2019 (5) TMI 412

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....n 4 kms away and also not comparable to the appellant's property. Non consideration by the authorities below of the sale deeds of identical sale transactions produced by the appellant is arbitrary and has caused denial of justice to the appellant. B) The authorities below erred in including the value of the buildings to the assessment of gift tax without appreciating that they were constructed by the Malik Dinar Trust which was running the college in the property of the appellant. The authorities below have erred in fixing ownership of the buildings on the appellant by holding that the Trust did not have sufficient income to effect constructions of the buildings. This finding is contrary to the statements of profit and loss and balance sheets of the Trust for the relevant period. They have not been looked into or appreciated by the authorities below." 3. The brief facts of the case are as follows: The assessee, late Smt.Fathima Rahim executed a deed settling 94 cents of land along with building in which Fathima College of Pharmacy is housed in favour of her son, who is the legal heir of the assessee. Since Late Smt.Fathima Rahim did not file return, notice under the Gift Ta....

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....red this appeal before the Tribunal. The learned Counsel for the assessee, apart from relying the ground raised, also produced the certificate dated 19.01.2002 issued by the Kollam Corporation to the Fathima College of Pharmacy saying that it was exempt from payment of property tax. The learned AR reiterated the submissions made before the Income-tax authorities. The learned Departmental Representative, on the other hand, strongly supported the assessment order and the CIT(A)'s order. 6. We have heard the rival submissions and perused the material on record. The issue raised in this appeal are two folds - viz., (i) who is the owner of the building gifted whether it is Smt.Fathima Rahim or Malik Dinar Educational Trust? and (ii) whether the DVO has correctly valued the land gifted. 6.1 As regards the second issue, the same according to us, does not arise since the Hon'ble Supreme Court while dismissing the SLP had granted permission to the assessee only to question the ownership of the building. The Hon'ble Supreme Court judgment dismissing the SLP reads as follows:- "UPON hearing counsel the court made the following ORDER Learned senior counsel appearing for the petitioner se....

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....ad filed SLP before the Hon'ble Supreme Court against the judgment of the Hon'ble High Court and the Hon'ble Supreme Court has passed the above order. The ITAT directed for fresh valuation to determine the ownership of the property. The relevant observation of the ITAT reads as follows:- "7. We have heard the rival submissions of the parties. We have also carefully considered the facts. We have also perused the concerned record. We are avoiding repetition of the facts as we have already stated the same hereinabove. The short controversy before us is whether the order of the Hon'ble Supreme Court in Petitions for Special Leave to Appeal(Civil) Nos.13810-13812/2004 is complied with or not. As stated earlier, the assessees challenged the judgment of the Hon'ble High Court of Kerala in GTA Nos.2,3 and 4 of 2002 by filing petitions for Special Leave to Appeal. Permission was sought to withdraw the petitions with liberty to approach the Valuation Authority in respect of the ownership of the building in respect of properties (i) Malik Dinar Education Trust (Fathima College of Pharmacy, Quilon), (ii) M.D.Education Trust (Malik Dinar ITC, Kollam) and (iii) M.D.Education Trust ....

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....mpugned gift to Rs. 37,04,000. This value determined by the DVO was adopted by the Gift Tax Officer and the same was confirmed by the CIT(A). As mentioned earlier, the Hon'ble Supreme Court has only granted the assessee the liberty to question the issue regarding the ownership of the building. The CIT(A) in the impugned order dated 17.08.2018 had elaborately considered the ownership of gifted property. The findings of the CIT(A) read as follows:- 7.1. Owner of the gifted property. The next question to be answered as ordered by the Hon'ble ITAT who is the owner of the gifted property? The case of assessee is that she is not but the Malik Dinar Trust. This is basically wrong since no documents in this regard has ever been produced both by the assessee and her legal heir at any point of given time. The Malik Dinar Trust cannot be owner of the gifted proper since the captioned gifted property was given on lease for a annuity Rs. 6,000, and the same is not supported by any document but based on oral understanding as it was transpired all along. Income Tax returns have never been reported filed by the said Trust but claimed to have filed consolidated income expenditure account an....