9911796707
TMI Blog2022 (12) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... s of appeal before us : "1 That having regard to the facts and circumstances of the case, order of CIT (Appeals)-1, Raipur is unjust, unfair and bad in law as the same is contrary to facts and in violation of principles of natural justice. 2 On the facts and in the circumstances of the case, the Learned A.O has erred on facts and in law in making addition of Rs.3,20,93,522/- on account of Long Term Capital Gain arising from transfer of property that was never owned by the assessee and the Learned CIT (Appeals)-1, Raipur has erred in confirming the said addition without appreciating the facts properly on account of extraneous reasons, hence, it is prayed that the addition and consequential enhancement to the total income may kindly be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the status as that of a power of attorney holder of two persons, viz. (i) Shri Tafazzul Hussain; and (ii) Shri Abbas Hussain Ss/o. Abid Ali, residents of Bhopal. It was further observed by the A.O that the aforesaid property was valued by the Stamp Valuation Authority, Raipur at Rs.3,27,93,522/-. On being queried that now when the transfer of the property in question was carried out on the basis of sale deed executed under his signature, then how he was not liable for being saddled with the consequential taxes on the profit/income arising there from, the assessee reiterated his claim that as the transfer of the property in question was carried out by him as a power of attorney holder and not as an owner, therefore, no liability qua the prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee carried the matter in appeal before the CIT(Appeals) but without any success. 6. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 7. We have heard the ld. authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the ld. A.R to drive home his contentions. 8. Admittedly, it is a matter of fact borne from record that the assessee had sold the property under consideration i.e. 4.5 acre of land bearing Khasra No. Part of 7/6 at Moza Saddu, Pat Halka No.109/39, Raipur in his status as that of power of attorney holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 7/6) at Moza Saddu, Pat Halka No.109/39, Raipur was sold vide a registered sale deed, dated 30.06.2011 by the aforesaid owners, viz. S/sh. Tafazzul Hussain and Abbas Hussain through their power of attorney holder i.e. the assessee. Nothing is either discernible from the record nor has been brought to our notice by the Ld. DR, which would reveal that the assesee, viz. Mohd. Yusuf had any interest other than as that of a power of attorney holder in the aforesaid property under consideration that was sold by him for and on behalf of aforementioned owners, viz. S/sh. Tafazzul Hussain and Abbas Hussain. 9. Apart from that, nothing has been brought on record which would even otherwise reveal that the assessee had any vested interest in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... azzul Hussain and Abbas Hussain had in any way got vested with the rights, title or interest in the property in question by purchasing the said property on the basis of an "agreement", nor that the aforementioned persons were in fact merely benamidar of the assessee who in fact was the real owner of the property, therefore, bringing to tax the income/gains on transfer of the property under consideration in the hands of the assessee is not justified. Our aforesaid conviction is fortified by the order of the ITAT, Amritsar Bench in the case of ACIT Vs. Janak Raj Chauhan (2006) 102 TTJ (Asr) 297. In its aforesaid order, it was observed by the Tribunal that as the assessee before them was a simpliciter power of attorney holder on behalf of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. D.R that the whereabouts of the owners of the property was not to the knowledge of the department is found to be absolutely incorrect and misconceived. Apart from that, as the property in question was undeniably owned by the aforesaid persons, viz. S/sh. Tafazzul Hussain and Abbas Hussain, therefore, the income/gain arising on the transfer of the said property could have only been brought to tax in their hands. As observed by the Hon'ble Supreme Court in the case of ITO vs. Ch. Attchaiah (1998) 218 ITR 239 (SC), the income has to be assessed in the hands of the right person and the right person alone, and while giving effect to the said scheme of taxation the interest of the revenue cannot be allowed to come in the way. Thus, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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