R.C. Sharma, Accountant Member - (1.) THIS is an appeal filed by the revenue against the order of Commissioner (Appeals) dated 22-3-2002 for the assessment year 199293 in the matter of order passed under section 143(3).
(2.) Following four effective grounds have been taken by the revenue : "1. The Commissioner (Appeals) has erred in law and on facts in deleting the addition of Rs. 39,550 made as a short-term capital gain and failed to appreciate the evidence marshalled by assessing officer. 2. The Commissioner (Appeals) has erred in law and on facts in deleting the addition of Rs. 2,98,000 under section 69 of Income Tax Act, 1961. The Commissioner (Appeals) has erred in law and on facts in deleting the addition of Rs.2,95,000made under section 40A(3) of Income Tax Act, 1961 and failed to examine properly the arguments of the assessing officer.
(3.) THE Commissioner (Appeals) has erred in law and on facts in admitting the additional evidence of the agreement dated 20-5-1984 which was never produced before the assessing officer and has contravening the provisions of rule 46A of the Income Tax Rules, 1962." 3. Rival contentions have been heard and records perused. First grievance of revenue relates to deletion of addition of Rs. 39,550 made on account of short-term capital gain. THE facts in brief are that the assessee sold a plot of land during the year under consideration and received payment of Rs. 77,000 in cash. THE assessing officer found that assessee has purchased the plot at Rs. 37,500 and which was held by him for less than 36 months. It was contended before the assessing officer that assessee was not the legal owner, but only power of attorney holder, therefore, capital gains should not be charged in his hands. It was also submitted that plot was sold at Rs. 150 per sq. yard and not at Rs. 310 per sq. yard as alleged by the assessing officer as per the statement of husband and brother of the buyer of the plot. However, on the basis of statement recorded by the DDI, the assessing officer concluded that assessee had sold plot at Rs. 310, he, therefore, computed capital gain at Rs. 39,550. 4. By the impugned order, the Commissioner (Appeals) deleted the addition made on account of capital gain by observing that there was no transfer of plot in the name of the assessee within the meaning of section 2(47), insofar as full consideration of Rs. 37,500 was not paid by the assessee. THE Commissioner (Appeals) further observed that out of total purchase consideration of Rs. 37,500, the assessee had only paid Rs. 37,000 and till the balance amount is being paid, he could not become the legal owner of the plot. On the basis of power of attorney held by the assessee, the Commissioner (Appeals) concluded that even if any capital gain is taxable, it should be taxed in the hands of the legal owner and not in the hands of the assessee, who was merely having power of attorney.;