2022 (12) TMI 688

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....the impugned order on the following grounds of appeal before us : "1 That having regard to the facts and circumstances of the case, order of CIT (Appeals)-1, Raipur is unjust, unfair and bad in law as the same is contrary to facts and in violation of principles of natural justice. 2 On the facts and in the circumstances of the case, the Learned A.O has erred on facts and in law in making addition of Rs.3,20,93,522/- on account of Long Term Capital Gain arising from transfer of property that was never owned by the assessee and the Learned CIT (Appeals)-1, Raipur has erred in confirming the said addition without appreciating the facts properly on account of extraneous reasons, hence, it is prayed that the addition and conseq....

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....f the assessee that the aforesaid property in question was sold by him in the status as that of a power of attorney holder of two persons, viz. (i) Shri Tafazzul Hussain; and (ii) Shri Abbas Hussain Ss/o. Abid Ali, residents of Bhopal. It was further observed by the A.O that the aforesaid property was valued by the Stamp Valuation Authority, Raipur at Rs.3,27,93,522/-. On being queried that now when the transfer of the property in question was carried out on the basis of sale deed executed under his signature, then how he was not liable for being saddled with the consequential taxes on the profit/income arising there from, the assessee reiterated his claim that as the transfer of the property in question was carried out by him as a power of....

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....he income of the assessee at Rs.3,22,61,520/- (including LTCG of Rs. 3,27,93,522/-). 5. Aggrieved, the assessee carried the matter in appeal before the CIT(Appeals) but without any success. 6. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 7. We have heard the ld. authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the ld. A.R to drive home his contentions. 8. Admittedly, it is a matter of fact borne from record that the assessee had sold the property under consideration i.e. 4.5 acre of land bearing Khas....

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....here remains no iota of doubt that the property in question i.e. 4.5 acre of land (forming part of Khasra No. Part 7/6) at Moza Saddu, Pat Halka No.109/39, Raipur was sold vide a registered sale deed, dated 30.06.2011 by the aforesaid owners, viz. S/sh. Tafazzul Hussain and Abbas Hussain through their power of attorney holder i.e. the assessee. Nothing is either discernible from the record nor has been brought to our notice by the Ld. DR, which would reveal that the assesee, viz. Mohd. Yusuf had any interest other than as that of a power of attorney holder in the aforesaid property under consideration that was sold by him for and on behalf of aforementioned owners, viz. S/sh. Tafazzul Hussain and Abbas Hussain. 9. Apart from that, nothin....

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....ent that the assessee on the basis of the power of attorney executed by the aforementioned persons, viz. S/sh. Tafazzul Hussain and Abbas Hussain had in any way got vested with the rights, title or interest in the property in question by purchasing the said property on the basis of an "agreement", nor that the aforementioned persons were in fact merely benamidar of the assessee who in fact was the real owner of the property, therefore, bringing to tax the income/gains on transfer of the property under consideration in the hands of the assessee is not justified. Our aforesaid conviction is fortified by the order of the ITAT, Amritsar Bench in the case of ACIT Vs. Janak Raj Chauhan (2006) 102 TTJ (Asr) 297. In its aforesaid order, it was obse....

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.... of attorney, dated 18.02.2011 executed by the said persons in favor of the assessee, therefore, the contention of the ld. D.R that the whereabouts of the owners of the property was not to the knowledge of the department is found to be absolutely incorrect and misconceived. Apart from that, as the property in question was undeniably owned by the aforesaid persons, viz. S/sh. Tafazzul Hussain and Abbas Hussain, therefore, the income/gain arising on the transfer of the said property could have only been brought to tax in their hands. As observed by the Hon'ble Supreme Court in the case of ITO vs. Ch. Attchaiah (1998) 218 ITR 239 (SC), the income has to be assessed in the hands of the right person and the right person alone, and while giving e....