IN INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER I.T.A. No.539/Coch/2015 Assessment Year : 2009-10 Shri Ajai Joseph, Vs. ITO(International Taxation-1) Director, Cochin. M/s. Consolidated Shipping Line India (P) Ltd., 37/1491-A, Nethaji Nagar, Kadavanthra P.O., Elamkulam, Kochi-682 020. [PAN:AFLPJ 0176N] (Assessee-Appellant) (Revenue-Respondent) Assessee by Shri C.B.M. Warrier, CA Revenue by Shri A. Dhanaraj, Sr.DR Date of hearing 13/10/2016 Date of pronouncement 14th/10/2016 ORDER Per GEORGE GEORGE K., JUDICIAL MEMBER This appeal at instance of assessee is directed against order of CIT(A)-III, Kochi dated 07/09/2015. relevant assessment year is assessment year 2009-10. 2. grounds raised by assessee reads as follows:- 1. appellant is Ajai Joseph, Cochin and in regard to AY 2009-10, Assessing Officer has wrongly assessed capital gain in respect of sale of property belonging to appellant s wife as appellants income and commissioner of Income Tax (Appeals) has gone wrong in confirming same. 2 I.T.A. No.539/Coch/2015 2. property is purchased by own sources of appellant s wife and hence full amount of capital gain is assessable in case of appellant s wife and CIT(Appeals) has gone wrong in upholding assessment by officer. 3. For above reason and other arguments those may be put forward at time of hearing appellant may submit that full amount of capital gain is assessable in case of appellant s wife and assessment in case of appellant may be cancelled. 3. Briefly stated facts of case are as follows: assessee, individual is NRI. return of income for assessment year 2009-10 was filed on 11/06/2009 declaring total income of Rs.4,50,650/-. Assessing Officer, in course of assessment proceedings, noticed that for relevant assessment year assessee and his wife (Smt. Shiney Blossom Joseph) had jointly sold property for consideration of Rs.37,65,600/-. assessment was completed u/s. 143(3) of Act, vide order dated 22/12/2011. Assessing Officer held that assessee had not disclosed capital gain in return of income and brought to tax capital gain of Rs.5,66,672/- being 50% of assessee s share. 4. Aggrieved, assessee preferred appeal to first appellate authority. It was contended before first appellate authority that impugned property was purchased with funds provided by assessee s wife and therefore, entire capital gain was offered in hands of his wife by filing revised return of income for concerned assessment year. It was submitted that addition in 3 I.T.A. No.539/Coch/2015 hands of assessee is not legally correct. CIT(A), however rejected contentions and dismissed appeal of assessee. 5. Aggrieved, assessee is in appeal before Tribunal. Ld. AR submitted that wife of assessee had purchased property and had disclosed entire capital gain in her hands. It was submitted that liability to tax 50% of capital gain in hands of assessee amounts to double taxation. It was prayed that if one more opportunity is provided, necessary proof evidencing that impugned property was purchased out of funds of assessee s wife could be furnished. It was submitted that in interest of justice and equity matter may be remanded to file of Assessing Officer for de novo consideration. Ld. DR was duly heard. 6. I have heard rival submissions and perused material on record. Admittedly, in this case, wife of assessee had declared entire capital gain in her revised return and paid tax on same. Therefore, there is double taxation to certain extent. It is case of assessee that impugned property has been purchased entirely out of funds of his wife and hence, liability of 50% of capital gain in his hands is unjustified. This contention of assessee is not supported with necessary evidence on record. However, since wife of assessee had already disclosed entire capital gain in her return of income, I am of view that in interest of justice and 4 I.T.A. No.539/Coch/2015 equity, one more opportunity needs to be granted to assessee to prove that impugned property is purchased entirely out of funds of assessees wife and no capital gain is liable to be taxed in his hands. Therefore, issue is restored to file of Assessing Officer. Assessing Officer shall dispose off matter after affording reasonable opportunity of hearing to assessee. It is ordered accordingly. 7. In result, appeal filed by assessee is allowed for statistical purposes. Pronounced in open court on 14th-10-2016 Sd/- (GEORGE GEORGE K.) JUDICIAL MEMBER Place: Kochi Dated: 14th October, 2016 GJ Copy to: 1. Shri Ajai Joseph, Director,M/s. Consolidated Shipping Line India (P) Ltd., 37/1491-A, Nethaji Nagar, Kadavanthra P.O., Elamkulam, Kochi-682 020. 2. Income Tax Officer (International Taxation-1), Kochi. 3. Commissioner of Income-tax(Appeals)-III, Kochi. 4. Principal Commissioner of Income-tax, Kochi. 5. D.R., I.T.A.T., Cochin Bench, Cochin. 6. Guard File. By Order (ASSISTANT REGISTRAR) I.T.A.T., Cochin 5 I.T.A. No.539/Coch/2015 Ajai Joseph v. ITO(International Taxation-1), Cochin