TMI Blog2018 (12) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri N.S. Saini, Accountant Member For the Assessee : Shri K.P. Garg, CA For the Revenue : Shri S.S. Rana, CIT(DR) ORDER PER H.S. SIDHU, JM This appeal of the assessee arises from the order of the ld. CIT(A)- 1, Noida vide order dated 24.02.2017 for assessment year 2012-13. 2. The assessee has raised the following grounds of appeal: 1. That the learned Commissioner of Income tax (Appeals) has erred in confirming the order of the AO by treating the interest income of the (HUF) Satish Tyagi to that of the individual Satish Tyagi. 2. That Ld. CIT(A) has erred in confirming the action of the AO in not accepting the fact that on account of death of Sh. Ved Prakash in 1954 a new HUF came into existence that of his son Satish Kumar and the interest on delayed payment of compensation of Ved Prakash Tyagi (HUF) was released / distributed / paid to the smaller HUF (Coparcenaries). 3. That the learned CIT(A) has erred in law and on facts in confirming the AO s order to assess the benefit derived from the acquisition of ancestral land in the hands of Satish Kumar (Individual) and not in the hands of Satish Kumar (HUF) separately. 4. That the Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w rights of the deceased s son in the agriculture land would depend upon whether he was born before the date on which the UP Zamindari Abolition and Land Reforms Act became applicable to the area where the concerned land was situated. Therefore, in case the son was born before the vesting, he being the son of the deceased would before that date acquires an interest by birth in the agriculture holding of the HUF, but in case he was born after that date, he could not acquire any interest in the bhumidhari land of the deceased by birth. (Controller of Estate Duty vs. Smt. Shiela Prasad (143 ITR 458)(All) 10. That the learned C1T (A) has erred in law and on facts in ignoring section 37 of UP Zamindari Abolition and Land Reforms Act which clearly provides for treating the Joint Family as a separate unit. 11. That the learned CIT(A) has erred in law and on facts in ignoring that the order of partition of a joint Hindu Family can be passed by an Assessing Officer only where the HUF is assessed to Income tax, and where the family has only agriculture income and not liable to tax, no such order can be passed u/s 171 of the Act. 3. The brief facts of the case are that assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the receipt of interest received is being considered and taxed in the hands of Sh. Satish Kumar Tyagi (individual) under the head income from other sources and interest received on compensation at ₹ 70,37,239/- was added to the income of the assessee under the head income from other sources and income under the head capital gains (long-term) works out at ₹ 15,41,886/- and added to the income of the assessee and also interest from bank at ₹ 5,65,142/- was added to the income of the assessee under the head income from other sources thus, computed the income of the assessee at ₹ 59,66,968/- u/s. 143(3) of the Act read with section 144A of the Act vide order dated 10.3.2015. 4. Against the order of the Assessing Officer, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 24.2.2017 has dismissed the appeal of the assessee by holding that that joint Hindu Property does not devolve on HUF by succession as is being sought to be made out on behalf of the appellant. The corpus of the HUF is to be specifically created and only with the creation of corpus an HUF comes into being. He further held that the assessee has not brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n). The interest granted on delayed payment of compensation was released in the individual names as there was no PAN available/allotted in the status of HUF having no other income except agricultural income and also there was no bank account in HUF status, as in the other two cases. He further submitted that the ITO assessed this income in the hands of Shri Satish Kumar Tyagi, individual as in the cases of his brothers Shri Navin Kumar Tyagi and Shri Ashwani Kumar Tyagi. The assessee herein filed appeal before CIT(A)-1 Noida, who dismissed the appeal on the same grounds as in the case of Shri Navin Kumar Tyagi. Accordingly the assessee filed appeal with ITAT. It was submitted that the only issue in all these three appeals is whether the income of the HUF could be taxed in the hands of the individual, which has been settled by ITAT in the case of Shri Ashwani Kumar Tyagi and followed in the case of Navin Kumar Tyagi. It was further submitted that the ITAT in appeal no.2745/DEL/2017, order dated 18-10-2017 in the case of Shri Ashwani Kumar held: that this income is taxable in the hands of respective HUF only and further confirming that the respective HUFs have already paid the taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave heard both the sides and perused the relevant material on record. The only issue involved in this appeal is whether the impugned agricultural land was ancestral coparcenary property passed on from Shri Ghisa to the joint families of Fateh Singh (Son), Rameshwer Dayal (Grand Son) and Naveen Kumar (Great Grand Son) by survivorship to the HUF of Shri Naveen Kumar Tyagi, incorrectly relying on S. 18 of the UP Zamidari Abolition and Land Reforms Act, 1950, ignoring S.37, which clearly provides for treating the Jt. Hindu Family as a separate unit. The main crux of the case lay in the fact of non -payment of tax by the HUF, which has now been paid under the IDS, leaving no ground left for sustaining the addition on any account. None of the HUFs, having only agricultural income was filing any return of income under the Income Tax Act and was never assessed to tax, being not liable to tax. Thus the question of any ITO passing any order u/s.171 of the Act does not arise, nor is applicable to Agricultural families, having no income under the Income Tax Act. Non filing of returns under the Income Tax Act by the HUF was bonafide belief that agricultural income was not liable to tax und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no such return was filed and no such tax had been paid by the HUF. The issue gets settled by the payment of taxes by the HUF through the declaration made before the Pr. CIT under IDS, which has been accepted, as all taxes have been paid. Therefore, in such circumstances, and facts of the case, since the HUF has already paid tax due alongwith interest, etc and correct share had been declared at ₹ 27,79,279/- as against lesser amount of ₹ 22,50,413/- taken by both the authorities below, the Assessing Officer is directed to delete the addition so made. Thus, the grounds of appeal raised by the assessee are allowed. 9. In the result, the appeal of the assessee is allowed. 8.1 Keeping in view of the facts and circumstances of the case as well as the order passed by the Coordinate Bench dated 18.10.2017 in the case of Sh. Ashwani Kumar Tyagi vs. ITO, Noida in ITA No. 2745/Del/2017 (AY 2012-13) as reproduced above, we are of the view that the issue in dispute is squarely covered by the aforesaid decision dated 18.10.2017 in the case of Ashwani Kumar Tyagi (Supra) which has been decided in favour of the assessee. Therefore, respectfully following the order dated 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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