TMI Blog2022 (8) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... avoid any family dispute. There is nothing to show that the family was living jointly, i.e., as a family. There is in fact no reference to any other property in the document, and also nothing to show that it was the only property held by the family. There is in fact no whisper of the Hindu Undivided Family (HUF) (or even family) in the said partition deed. There is again nothing to show that the income from the said property (or any other income) was being returned as family income, i.e., either of the larger family, or even the smaller families of the two sons, i.e., post partition. There is nothing to show of any procedure in its respect having been followed, and at any stage; nay, of the property or income therefrom being returned as family property, either before or after the partition, which in that case would be partial. Was it followed by any subsequent partition, as indeed the share retained by father, which would in that case be of the larger HUF, may have been partitioned, also dividing any other assets of the erstwhile larger HUF, complying with s. 171, to which reference, drawing a blank, was made during hearing. That is, there is no evidence on record as to either t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage, including before us, even as a bald claim/denial, without material in support, would be to no consequence. There is nothing on record to suggest either the conversion of land, i.e., for residential purposes, or even of construction of a residential house, much less its completion within the time frame provided u/s. 54-F. In other words, the assessee s claim is wholly without any factual basis and, accordingly, merits dismissal. We may though clarify that the (plots of) land sold falling to the share of JB is, as held by us, the property of S2 (Bhaskar Bhattacharya), the capital gain could only be assessed in his hands. That being the case, the question of exemption u/s. 54B or 54F to the assessee (JB), his wife, does not arise. The assessees having sold residential plots, i.e., by plotting the agricultural land, the same can only be regarded as an adventure in the nature of trade. The date of conversion of the erstwhile agricultural land into a residential land or, in its absence, seeking permission for plotting or otherwise applying for civic amenities, viz. water, sewerage, electricity, etc., or, in its absence, the commencement of plotting itself, could be regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n who is to be taxed, and merely because a wrong person is taxed with respect to a particular income, the Assessing Officer is not precluded from taxing the right person with respect to that income See CH. ATCHAIAH [ 1995 (12) TMI 1 - SUPREME COURT] . - I.T.A. No. 225/JAB/2018, C.O. No. 25/JAB/2018 (arising out of I.T.A. No. 225/JAB/2018), I.T.A. No. 226/JAB/2018, C.O. No. 26/JAB/2018 (arising out of I.T.A. No. 226/JAB/2018) - - - Dated:- 5-8-2022 - Shri Sanjay Arora, Hon ble Accountant Member And Shri Manomohan Das, Hon'ble Judicial Member For the Appellant : Shri Sapan Usrethe, Advocate For the Respondent : Shri Rakesh Kumar Gupta, Sr. DR ORDER PER BENCH This is a set of two Appeals and two Cross Objections (COs) by the Revenue and the Assessee respectively, in respect of assessments for two years under section 143(3) read with section 263 of the Income Tax Act, 1961 ( the Act , hereinafter) for Assessment Year (AY) 2009-10, dated 29/03/2016. The assessees being related and the facts of the cases being largely the same, the same were heard together and are being disposed off per a common order. 2.1 The background facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , taking into consideration the entire facts and circumstances and explanations, in accordance with law. 2.2 In the set aside proceedings, the assessee explained the source of investment on account of sale of 18 (19) plots of land for Rs. 50.92 lacs (Rs. 47.96 lacs), i.e., at an aggregate of Rs. 98.88 lacs. The actual cost of the new residential plots (including registration fee) was at Rs. 99.70 lacs, with 50% share each, break-up of which is as under: Smt. Seema Bhattacharya (50%) Smt.Jharna Bhattacharya (50%) Total Cost of Land Rs. 45,00,000/- Rs. 45,00,000/- Rs. 90,00,000/- Stamp Duty Rs. 3,78,000/- Rs. 5,00,000/- Rs. 8,78,000/- Registration charges ---- Rs. 90,513/- Rs. 90,513/- Deed writing ---- Rs. 1,700/- Rs. 1,700/- Total Rs. 48,78,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue s appeals thereagainst, initially dismissed in limine due to low tax effect u/s. 268A (vide common order dated 23/08/2019), were later recalled by the Tribunal u/s. 254(2) on being moved by the Revenue in this behalf and showing it s appeals as saved under clause 10(c) of Board Instruction No. 03/2018, dated 11/07/2018, i.e., on acceptance of the audit objection, vide a combined order, for all the four assessees (including two HUFs), dated 07/09/2020, even as the two appeals qua HUF were not recalled in view the Revenue admitting, vide it s letter dated 21/07/2020 (copy on record) to only the instant assessments being upon pursuant to the revenue audit objection. Aggrieved, the Revenue is in appeal, and the assessee s COs are supportive of the first appellate order. 