Commissioner Of Income Tax- I, New Central Revenue Building,Statue Circle, Jaipur (Raj v. Shri Vivek Gupta

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 90 / 2014 Commissioner of Income Tax- I, New Central Revenue Building,Statue Circle, Jaipur (Raj.) ----Appellant Versus Shri Vivek Gupta, 30, Kamla Gatta Colony, Near Govind Dev JiMandir, Kanwar Nagar, Jaipur ----Respondent/Assessee Connected With D.B. Income Tax Appeal No. 92 / 2014 Commissioner of Income Tax- I, New Central Revenue Building, Statue Circle, Jaipur (Raj.) ----Appellant Versus Shri Ashish Gupta,30, Kamla Gatta Colony, Near Govind Dev Ji Mandir, Kanwar Nagar, Jaipur ----Respondent D.B. Income Tax Appeal No. 93 / 2014 Commissioner of Income Tax- I, New Central Revenue Building, Statue Circle, Jaipur (Raj.) ----Appellant Versus Shri Ashish Gupta,30, Kamla Gatta Colony, Near Govind Dev Ji Mandir, Kanwar Nagar, Jaipur ----Respondent D.B. Income Tax Appeal No. 94 / 2014 Commissioner of Income Tax- I, New Central Revenue Building, Statue Circle, Jaipur (Raj.) ----Appellant Versus Shri Vivek Gupta, 30, Kamla Gatta Colony, Near Govind Dev Ji Mandir, Kanwar Nagar, Jaipur ----Respondent D.B. Income Tax Appeal No. 98 / 2014 Commissioner of Income Tax- I, New Central Revenue Building, Statue Circle, Jaipur (Raj.) ----Appellant Versus Shri Banwari Lal Sharma 45-B Santosh Sagar Colony, Bharampuri Colony, Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. Anuroop Singhi For Respondent(s) : Mr. Javed Khan _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYASJudgment 18/09/2017 1. In all these appeals since identical questions of law and factsare involved, they are decided by this common judgment. 2.By way of these appeals, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal hasallowed the appeal of the assessee and dismissed the appeals ofthe department. 3.This court while admitting the appeals framed the followingquestions of law:- In D.B. Income Tax Appeal No. 90 / 2014 “ Whether the Tribunal as well as CIT(A) werejustified in holding that the assessee is not arepresentative assessee of Smt. Pomela JeanColleco, a NRI, ignoring the explicit provisions ofSection 163(1) and the admitted fact that the assessee has acquired property from her, which isa specific condition prescribed under the saidSection”? In D.B. Income Tax Appeal No. 92 / 2014 “Whether the Tribunal as well as CIT(A) were justifiedin holding that the assessee is not a representativeassessee of Smt. Pomela Jean Colleco, a NRI, ignoringthe explicit provisions of Section 163(1) and theadmitted fact that the assessee has acquired propertyfrom her, which is a specific condition prescribed underthe said Section”? In D.B. Income Tax Appeal No. 93/ 2014 “ Whether the Tribunal as well as CIT(A) were justifiedin holding that the assessee is not a representativeassessee of Smt. Pomela Jean Colleco, a NRI, ignoringthe explicit provisions of Section 163(1) and theadmitted fact that the assessee has acquired propertyfrom her, which is a specific condition prescribed underthe said Section”? In D.B. Income Tax Appeal No. 94 / 2014 “Whether the Tribunal as well as CIT(A) were justifiedin holding that the assessee is nojt a representativeassessee of Smt. Pomela Jean Colleco, a NRI, ignoringthe explicit provisions of Section 163(1) and theadmitted fact that the assessee has acquired propertyfrom her, which is a specific condition prescribed underthe said Section”? In D.B. Income Tax Appeal No. 98 / 2014 “ Whether the Tribunal as well as CIT(A) were justifiedin holding that the assessee is not a representativeassessee of Smt. Pomela Jean Colleco, a NRI, ignoringthe explicit provisions of Section 163(1) and theadmitted fact that the assessee has acquired propertyfrom her, which is a specific condition prescribed underthe said Section”? In D.B. Income Tax Appeal No. 94 / 2014 “Whether the Tribunal as well as CIT(A) were justifiedin holding that the assessee is nojt a representativeassessee of Smt. Pomela Jean Colleco, a NRI, ignoringthe explicit provisions of Section 163(1) and theadmitted fact that the assessee has acquired propertyfrom her, which is a specific condition