TMI Blog2021 (8) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... the society - all the members of the society were assessed to tax, in the case of the four members assessments have been made u/s. 143(3) of the Act, the capital gain shown by them in their return of income was duly accepted by the AO, in all these four cases assessment were made in the jurisdiction of the same range wherein the case of the society was assessed - action of the AO for taxing the long term capital gain arising on sale of land in the hands of the assessee society is amount to double taxation since the same has been taxed in the hands of individual member. After considering the above cited facts and circumstances, we consider that ld. CIT(A) has rightly deleted the impugned addition - Decided in favour of assessee. - ITA No. 2211/Ahd/2018 - - - Dated:- 19-8-2021 - Shri Rajpal Yadav, Vice President And Shri Amarjit Singh, Accountant Member For the Revenue : Shri Vinod Tanwani, CIT-D.R. For the Assessee : Shri Tushar Hemani, Sr. A.R. Shri Parimal Singh Parmar, A.R. ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- This revenue s appeal for A.Y. 2015-16, arises from order of the CIT(A)-3, Ahmedabad dated 28-08-2018, in proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the appeal of the assessee. The relevant part of the decision of ld. CIT(A) is reproduced as under:- 3.2 Decision I have perused the assessment order and the appellant's submission. Shri Rajni Shah, C.A. made comprehensive submission and explained the case. It is observed that during the course of the assessment proceedings, the appellant had made a reference to the Jurisdictional Jt. CIT to give necessary directions to the AO u/s. 144A of the Act. The JCIT had thereafter given instructions to the AO for verification of certain documents/information. It is observed that all the information/documents that were called upon by the JCIT, Range-3(3), Ahmedabad were submitted by the appellant and were verified by the AO. Secondly, the only question that arises for consideration is who is the real owner of the impugned property and in whose hands the income from the sale of the same should be taxable. The payments for the purchase of the property were made by the individual members of the society and therefore it was the members who were the real owners of the society since the society was merely acting as a facilitator. Thirdly, at the time of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6254336 750730 1614002 Ketan Patel HUF 16 250 6.78 500000 1090166 813 0000 7039834 7039814 0 407320 16204 Darchana Patel 1 250 13.01 960000 2107531 15610000 13502469 5000000 8502463 10152740 2377672 Madhuben Patel 11 250 16.26 1200000 2622663 19512000 16889337 16889337 0 816080 85712 Vaishal Patel 2 250 17.62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Society so that the Society can enter into the JDA. Thus it is clear that the Society has entered into JDA on behalf of the Members. It is the members who are owning the plots and the Society was only a facilitator. It becomes clear from the JDA that payment for consideration was to be made to an individual plot holder and in fact consideration was mentioned in terms of per Member. Each Member holding 500sqyd plot was to receive a sum of ₹ 82,50,000/- and one fully Furnished flat measuring 2250 sqft and the Members holding 1000sqyd plot were to receive monetary consideration of₹ 1.65 crores plus two flats measuring 2250 soft. In tact the payment of cheques is made by Hash by issuing cheques in the name of individual Member and not the Society. This fact stands admitted because assessee has filed a return declaring capital gaain against part money received against his plot. Thus it becomes clear that it is the individual member who are liable to tax in respect of transfer to plots and the Society being only a facilitator of Post Office Some more details have been discussed in this respect while adjudicating the appeal of Punjabi Coop House Building Society L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also subjected to scrutiny u/s. 143(3) of the Act, particularly with reference to the impugned transaction and all the 4 cases, the. respective AO accepted the returned income of the individual members as the assessed income, A copy each of such orders issued in 2017 by the AO in the same Range jurisdiction, has been placed on record. Therefore, once the impugned capital gain was taxed in the hands of the individual members, the same cannot be taxed in the hands of the society. The ground No.1 raising specific contention about the departmental procedure has not been individually adjudicated as the overall decision would take care of such procedural matters. In view of above facts and the ratio laid down in the case laws (supra), the addition made by the AO is not sustainable. Therefore, the addition made by AO is hereby deleted. The ground No.1 to 4 of appeal is allowed. 5. During the course of appellate proceedings before us, the ld. Departmental Representative has relied on the order of Assessing Officer. On the other hand, ld. counsel has filed paper book comprising detail and copies of document furnished before the lower authorities during the course of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