3. Before us, it was claimed that the Revenue s appeals, inasmuch as they contest both, the deletion of the capital gains as well as the allowance of exemption u/s. 54B, are not maintainable qua the former. This is as it is only the denial of exemption u/s. 54B, that was the subject matter of RAOs, to which reference was made. Now, the claim u/s. 54B would arise only where capital gain is assessed/as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (capital asset) sold by the assessees belonged thereto, as claimed by the Revenue, or to the HUFs of which the respective assessees are members (as spouse of their husbands), as claimed by the assessees. The ld. CIT(A) has held it to be the property of the respective HUFs, so that no capital gain arises and, consequently, is assessable in the hands of the two individual assessees, being the wives of the respective kartas, who are brothers. The basis of his decision, as a reading of his orders shows, is the partition deed dated 30/08/1974 (copy of record). We have perused the same. The land was originally allotted to Lt. Sh. Krishna Bhattacharya, from whom it demised to his son, Shri Bhuwan Mohan Bhattacharya (BMB). BMB had two sons, i.e., Shankar Bhattacharya and Bhaskar Bhattacharya. Vide deed dated 30/08/1974, BMB divided the said land, as well as his self-acquired land, at a total of 15.77 acres, between himself and his two sons, the share of each being as under:- a) BMB (father) : 5.45 acres b) Shankar Bhattacharya (S1) : 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion dated 30/08/1974, to no answer. As explained in Kalooram Govindram v. CIT [1956] 57 ITR 335 (SC), a division by metes and bounds confers on a divided member an absolute title to a specified property whereas before the partition he had only some interest in the entire joint family property. The partition deed, in absence of its registration or reference in the revenue record; in fact, sans any corroborative material or even circumstance, is itself wholly unproved. Further still, the sale deed, the primary document inasmuch as only an owner could execute the same, conveying the title to the purchaser (transferee), is conspicuous by its absence. How, rather, one wonders, if the land (property) belonged to the HUF, could the wives of the kartas transfer the same, which could only be by the karta. As explained by the Apex Court in CIT v. Seth Govindram Sugar Mills [1965] 57 ITR 510 (SC), coparcenership is a necessary qualification for the managership of a joint family. A Hindu female is not a coparcener and has no legal qualification to become the manager (karta) of a joint Hindu family. The foregoing is stated to merely clarify the legal position even as there is, as afore-st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olly without any factual basis and, accordingly, merits dismissal. We may though clarify that the (plots of) land sold falling to the share of JB is, as held by us, the property of S2 (Bhaskar Bhattacharya), the capital gain could only be assessed in his hands. That being the case, the question of exemption u/s. 54B or 54F to the assessee (JB), his wife, does not arise. 5.3 The assessees having sold residential plots, i.e., by plotting the agricultural land, the same can only be regarded as an adventure in the nature of trade. The date of conversion of the erstwhile agricultural land into a residential land or, in its absence, seeking permission for plotting or otherwise applying for civic amenities, viz. water, sewerage, electricity, etc., or, in its absence, the commencement of plotting itself, could be regarded as the date of conversion of the erstwhile capital asset into a business/trading asset. The stamp value on this date would stand to be deemed as the consideration in terms of s.45(2), and capital gain computed accordingly. This deemed consideration would then have to be appropriated over the number of plots, and business income computed on the basis of plots sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 lacs is stated, which is at variance with the net consideration of Rs. 32.88 lacs as stated by the AO. We may also hereby clarify that the addition in respect of excess investment, being u/s. 69/69A, to the extent it is sustained, would stand assessable, in respect of investment in the name of JB, in her hands inasmuch as the source thereof is unexplained and cannot be ascribed to her spouse. 5.5 We may finally consider the assessee s COs which, as afore-noted, are supportive of the impugned order. We have for the reasons detailed hereinabove (para 5.1), found the assessee s claim of the land sold as belonging to the HUF/s as being both factually unproved and legally not maintainable. This disposes the assessee s COs. As regards the claim of it being a case of double taxation; the same income being also taxed in the hands of the HUFs, the same is not maintainable. Firstly, there is nothing on record to show so, with, in fact, as also afore-noted, it was the Revenue which was in appeal before the Tribunal, whose appeals before it stood dismissed u/s. 268A, and not recalled, as was the case for the assessees in the instant case. That apart, it is only where the same income is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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