9911796707
TMI Blog2023 (7) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, we are directing the AO who is aware of the fact that assessee has declared the relevant transaction in the hands of the assessee s wife, therefore we direct the AO to intimate AO [ITO Ward 16(2)(4)] of the assessee s wife] to revise the assessment in case assessment has been already completed or initiate the proceeding of re-assessment and reject the capital gain declared by her in her return of income and initiate the refund along with interest till this date and as soon as the refund is initiated the present Assessing Officer may initiate the recovery of demand arising out of the assessment in the present case. The issue has to be dealt only by the tax authorities and the credit in the hands of the assessee s wife has to be refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has sold two immovable properties during the year under consideration amounting to ₹.1,33,40,000/- and ₹.2,32,18,150/-. He observed that assessee has offered capital gain tax on transaction of ₹.2,32,18,150/- but did not offered the transactions of ₹.1,33,40,000/- in his return of income. Accordingly, he issued notice u/s. 148 of Income-tax Act, 1961 (in short "Act") on 08.03.2021 and served on the assessee through ITBA portal. The Assessing Officer has reproduced the reasons for reopening in Assessment Order, it is on Page No. 1 to 3 of the Assessment Order. In response assessee has filed his return of income on 20.04.2021 declaring the total income of ₹.3,09,96,140/-. Accordingly, notices u/s. 143(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no loss to the revenue and all the due taxes were paid by wife of the assessee and whatever case laws relied by the assessee were distinguished by the Ld. DRP and Ld. DRP has relied on decision of the Hon'ble Supreme Court and by distinguished the case law relied by the assessee in the case of Dhansukh Rawajibhai patel v. ACIT in ITA.No. 2802/Mum/2017 dated 16.11.2017, wherein Ld. DRP has sustained the addition made by the Assessing Officer with the observation that the tax has to be levied on the right person on whom the tax is leviable. 5. Aggrieved, assessee is in appeal before us raising following grounds in its appeal: - "1. The learned ITO Int Tax Ward-4(2)(1), Mumbai erred in passing order dated 2-1-2023 w's 147 r.w.s 144C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant. d. The said addition tantamount to double addition of same income in the hands of the Appellant even though the same is already taxed in the hands of the wife of the Appellant. e. Neither the Appellant nor his wife has claimed any tax benefit us 54F, 54EC etc f. Rate of tax on LTCG is a flat rate applicable to the Appellant as well as to his wife and thereby works out to exactly identical figure. g. The time limit for revising return of the wife of the Appellant had already lapsed by the time the reassessment was initiated by the ITO Int Tax Ward 4(2)(1), Mumbai. h. This was inadvertent error committed by the erstwhile common CA of the Appellant and his wife without any intention to save the taxes. i. The assessee & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to know of this transaction with the information received from the Income Tax Officer, Ward - 5(2)(3), Ahmedabad and in this regard he relied on the case of Mahaver Kumar Jain v. CIT in Civil Appeal No. 4166 of 2006 dated 19.04.2018 he submitted that as per the above decision the Hon'ble Supreme Court held that there cannot be double taxation on the assessee. 7. On the other hand, Ld. DR relied on the findings of the lower authorities. 8. Considered the rival submissions and material placed on record, we observe from the records submitted before us that due to mistake assessee has not declared one transaction involving capital gain on sale of the property which was in the name of the assessee and it is fact on record that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x on this transaction. However, we observe that the income was not declared by the original person and paid the relevant tax by the proper person. We are of the view that the same transaction cannot be charged to tax twice. Therefore, in our considered view in order keep the record straight and also agreeing the line of argument put forth by the tax authorities, we are directing the Assessing Officer who is aware of the fact that assessee has declared the relevant transaction in the hands of the assessee's wife, therefore we direct the Assessing Officer to intimate the Assessing Officer [Income Tax Officer - Ward - 16(2)(4)] of the assessee's wife i.e. Purnima Shrikant Shah [PAN BJKPS 6068J] to revise the assessment in case assessment has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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