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TMI Blog2021 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee for statistical purposes. Addition of long term capital gains - As per Assessee when the property was purchased by the wife of the assessee and sold by the wife of the assessee, no addition on account of long term capital gains can be made in the hands of the assessee and the lower authorities have not properly appreciated the facts of the case - HELD THAT:- We deem it proper to restore the issue to the file of A.O. for adjudicating the issue afresh as per fact and Law, after giving due opportunity of being heard to the assessee - Decided in favour of assessee for statistical purposes. - ITA.No.1619/Del./2020 (Assessment Year 2011-2012) - - - Dated:- 29-10-2021 - SHRI R.K. PANDA, ACCOUNTANT MEMBER For Assessee : Shri Rakesh Gupta, And Shri Somil Agarwal, Advocates. For Revenue : Sh. R.K. Gupta, Sr. DR ORDER This appeal filed by the Assessee is directed against the Order dated 11.08.2020 of the Ld. CIT(A), Ghaziabad, relating to the A.Y. 2011-2012. 2. Facts of the case, in brief, are that the assessee is an individual. In this case information was received that the assessee has deposited cash of ₹ 26,04,000/- in his Saving bank Accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,88,372/- ₹ 8,77,722/- Long Term Capital Gain - ₹ 11,47,278 /- Less: Deduction u/s 54B Purchase of Plot and construction cost (F.Y. 10-11)) ₹ 12,10,000/- Taxable Gain - NIL 2.3. The A.O. asked the assessee to furnish the cost of improvement of the land and furnish the evidence of construction of boundary wall such as investment made and detail of the contractor and proof of material purchased for such boundary wall. The assessee simply furnished a plain paper agreement with one Shri Rajneesh S/o Sh. Brahmpal, Village-Painga. The A.O. did not consider the same as concrete evidence of construction of boundary wall. Rejecting the various explanations given by the assessee, the A.O. determined the long term capital gains at ₹ 14,35,651/- after allowing the indexed cost of acquisition at ₹ 5,89,349/- from sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during assessment proceedings the appellant himself has taken the onus of providing the explanation of source of cash deposit in his bank account. There was not a single time mention of his wife. The reply and the claim of stated sources have been furnished by the appellant himself and never disclosed the sources are the income of his wife. In his ITR and computation of income furnished during assessment proceedings the appellant claimed his income as capital gain from the sale proceeds of the land. Thus, it is clear that he is contradicting himself and has raised frivolous additional ground before undersigned. Hence, this additional ground of appeal is rejected. 3. Aggrieved with such order of the Ld. CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds : 1. That having regard to the facts and circumstances of the case, the assumption of jurisdiction in reopening the impugned assessment and passing the impugned reassessment order u/s 147/143(3), is bad in law and against the facts and circumstances of the case and more so when statutory conditions as stipulated u/s 147 to 151 have not been complied with. 2. That in any case and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t given by his son Mr. Tinku Chaudhary after sale of his buffalows, cow and popular trees. Further the A.O. without examining the son of the assessee simply rejected the claim by merely stating that no evidence whatsoever was filed by the assessee. He submitted that given an opportunity the assessee is willing to produce his son before the A.O. for his examination and A.O. may accordingly determine the source of deposit. 5.1. So far as the computation of long term capital gains is concerned, the Learned Counsel for the Assessee submitted that when the asset sold belongs to the wife of the assessee, the addition cannot be made in the hands of the assessee. He submitted that the assessee by mistake has treated the property as his own for the purpose of computation of capital gain. He submitted that there is no estoppels in Law as held by the Hon ble Delhi High Court in the case of CIT vs., Bharat General Reinsurance Co. Limited [1971] 81 ITR 303 [Del.]. He submitted that the lower authorities have not decided the issue in proper perspective and, therefore, he has no objection if the matter is restored to the file of A.O. for fresh adjudication. 6. The Ld. D.R. on the other hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asked the assessee to produce his son for examination nor the assessee had volunteered to produce him before the A.O. Now that the Learned Counsel for the Assessee is willing to produce Mr. Tinku Chaudhary before the A.O. for his examination and substantiate the cash payment of ₹ 5,75,000/-, therefore, considering the totality of the facts and circumstances of the case and in the interest of justice, I deem it proper to restore the issue relating to addition of ₹ 5,75,000/- to the file of A.O. with a direction to give an opportunity to the assessee to substantiate the cash deposit of ₹ 5,75,000/- by producing cogent evidence to the satisfaction of the A.O. and produce Mr. Tinku Chaudhary before the A.O. for his examination. The A.O. shall decide the issue as per fact and Law, after giving due opportunity of being heard to the assessee. Ground of appeal numbers 4 and 5 are accordingly allowed for statistical purposes. 8. So far as the addition of long term capital gains of ₹ 7,80,851/- is concerned, it is the submission of the Learned Counsel for the Assessee that when the property was purchased by the wife of the assessee and sold by the wife of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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