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TMI Blog2023 (3) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... pouse as tenants and the rent payments were also admittedly made from the individual bank account of these two tenants. In this respect, findings given by the Ld. CIT(A) are also noted, who had also held that conclusion of AO on B. K. Tushar, HUF being the tenant and not the assessee is erroneous and untenable on facts. Considering the facts on record, perusal of the settlement agreement dated 28.10.2013 along with evidence for payment of rentals by the assessee and his spouse, corroborated by individual bank statements and well reasoned findings given by the Ld. CIT(A), we do not find any reason to interfere with the findings given by the Ld. CIT(A) in this respect. Decided against revenue. - ITA No.1845/Kol/2018 - - - Dated:- 17-3-2023 - Shri Rajpal Yadav, Vice President And Shri Girish Agrawal, Accountant Member For the Appellant : Shri Vijay Kumar, Addl. CIT For the Respondent : Shri Ravi Tulsiyan, FCA ORDER PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: This appeal filed by the revenue is against the order of Ld. CIT(A)-10, Kolkata vide Appeal No. 490/CIT(A)-10/W-34(1)/2014- 15/2016-17/Kol dated 12.06.2018 against the order of Ld. ITO, Ward- 34(1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 36 in the original file. 3.2. Though Rule 26 of ITAT Rules provides for continuation of appeal inspite of death of the appellant or the respondent, but the proviso contemplates that Revised Form 36 has to be placed on record exhibiting the details of appellant-assessee or the respondent. Before us, the respondent-assessee has already expired and we do not have any mechanism to ascertain the details of the legal representative of the assessee except seeking help of the Assessing Officer for which we are waiting from last more than 18 months. Under these compelling circumstances, we do not have any other choice except- (a) Dismiss this appeal for want of proper prosecution at the end of the Revenue; or (b) Decided this appeal on the relevant material available before us. 3.3. After due deliberation, we adopt course (b) noted above because all the pleadings are complete i.e. paper books are on the record, required evidence is on the record, the ld. Counsel, who was authorised as the representative by the deceased, is ready to argue the matter in order to help the Bench. It is also pertinent to note that paper book was filed before the death of the respondent by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the old flat of the GSPL was brought to the notice of the AO. 5.1. In the year 1995, GSPL had entered into a development agreement with the developer CDPL to develop/construct building on its said property, which paid Rs.1 crore as security deposit to the land owner i.e. M/s. GSPL. As per the tripartite agreement between M/s. GSPL (owner), M/s. CDPL (Developer) and the tenants (assessee included) of the old building/flat the said security deposit of Rs. 1 crore had to be bifurcated by the owner M/s. GSPL by way of deposit to various tenants of the property to persuade them to vacate the premises. The assessee Shri Bejoy Kumar Chirimar and his spouse Smt. Shakuntala Chirimar were tenants of two separate flats and their son Shri Tushar Chirimar his wife Smt. Anju Chirimar also had tenancy rights in the said old property/flats. For convenience, the appointed amount receivable by the assessee, his wife, his son and daughter in law was deposited in the Bank account of the HUF in which the assessee, his wife, son and daughter in law were coparcener i.e. of M/s. B. K. Tushar (HUF). 5.2. Thereafter, there was a dispute between the parties of the development agreement and the tenants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth their names. On the aforesaid reasons, the AO rejected the claim of exemption u/s. 54F of the Act. 5.5. From the assessment order it is noted that the AO's decision for not allowing the exemption claimed by the assessee u/s. 54F of the Act was for the following reasons: (a) The tenancy of the assessee was nothing but a colourable device. (b) M/s. B. K. Tushar, HUF was the tenant of the property and not the assessee or his spouse and the assessee could not relinquish the tenancy rights which did not belong to him. 6. On the first issue wherein Ld. AO has stated that tenancy was nothing but a colourable device, Ld. Counsel submitted that father of the assessee was not a director at the relevant time, who had died way back in 1963 and thereafter the affairs of the said company were looked after by its Board of Directors. Further, Ld. Counsel submitted that GSPL had entered into an agreement with CDPL in 1995 for the development of properties which was after a gap of 32 years of the death of father of assessee. Thus, the allegation of colourable device for the transfer is the so-called planning qua transfers after more than 30 years is misplaced and erroneous on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the tenant in the property in question and not the assessee or his spouse and, therefore, there could not be any relinquishment of tenancy rights by the assessee and his spouse which never belonged to him, it was submitted that Ld. AO had derived such a misplaced conclusion from Annexure F of the Term Award of the Arbitrator wherein B. K. Tushar, HUF has been mentioned as the person of the assessee s group which shall refund the deposit of Rs.2,51,500/- received from GSPL in the year 1995. According to the Ld. Counsel, Ld. AO has ignored vital facts in respect of tenancies of the assessee and his spouse which has been recognised in the agreed terms of settlement as well as in the interim and final awards. As already stated, rent receipt issued by GSPL also reflects the name of the assessee and his spouse as tenants and the rent payments were also admittedly made from the individual bank account of these two tenants. 6.4. In this respect, findings given by the Ld. CIT(A) are also noted, who had also held that conclusion of AO on B. K. Tushar, HUF being the tenant and not the assessee is erroneous and untenable on facts. The relevant extracts in this respect from the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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