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TMI Blog2022 (12) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A). Accordingly, in our view, we find no infirmity in the order of Ld. CIT(A) and we accordingly dismissed the appeal of the assessee in light of the detailed order passed by Ld. CIT(A) considering the facts of the case. Appeal of the assessee is dismissed. - IT(SS)A 414/Ahd/2017 & ITA 1701/Ahd/2019 - - - Dated:- 12-12-2022 - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : None For the Revenue : Shri Vijay Kumar Jaiswal, CIT-D.R. Shri Rakesh Jha, Sr. D.R. ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER: - These two appeals are filed by the assessee against the order of Ld. CIT(A) in quantum proceedings and penalty proceedings u/s 271(1)(c) of the Act. Since both the proceedings are related, the same are being heard together. ITA Number: 414/Ahd/2017 2. The assessee has taken the following grounds of appeal: 1 The learned commissioner of income tax (appeals) has erred in law and on facts in confirming the enhancement of long capital gain on sale of immovable property on account of alleged on money received by the sister (power of attorney holder) of the appellant while car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration received by the assessee, the AO also allocated a part of the sale consideration (to the sister of the assessee on account of her being the power attorney holder and considering the active role played with respect to the sale of the aforesaid properties).Accordingly, the AO computed the long-term capital gains in the hands of the assessee at ₹ 90,60,256/- (after reducing the indexed cost of acquisition and brokerage expenses). However, in appellate proceedings, Ld. CIT(A) observed that as per the terms of the will of the Father, the property was to be divided only amongst the two brothers i.e. the assessee and his brother Dr. Harish Zaveri, and the allocation with respect to part of the sales consideration to the sister of the assessee by the Ld. Assessing Officer during the course of assessment proceedings was factually and legally incorrect in the instant set of facts. Accordingly, Ld. CIT(A) re-computed the long-term capital gains in the hands of the assessee and enhanced the sale consideration by holding that the sale consideration of the property CS number 2214 (amounting to ₹ 72.58 lakhs) belongs exclusively to the assessee, 50% of sale consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order and the separate appellate order in the case of Dr. Shaila Atul Patel. 7.4 Levy of income-tax on income under the head 'Profit Gains arising from transfer of Capital Asset' applies to a person who is owner of the property which is subject matter of transfer and it is the owner (the person in whom the title invests) who only can transfer the property directly or through attorney. Accordingly, in the assessment order in the case of Dr. Shaila Patel, the AO is correct in holding that the capital gain tax will be leviable on transfer of properties CS No.2224 and CS No.2216 in the hands of Dr. Dilip S. Zaveri and Dr. Harish S. Zaveri strictly as per the Sale Deeds made by their father and as sold by them in the year under .consideration but the AO has gone wrong in the case of the appellant in treating only 3rd share of the appellant in combined two properties. 7.5 Also as per T. V. Sundaram lyengar Sons Ltd. Vs. CIT 37ITR 26 (Madras), capitt gains tax is attracted the moment the assessee has acquired the right to receive the profits and it is not necessary that the assessee should have actually received the consideration. Section 45 creates a ficti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and independent of the actual receipts by Dr. Dilip S. Zaveri, Dr. Harish , SL Zaveri and Dr. Shaila Atul Patel or anybody else. 4. In addition to the above, Ld. CIT(A) also computed unexplained credits amounting to ₹ 3,518/- in the hands of assessee, interest income of ₹ 11,641/- and short-term capital gains on mutual funds amounting to ₹ 2,638/- in the hands of assessee, with the following observations in the appellate order: 8. Appeal of the appellant on, this ground fails and the income under the head Capital Gains will be enhanced as discussed in paragraph 7.6. The AO shall however adopt the correct figure (if any correction of figure required) but adhere to the principle laid at paragraph 7.6. 9. The AO obtained the details of bank accounts of the appellant with various banks - Citi Bank, Baroda, Bank of India, Alkapuri Branch and Bank of Baroda, Bank of India, Alkapuri Branch and discovered that the appellant had three FDR accounts with Bank of Baroda. Verification of bank statements revealed investment in Mutual Funds and Fixed Deposits in joint with his wife Smt. Dipika Dilip Doctor and receipt of redemption amounts and interest. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e number of opportunities, the assessee has not caused appearance before us to argue his case on merits. We observe that Ld. CIT(A) has after taking into consideration all the facts has passed a detailed and reasoned order, the relevant extracts of which have been reproduced above. The assessee has not produced any material or given any arguments to controvert any of the findings made by Ld. CIT(A). Accordingly, in our view, we find no infirmity in the order of Ld. CIT(A) and we accordingly dismissed the appeal of the assessee in light of the detailed order passed by Ld. CIT(A) considering the facts of the case. 6. In the result, the appeal of the assessee is dismissed. ITA Number 1701/Ahd/2019 7. The appeal of the assessee is against the penalty u/s 271(1)(c) of the Act imposed on the assessee in respect of the aforesaid additions. 8. The assessee has raised the following Grounds of Appeal: 1. That on facts, and in law, the learned CIT(A)has grievously erred in confirming the levy of penalty of Rs.18,36,849/- u/s 271(1)(c) of the Act. 2. That on facts, and in law, the learned CIT (A) has grievously erred in giving directions vide para 9.1 of the order und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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