9911796707
TMI Blog2018 (8) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the assessee is that against the order passed u/s.250 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") by the Ld. CIT(A) in upholding the addition of Rs. 38,65,755/- towards Long Term Capital Gain (LTCG) on sale of property without taking into consideration the submissions made by the assessee and the evidence adduced in support of the contentions that the assessee acted as a constituted Attorney by virtue of two Power of Attorney executed by the NRIs in the sale transactions in question. Further that, the decision of the Ld. CIT(A) making the assessee liable to pay tax u/s.5 of the Act being the representative of non-residents on the LTCG arising out of sale of the immovable properties by the NRIs, the real owners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their return of income. The AO considered the assessee as goods as the owner of the property and added the amount of Rs. 38,65,657/- to the income of the assessee towards capital gain. 4. In appeal, the Ld. CIT(A) confirmed the order passed by the Ld. AO and hence the instant appeal. 5. The Advocate appearing for the assessee submitted before us that the assessee has executed the sale deed by virtue of Power of Attorney executed by the NRIs to act on their behalf. Neither the consideration amount of those transactions were credited in the account of the assessee. He further contended before us that the AO has not made any enquiry on the genuineness of the whereabouts of the NRIs in the address as mentioned in the sale deed as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trikambhai Patel can carry out all activities for protecting my ownership rights in respect of the said property and I have appointed him as attorney independently. All activities carried out by him will be admitted by and binding to me and all activities carried out by him will be treated as carried out by me personally. This General Power of Attorney will be limited only for the land of Sub Plot Number 10 situated in the scheme or plots on non agricultural land of part number 2 of Revenue Survey Number 76 of the limit of village Sola and I give assurance that I shall never revoke or cancel this power of attorney." 7. Similarly, the assessee has also executed the sale deed dated 23.11.2011 by virtue of a Power of Attorney dated 02.06.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d property. Similarly, at page No.2 of the purchase agreement of Plot No.6 dated 18.04.2007 of a consideration of Rs. 3,35,400/- speaks of Shri Bhikhabhai Dahyabhai Patel as purchaser of the said property. Therefore, it is evident from those two purchase deeds that it was not the assessee but Shri Arvindbhai Ambalal Patel and Shri Bhikhabhai Dahyabhai Patel were the original owners of those two properties who subsequently sold the same out of which the LTCG have been accrued to them. The assessee in those two transactions in question have acted only as a constituted attorney by virtue of the POAs executed in his favour by the original vendors. Since both the vendors are NRIs in absence of whom the assessee acted as a representative on their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd transferred the same by way of sale for making profit in India evaded tax through constituted Attorney through a colorable device which is not approved under the Income Tax Act, 1961. According to him, income arisen in India from certain real estate transaction in India is liable to be taxed u/s.5 of the Income Tax Act, 1961. He further observed that the NRIs have not filed return of income; no PAN being on record. The AR, according to the Ld. CIT(A) was unable to supply sufficient information about those two NRIs to take further action against them. In the impugned order, the Ld. CIT(A) particularly mentioned that the assessee has failed to discharge its onus so as to enable the AO to take recourse to the provisions of section 5(2)(a) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity proof. No step, whatsoever, taken by the first appellate authority so as to make an investigation into the matter by the CIT(A) on the basis of such passport Cards or the residential address mentioned both in the sale deed and the Power of Attorney which were already available with the AO, a minimum remand report was also not called for while discharging the function as an appellate authority before confirming the addition made by the AO. On the other hand, he has made the assessee responsible to discharge its onus so as to justify the action of the AO to take recourse to the provisions of section 5(2)(a) or (b) of the Act. We, therefore fail to appreciate the stand taken by the first appellate authority who has acted in such lackadai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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