prescribed underthe said Section”? In D.B. Income Tax Appeal No. 98 / 2014 “Whether the Tribunal was justified in reversing theorders passed by Assessing Officer as well as CIT(A) andthereby, deleting the entire addition of Rs. 6,34,62,360/-which was made in the hands of the assessee in thecapacity of representative assessee of the Smt. PomelaJean Colleco, ignoring the specific provisions of Section163,50C and 155(15) of the Act? “Whether the Tribunal was justified in restoring thematter to the Assessing Officer for referring the same toDepartmental valuer ignoring the specific provisions ofSection 50C(2)(a), as no objection to the valuation wasraised by the assessee before the Assessing Officer?” In Appeals No. 90/2014, 92/2014,93/2014 and 94/2014 4. The brief facts of the case are that the assesseealongwith his brother Ashish Gupta, both sons of Shri RamPrasad Gupta Purchased two indepentent plots of land being 55A and 55B, Alexandar Compound in front of Central Jail,Agra Road, Jaipur from Smt. Pomela Jean Colleco D/o ShriVarnan Lorence Alexandar, a non-resident Indian, through herpower of attorney holder Shri Banwari Lal Sharma videregistered sale deeds dated 26/05/2007 for consideration ofRs. 1,50,00,000/- each. However, the Sub-Registrar-7, Jaipurhas asessed the valuation of the land for stamp dutypurposes at Rs. 4,75,41,300/- and Rs. 4,75,26,460/-respectively of these plots and thus, there was a difference ofRs. 6,50,67,760/- between the sale consideration declared bythe assessee and the valuation adopted by Sub-Registrar forstamp duty purposes. 4.1 The owner of the plots sold being a foreigner and the taxon capital gain income not being paid on the basis of fullvalue of consideration as taken under Section 50C of the Act,a show cause notice was issued to the assessee on27/12/2010 as to why he should not be treated as agent ofSmt. Pomela Jean Colleco as per Section 163 of the Act forassessment of her income and recovery of due taxes. Afterconsideration of entire facts and documents, moreparticularly the Registered Sale Deed of both the properties,the Assessing Officer vide its order dated 24/03/2011, heldthe assessee to be an agent of Smt. Pomela Jean Colleco asthe assessee has acquired Capital Asset in India by way oftransfer of land from Smt. Pomela Jean Colleco and thus, thecase of the assessee falls within the inclusive definition of agent given in Section 163(1) of the Act. 5. While considering the case the Tribunal observed as under:- agent given in Section 163(1) of the Act. 5. While considering the case the Tribunal observed as under:- “After considering the rival submissions we found that theassessee was held as an agent of Smt. Pamela Colleco asthe assessee has purchased a property owned by herthrough Banwari Lal Sharma who was the power ofattorney holder. While deciding the similar issue in appealin ITA No. 890/JP/12 (supra) in respect to the power ofattorney holder Shri Banwari Lal Sharma, we havealready hold the Banwari Lal Sharma as the agent andrepresentative assessee u/s 163(1)(c) of the Act for theincome from capital gain arising from the transfer of theimmovable properties through two sale deeds, one ofwhich related to the assessee. Therefore, by following ourorders in ITA No. 890/JP/12 in the case of Banwari LalSharma (supra), we find no reason to hold the assesseeShri Ashish Gupta as representative assessee for Smt.Pamela Colleco in respect to the income from capital gainon the sale of immovable properties through Shri BanwariLal Sharma. The ld. CIT(A) after appreciating these facts has held thatassessee can no circumstances be treated as an agent forSmt. Pamella Collecto. Thus we find no infirmity in theorder of ld. CIT(A). Accordingly the grounds No. 1 to 3 ofthe department appeal are dismissed. Therefore, thisappeal of the Revenue stands dismissed.” 6. In view of above, the issue in answered in favour of the assessee and against the department. All these appealsstand dismissed. In Appeal No. 98/2014 7.Since after remand, the AO has passed the order afresh, the appeal stands disposed of. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. B. M.G./Gourav/36-40