Case Law Details
Janak Kanakbhai Trivedi Vs ITO (Gujarat High Court)
It is the case of the appellant that the impugned ancestral property was actually acquired by the HUF of the appellant and that actually by mistake the appellant has given his individual PAN number at the time of execution of the sale deed. It has been argued that the property has been inherited by the appellant however under the Hindu Law the same is an HUF property. The arguments of the appellant have been examined and found to be totally untenable. The argument of the appellant that under the Hindu Law ancestral property devolves upon an HUF are unfounded since under the Hindu Law the ancestral property devolves upon the male lineal ancendants and upon the widow and daughter of the persons holding such ancestral property. The main lineal ancedant has the option to hold such property in his individual ownership or in his HUF. Facts of the case clearly indicates that in the instant case the sale deed shows that the appellant as an individual, and not in the capacity of the karta of the HUF, was the owner of the property since he has executed the sale deed in that capacity. The sale deed nowhere shown that the appellant was signing the conveyance deed as karta of his HUF. The same is evidenced by the fact that the PAN used was that of the appellant as an individual and not of his HUF. It is pertinent to note at this stage that the appellant has been filing the return of income of his HUF and hence no argument can be taken that the HUF was not having a PA No. It is equally pertinent to note from the facts of the case that admittedly returns of income of appellants HUF has been filed in the past and the impugned property has not been shown in such returns as property belonging to the HUF. The intention of the appellant thus are very clear that he always wanted to show the impugned property as belonging to him in his individual capacity and not as belonging to his HUF. The argument of AO that the sale proceeds of the impugned property were deposited into the bank account held by the appellant in his individual capacity which shown that the property was always held as an individual property are also found to be correct. In case the property was belonging to the HUF, then firstly the appellant should have signed as karta of the HUF secondly should have used the PANo. of the HUF and thirdly should have deposited the sale proceeds in the bank account of the HUF as the HUF was having a separate bank account. Thus, in view of the above facts of the case it is concluded that the AO has not made any mistake of law or facts in assessing LTCG arising from the impugned property in the hands of the appellant as an individual.
FULL TEXT OF THE HIGH COURT JUDGMENT / ORDER IS AS FOLLOWS:
1. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Income Tax Appellate Tribunal dated 30.11.2017 passed in ITA No.418/Ahd/2014 for Assessment Year 2009-10, by which the learned Tribunal has dismissed the said appeal preferred by the assessee and has confirmed the order passed by the learned CIT (Appeals), by which the learned CIT (Appeals) upheld the Assessing Officer’s action, the assessee has preferred the present appeal with the following proposed questions of law:-
[1] Whether on facts Tribunal has substantially erred in law in confirming taxation of long term capital gain on sale of immovable property at Rs.20,63,888/- in the hands of the appellant when the ancestral inherited property is owned, sold and the taxed in the hands of the appellant HUF?
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