|CORAM:||Jason P. Boaz (AM), Sandeep Gosain (JM)|
|CATCH WORDS:||capital gains|
|DATE:||August 10, 2016 (Date of pronouncement)|
|DATE:||September 5, 2016 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|Capital Gains: Mere fact that the assessee is shown as a co-owner of the property does not mean that the capital gains are partly assessable in her hands if the facts show that the other co-owner bought the property from his own funds and showed it as his sole property in the balance sheet|
The AO in the course of assessment proceedings, on the basis of AIR information observed that the capital gains on sale of the said property in the period under consideration was not disclosed in the assessee’s return of income. The explanation put forth by the assessee, that though the assessee’s name appeared as one of the joint owners, the investment in the said property was made entirely by her husband out of his account; was reflected in his personal Balance Sheet from acquisition till disposal and the STCG arising on sale therefrom was disclosed in his return of income for the relevant period, was brushed aside by the AO. The AO was of the view that since the assessee’s name appeared in the agreement, she was liable to be taxed for 50% of the STCG arising from sale of the said property, observing that since the assessee’s husband had set off the STCG on sale of the said property against sale of some shares, the entire arrangement was done with the intention to avoid payment of legitimate taxes. The CIT(A) allowed the appeal. On appeal by the department to the Tribunal HELD dismissing the appeal:
(i) On an appreciation of the facts on record, we notice that the AO, after reopening the assessee’s case for A.Y. 2005-06 for the purpose of examining, inter alia, the investment in the said property, has in the order of assessment dated 30.11.2012 not disputed the fact that the assessee has not purchased the said property, but rather that the same was purchased by the assessee’s husband, Shri Arjun Bulchandani, out of his own funds. Revenue has also not been able to controvert the factual finding rendered by the learned CIT(A), after examining documents and copies of bank statements, etc. placed before him, that even though the assessee is shown as the co-owner of the said property, the source of funds for investment in purchase of the said property is by the assessee’s husband and that the property was reflected in his Balance Sheet from the period relevant to A.Y. 2005-06 (i.e. 31.03.2005) till its sale, after which the STCG arising thereon was admittedly disclosed by the assessee’s husband in his return of income. In this factual matrix of the case, we concur with the finding rendered by the learned CIT(A) that the entire STCG arising on sale of the said property is to be assessed in the hands of Sri Arjun Bulchandani, the assessee’s husband and not in the assessee’s hands and consequently uphold his direction to the AO to delete the addition of Rs. 45,38,254/- on account of 50% STCG arising on sale of the said property.
Sir, if only the AO had not blindly relied on AIR information but had gone in depth as done by CIT( A) and ITAT to ascertain from documents on record the actual owner of property, lot of litigation would have been avoided. People add names of wife/children for various reasons but actual investor remains the owner of the property.
What if Wife is only for Name purpose a co owner but at the time of sale while receiving the consideration purchaser has deducted tds on names of both wife and husband. now what should be done on that case? how to account whole gain in husband’s return as half tds is showing in wife’s 26as.