TaxTMI 
TaxTMI 
2021 (4) TMI 726
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....is case, notice U/s 148 of the I.T. Act, 1961 was issued to the assessee on 29.03.2017 on the basis of the information in his possession that the assessee has sold an immovable property for Rs. 6,00,000/- vide sale deed dated 23.09.2009 to Sh. Mahesh Chand Sharma, Alwar and Sub- Registrar, Alwar adopted value of Rs. 14,75,230/- for registration of sale deed. In response to notice U/s 148, the assessee filed her return of income on 06.10.2017 declaring total income of Rs. 340/-. During the course of assessment proceedings the assessee filed the copy of sale deed showing sales consideration of Rs. 6,00,000/- in which it is clearly mentioned that she is only General Power of Attorney holder and not the owner of the house property situated at 4/123 NEB House Board, Alwar which was allotted by Rajasthan Housing Board., Alwar for consideration of Rs. 2,89,582/- to Smt. Tripta Nurpuri, sister of the assessee. In support of the above, copy of the allotment letter issued by Rajasthan Housing Board, copy of Registered General Power of attorney in favour of assessee by Smt. Tripta Nurpuri and an affidavit of Smt. Tripta Nurpuri affirming receipt of sale consideration of Rs. 6,00,000/- from th....
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....considering the facts and circumstances of the case that assessee is not owner of the house dismissed the appeal. The ld. Commissioner (Appeals) also ignored the taxability of long term capital gain contained u/s 45 of the I.T. Act, 1961, which cast liability of tax on owner of the asset and not any other person who is not the owner of the house property. 6. It was further submitted that during the course of assessment proceedings, the AO issued show cause notice to the assessee that the value of Rs. 14,75,230/- adopted by the Sub registrar for registration will be adopted in view of the provisions of section 50C of the I.T. Act, 1961. While passing the assessment order, indexation cost of Rs. 5,52,918/- was worked out and reduced from Rs. 14,75,230/- and an amount of Rs. 9,22,312/- was quantified as long term capital gain and the demand was raised against the assessee who is not enjoying the ownership of the house. It was submitted that the assessee is a house wife and dependent on her husband and no substantial amount was found deposited in her bank account during the financial year by A.O. which may lead to the belief that she has kept with herself any amount over and above t....
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....t the Honorable Supreme Court in the case of Shiv Kumar & ANR v/s Union of India vide Civil appeal No. 8003 of 2019 arising out of SLP N0.24726/2019 D.N 25495 of 2019 has held that the GPA holder has no right in the property and the GPA holder is only an agent under contract Act and the said decision supports the case of the assessee. It was accordingly submitted that necessary relief may be provided to the assessee by deleting the addition so confirmed by the ld CIT(A). 9. Per contra, the ld. DR submitted that the AO was in possession of relevant information that the assessee has sold an immoveable property and the gains arising thereof has not been reported to tax and the notice u/s 147 was accordingly issued after recording the reasons and seeking requisite permission from the competent authority. It was accordingly submitted that the AO has rightly acquired the jurisdiction under section 147 and in any case, no arguments have been advanced by the ld AR regarding ground of appeal no. 1 and hence, the said ground of appeal should be dismissed. 10. On merits, it was submitted that the assessee has sold a residential house situated at Alwar to Sh. Mahesh Chand Sharma for a co....
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....ted by the assessee, it has been stated that the conveyance deed has been executed by the assessee as power of attorney holder and the power of attorney so given by Smt Tripta Nurpuri continues to remain valid and also the fact that as on date of execution of the conveyance deed, Smt Tripta Nurpuri was alive and she has not cancelled the said general power of attorney. It has also been stated in the conveyance deed that Smt Tripta Nurpuri continues to enjoy the ownership rights as well as possession over the property and in event of any subsequent dispute, she will continue to remain responsible. Therefore, as per documentary evidence available on record, the assessee has executed the conveyance deed in the capacity of power of attorney holder and not in the capacity of owner of the property and accordingly, as far as power of attorney dated 3.1.2008 and sale deed dated 23.09.2009, nothing can be inferred that the assessee has acquired the property in question and subsequently sold the same vide sale deed dated 23.09.2009 as owner of the said property. The AO has not disputed these documents available on record, however for the reason that the assessee had failed to produce Smt Tri....
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....n favour of the assessee. The AO instead of discharging his duty of conducting the enquiry has asked the assessee to produce these persons. Further, when this is a case of sale of land by execution of Sale Deed in the capacity of Power of Attorney holder, then the proceedings should have also been initiated in case of these original owners of the land. The AO failed to conduct the requisite enquiry and to ascertain the correct facts from such enquiry but has shifted the burden on the assessee to produce these persons. Accordingly on the plain reading of these documents when it cannot be said to be a sale by the assessee as an owner of the land, then in the absence of any further investigation and enquiry conducted by the AO and to bring any material or fact to establish that the assessee has initially acquired the property in question at the time of Power of Attorney dated 16.08.2005 and subsequently sold the same vide Sale Deed dated 14.08.2007 in the capacity and in his right as an owner of the land. Hence in the facts and circumstances of the case, when the AO has failed to contradict the documentary evidence, the addition made by the AO in the hands of the assessee is ....