TMI Blog2015 (1) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... see at best could be taxed for the income arising in his hands only of his share in the property and not on account of income arising on account of share of his family members in the property, even though the 7/12 records the name of assessee. The assessee had already declared his share of income from capital gains in assessment year 2002-03. However, the gain arising from the sale of the property is now being taxed in the hands of the assessee in assessment year 2001-02 holding the assessee to be the owner of the whole property. However, we find no merit in the said stand taken by the authorities below, especially in view of the facts and circumstances pointed here-in-above. Accordingly, we direct the Assessing Officer to tax the share of the assessee in the said property in his hands and the balance share of the property is to be taxed in the hands of the other family members who are joint owners of the property. The CIT(A) has vide para 6 of the appellate order held the assessee to be entitled to the deduction under section 54F of the Act in respect of one flat owned by the assessee, against which the Revenue is not in appeal. Accordingly, we direct the Assessing Officer to re-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b. Mrs. Meenakshi Vitthal Ladkat ₹ 23 lacs c. Mrs. Shilpa Jaideep Ladkat ₹ 23 lacs d. Mr. Prasanna Vitthal Ladkat ₹ 46 lacs 6. The appellant craves leave to add / modify / alter / delete all / any of the grounds of appeal. 3. The grounds of appeal Nos.1, 2 and 4 raised by the assessee are against the different aspects of the invoking the jurisdiction under section 153C r.w.s. 153A of the Act. The issue in ground of appeal No.5 raised by the assessee is against the addition of ₹ 1,15,00,000/- in the hands of the assessee. 4. Brief facts of the case are that, search under section 132 of the Act was conducted at the residential premises of one Shri Manish Prabhakar Ladkat and his wife Smt. Kavya Ladkat, situated at Plot No.35, Cloud-9, NIBM Road, Pune. During the course of search, one loose paper bundle containing pages 1 to 19 were seized as per annexure A to the Panchanama dated 17.08.2006 from the said premises. The page numbers 15 to 19 of the said bundle were 7/12 extracts for the lands o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was passed by ACIT, Central Circle 1(2), Pune. It was further stated by the learned Authorized Representative for the assessee that the assumption of jurisdiction by the ACIT was incorrect as no satisfaction had been recorded and further, no search material had been transferred from the old Assessing Officer i.e. the Assessing Officer of Shri Manish Prabhakar Ladkat to the new Assessing Officer i.e. ACIT, Central Circle 1(2), Pune. Reliance on the ratio laid down by the Hon'ble Supreme Court in Manish Maheshwari Vs. ACIT reported in (2007) 289 ITR 341 (SC) and Jindal Stainless Ltd. Vs. ACIT reported in (2009) 120 ITD 301 (Delhi), was placed. Another objection raised by the learned Authorized Representative for the assessee was that the assumption of jurisdiction by the ACIT was because of the assignment of the cases by the CIT and such assignment of jurisdiction had not conferred the right on the Assessing Officer to assume jurisdiction under section 153C of the Act. In the absence of any transfer of search material and the satisfaction note being recorded by the ACIT transferring the case to the other ACIT who is in-charge of the assessment of the present assessee, there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the Revenue pointed out that under the provisions of section 127 of the Act, the CIT for proper investigation of the cases, assigned both the cases of the searched person and also of the assessee, to the same Assessing Officer. So, the stage of recording of satisfaction and the issue of notice under section 153C of the Act was with the same Assessing Officer. As per the learned Departmental Representative for the Revenue, the perusal of the record reflected that satisfaction was recorded in the case and thereafter, notice issued under section 153C of the Act. It was further pointed out by the learned Departmental Representative for the Revenue that the statute was clear to the extent that the documents found during the search proceedings, which belonged to other person, satisfaction was to be recorded to initiate the assessment proceedings under section 153C of the Act, in the hands of such person and there is no condition of the recording that the documents were incriminating', before the issue of notice under section 153C of the Act. The learned Departmental Representative for the Revenue further pointed out that there is no merit in the plea of the assessee that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both of the persons searched and the assessee to the ACIT, Central Circle 1(2), Pune. Thus, the Assessing Officer had the jurisdiction over the persons searched from whose possession, the documents relating to the assessee were found and also of the assessee to whom the said papers related. The Assessing Officer therefore, issued a notice under section 153C of the Act to the assessee. The contention of the assessee before us was twofold, that no satisfaction was recorded by the ACIT before transfer of records and issue of notice under section 153C of the Act. The second aspect of the said issue raised by the assessee was that the assumption of jurisdiction by the ACIT by way of transfer of case under section 127 of the Act, was not correct. 11. We find no merit in the said plea of the assessee as the jurisdictional CIT under the provisions of section 127 of the Act is empowered to transfer the jurisdiction of the specified persons to a designated Assessing Officer. The jurisdiction in the case of the assessee was transferred to ACIT, in-charge of the Central Circle 1(2), Pune who was also handed over the charge of the persons searched from whose possession documents relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at where the material found i.e. a loose paper did not relate to the person, then the notice under section 153C of the Act is to be quashed and the proceedings set aside. The issue raised before the Hon'ble Gujarat High Court in Vijay M. Vimawal is factually different and is not applicable to the facts of the present case. 15. Another aspect of the issue raised by the assessee is that in the absence of any incriminating documents found during the course of search, the jurisdiction invoked by the Assessing Officer is invalid. The Hon'ble Delhi High Court in the case of SSP Aviation Ltd Vs. DCIT (supra) had also considered similar issue and had observed that for initiating the proceedings under section 153C of the Act, the requirement is that certain documents should be found which belonged to a person other than the person searched, so that it can be ascertained whether the transactions of the income embodied in the documents has been accounted for in the case of appropriate person. As per the High Court, this would be the first step of enquiry, which is to followed by the Assessing Officer, who is in-charge of the person searched, who would forward the documents to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 i.e. relating to assessment year 2001-02, the capital gain was held to be taxable in the year of transfer. Reliance was placed upon the ratio laid down in the case of Chaturbhuj Dwarkadas Kapadia Vs. CIT reported in (2003) 260 ITR 491 (Bom). The assessee having offered capital gain in assessment year 2002-03, was held to be invalid and the total capital gain was assessed in the hands of the assessee in assessment year 2001-02. The assessee had claimed deduction under section 54F of the Act for the purchase of property which was not allowed to the assessee by the Assessing Officer. 17. The CIT(A) vide para 5.3 of the appellate order, upheld the order of Assessing Officer but allowed the deduction under section 54F of the Act in respect of one flat. On the perusal of the relevant documents, evidence produced by the assessee including the development agreement entered in between various family members of the assessee and M/s. Kumar Associates dated 12.12.2000, it is apparent that the said development agreement was entered into by the assessee and his family members in their individual capacities. The assessee and his family members had filed the wealth tax returns also for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
