TMI Blog2019 (4) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... 171 of the IT Act and as such the plea of assessee in this regard does not hold good. The ld. AR of the assessee could not be able to discard the findings reached by the ld. CIT(A) in the impugned order. We, therefore, are not inclined to interfere with the impugned order. Accordingly, the appeal of the assessee deserves to be dismissed. - ITA No. 5317/Del/2013, ITA No. 5318/Del/201 - - - Dated:- 23-4-2019 - Shri Amit Shukla, Judicial Member And Shri L.P. Sahu, Accountant Member For the Appellants : Sh. Abhishek Mathur, Advocate For the Respondent : Sh. Surender Pal, Sr. DR ORDER PER L.P. SAHU, A.M.: These two appeals have been filed by different assessees against the orders passed by the ld. CIT(A)-28, New Delhi dated 19.07.2013 for the assessment yea 2009-10. Since the issue involved in both these appeals are common in the identical facts, hence, both the appeals are being decided by this consolidated order. For the sake of convenience, we first take up the appeal of the assessee Shri Ajay Kumar Seth. The assessee has raised following concise grounds in this appeal : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty is being assessed in the status of Hindu Divided Family (HUF), it cannot be assessed in the status of individual unless and until the valid partition u/sec. 171 of the Income Tax Act, 1961 is not been recorded in the records of the Income Tax Department. In the absence of any order u/sec. 171 of the Act, the property at no stretch of imagination can be assessed as property of the individuals. This aspect was totally ignored by the Hon'ble Commissioner of Income Tax (Appeals) which is bad in law. Neither the learned Assessing Officer nor the Hon'ble Commissioner of Income Tax (Appeals) provided any opportunity to the appellant for this intention to change the established status of HUF to Individuals, therefore, the assessment made in the status of individuals are void ab initio. 5) That the Hon'ble Commissioner of Income Tax (Appeals) further erred in law in not deciding the appeal of the Appellant (ground-wise). She has passed the order in a mixed format without dealing each ground individually. This has resulted to the fact that Ground No. 6 remained unadjudicate. It has erroneously been merged with the Ground Nos. 7 8 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale consideration compared to circle rate mentioned in the sale deed. Therefore, the matter was referred to the valuation officer who has estimated value of property at ₹ 29,51,900/-. The assessee was given opportunity to explain as to why the entire sale consideration of property should not be taken at ₹ 29,51,900/- as determined by the Valuation Officer. In this regard, the assessee filed reply vide letter dated 30.11.2012 which was considered by the Assessing Officer including the circle rate and valuation officer s report and considered the sale value of property at ₹ 29,51,900/-. Since the property was purchased in the year 1945-46 and the valuation of property as on 01.04.1981 was not available before the Assessing Officer, therefore, he estimated the value of property at ₹ 20,000/- as on 01.04.1981 and accordingly, calculated the capital gain as under : Sale consideration Rs.29,51,900/- Value on 01.04.1981 Rs.20,000/- Index cost of acquisition ₹ 20,000 x ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee had sold a property for a consideration of ₹ 12,00,000/-, information about which was received through AIR. The document filed by the assessee as evidence showed that the property had been sold by the assessee alongwith three other vendors for ₹ 12,00,000/-. As per the circle rate the value of the property was ₹ 48,66,500/-. This value was adopted for computation of stamp duty. The Assessing Officer raised a query in regard to non declaration of the sale proceeds by the assessee. The assessee claimed that the property belonged to the HUF and the property had been duly reflected in the income tax and wealth tax records. The Assessing Officer on the basis of following arguments, held that the property was individual property of the co-owners. The income tax and wealth tax record did not contain evidence that the properly belonged to the HUF. As per the sale deed the assessee was shown as a co-vendor. No evidence was filed to show that the property belonged to the HUF. An affidavit was filed by the purchaser saying that the property was sold by the assessee and the other three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F). It is important that Sh. Rajnath expired in 1964 and in the present proceedings Sh. Pramod Kumar Seth has been claimed as karta. However there is no return which has been signed/ verified by Sh. Pramod Kumar Seth. As per these returns the HUF owns residential house at Khatrana Mohalla, Shikohabad, agricultural land at village Shikohabad and a house - Mohd. Basadari. The address of the property which has been sold is the BSradari Sher Afghan, Ballimaran, Chandni Chowk Delhi. The appellant has filed copies of income tax record of Sh. Rajnath Seth HUF for assessment year 1978-79, 79-80, 80-81, 81-82, 82-83. These income tax returns have also been signed by Sh. A.K Seth, though the returns are in the name of Sh. Rajnath Seth (HUF). In all these income tax returns the property income has been declared from residential house 12/1, Khatrana Shikohabad. Even as per the assessment orders for these years there is only reference to income from property at Shikohabad. There is no reference to any rental income from Delhi. The appellant has also filed copies of income return of Sh. Rajnath Seth HUF for asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of the appellant and reject the paper trail created by the appellant and require it to show that the transaction is really one which is above board which the appellant has failed to prove. Hon ble Supreme Court in the case of Sumiti Dayal 214 ITR 801 has held that the genuineness of the transaction is to be considered on the basis of surrounding circumstances, human probabilities and the conduct of the connected parties. A transaction does not become genuine merely because a paper trail has been created/filed. The AO while exercising his power as an investigating officer has a right to go beyond what is apparent. The mere filing of affidavit, gift deed etc shall not make the gift genuine. Hon'ble Supreme Court in the case of Sumiti Dayal (Supra) signifies that what is apparent must be examined on the touchstone of surrounding circumstances, human probabilities. Merely because a paper trail has been filed will not by itself make the transaction genuine. Hon ble Delhi Court in the case of Ashok Mahendru Sons (HUF) v CIT (2008) 9 DTR (Delhi) 222: (2008)173 TAXMAN 178 has held that even though the documentation may be in order, if there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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