Income Tax Appellate Tribunal - Delhi
Bd Gupta & Sons (Huf),, vs Department Of Income Tax on 11 September, 2008
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'E'
'E' : NEW DELHI
BEFORE SHRI G.D.AGRAWAL,
G.D.AGRAWAL, VICE PRESIDENT AND
SHRI A.D.JAIN, JUDICIAL MEMBER
ITA Nos
Nos.2376 to 2381/Del/2004, 702/Del/2002 & 4305/Del/2004
Assessment Years
Years : 1992-
1992-93 to 1998-
1998-99 & 2001-
2001-02
Income Tax Officer, Vs. M/s B.D.Gupta & Sons (HUF),
Ward-
Ward-31(2), 26, School Lane, Bengali Market,
New Delhi. New Delhi.
(Respondent)
Cross Objection Nos.185 to 192/Del/2008
Assessment Years
Years : 1992-
1992-93 to 1998-
1998-99 & 2001-
2001-02
M/s B.D.Gupta & Sons (HUF), Vs. Income Tax Officer,
26, School Lane, Ward--31(2),
Ward
Bengali Market, New Delhi.
New Delhi.
(Respondent)
Department by : Shri R.S.Negi, Sr.DR.
Assessee by : Shri M.P.Rastogi and Smt.Lalitha
Krishnamurthy, CAs.
ORDER
PER BENCH :
The eight appeals of the Department have been remanded by the Hon'ble High Court vide order dated 11.9.2008. The eight respective cross objections have been filed by the assessee. The relevant portion of the High Court order reads as follows:-
"The order passed on 30.08.2005 in respect of the assessment year 1998-99 has been treated as the main order which has been followed by the tribunal in the other orders. In the order dated 30.08.2005, the tribunal has confirmed the view taken by the Commissioner of Income- tax (Appeals) wherein note of the order dated 17.02.1984 passed by this court in an interlocutory application in a partition suit filed by one of the heirs of Late Mr.B.D.Gupta
2 ITA-2376/Del/2004 & others was taken. The CIT(Appeals) held that only 40% of the properties belonged to the HuF and the balance 60% of the properties were to be treated as properties in the hands of the heirs of Late Shri B.D.Gupta in their individual capacities. In the course of arguments before this court, the learned counsel for the respondents submit that the said suit which was pending before this court was subsequently transferred to the district court on account of enhancement of the pecuniary jurisdiction of the district courts. That suit was ultimately withdrawn by the plaintiff in view of a family settlement that had been arrived at between the parties on 05.11.2004. He has placed on record a copy of the application under Order 8 Rule 1A read with Section 151 as well as photocopy of the family settlement dated 05.11.2004 and a photocopy of the application filed by the plaintiff (Smt. Sneha Lata Gupta) for withdrawal of the suit. Also placed on record is a photo copy of the order dated 19.05.2006 passed by the learned Additional District Judge whereby the suit was permitted to be withdrawn after recording the statements of the parties.
3. The Assessing Officer as well as the Commissioner of Income-tax (Appeals) and the tribunal have recorded that the orders passed by them would be subject to the final order passed by the High Court in respect of the balance 40% share which was being treated at the hands of the HuF.
4. The subsequent developments of the transfer of the suit to the District Court and the withdrawal thereof in view of the family settlement was not before the tribunal when the impugned order was passed. The learned counsel for the parties agree that in view of these developments, the matter be remanded to the tribunal for considering the entire issue afresh in accordance with law. Consequently, we set aside the impugned order and remand the matter to the Income-tax Appellate Tribunal to consider the appeals afresh after taking into account the further developments that have taken place as indicated above. It would be open to the tribunal to pass any order in accordance with law. In doing so, the tribunal shall take note of the provisions of the Income-tax Act, 1961 and in particular Section 171 thereof. This order is also being passed because when the suit was permitted to be withdrawn by the order dated 19.05.2006 there was also a specific direction that the order dated 17.02.1984, which had been taken note of by the Commissioner of Income-tax (Appeals) as also the tribunal, had been vacated.
3 ITA-2376/Del/2004 & others With these directions, these appeals stand disposed of."
2. The assessee is an HuF engaged in the business of trading in sports goods. It also has income from house property and other sources. Its original karta, Shri B.D.Gupta had expired in 1970. Smt.Sneh Lata Gupta and heir of Shri B.D.Gupta and member of the said HuF had filed a suit in 1983, for partition. Vide interim order dated 17.2.1984 (copy at pages 2 to 20 of the assessee's paper book, APB, for short, for AY 1998-99), the Hon'ble Delhi High Court had decided that only 40% of the properties left behind by Shri B.D.Gupta belonged to the HuF. The CIT(A), vide order dated 28.12.2001, for AY 1998-99, followed the said interim order of the High Court to hold that only 40% of the properties belonged to the HuF and that the balance 60% of the properties were individual properties in the hands of the heirs of Late Shri B.D.Gupta. The Tribunal, vide order dated 30.8.2005, for AY 1998-99, followed for the other assessment years, upheld the said order of the CIT(A).
3. The aforementioned partition suit, on enhancement of the pecuniary jurisdiction of the District Courts of Delhi, was transferred by the High Court to the District Court. A family settlement dated 5.11.2004 was arrived at between the parties to the partition suit. Pursuant to that family settlement, the suit was prayed to be withdrawn by the plaintiff. By virtue of order dated 19.5.2006, the learned Additional District Judge permitted the withdrawal of the suit, which is post the aforementioned Tribunal order dated 30.8.2005.
4. It is the above subsequent developments which have resulted in the remand of these matters by the Hon'ble High court to the Tribunal, as noted by the Hon'ble High Court in their order dated 11.9.2008 (supra).
4 ITA-2376/Del/2004 & others
5. The Assessing Officer, in the fact-situation obtaining at the time of the pendency of proceedings before him, had held that the total income of `9,88,581/-, including the business income of M/s Gupta Sports House, was assessable in the hands of the HuF on a protective basis, till the partition of the HuF by way of final decision in the partition suit.
6. The aforesaid subsequent developments in the matter, in the shape of withdrawal of the partition suit, have rendered the assessments open once again and the assessments require to be framed de-novo, in the light thereof, so as to provide the parties, i.e., the assessee HuF as well as the Department, a fresh fair opportunity to enable correct assessments to be arrived at.
7. Accordingly, all the eight appeals of the Department alongwith the respective corresponding cross-objections of the assessee are remitted to the Assessing Officer for framing the assessments de-novo in accordance with law, in the light of the High Court Order dated 11.9.2008 (supra). The parties have mutually agreed to this course being adopted.
8. In the result, for statistical purposes, all the eight appeals of the Department and all the respective corresponding eight cross- objections of the assessee are treated as allowed.
Decision pronounced in the open Court on conclusion of hearing on 3rd November, 2011.
Sd/- Sd/-
(G.D.AGRAWAL)
(G.D.AGRAWAL) (A.D.JAIN)
A.D.JAIN)
VICE PRESIDENT JUDICIAL MEMBER
Dated : 03.11.2011
VK.
5 ITA-2376/Del/2004 & others
Copy forwarded to: -
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT
Assistant Registrar