steps were taken by the AO; more so when specifically directed by the Tribunal in the first round of litigation. Taking into consideration all these aspects, we are of the view that there is no justification for sustaining addition in both the assessment years in the hands of the assessee. Therefore, we allow bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
