Lt. Col. Jaspal Singh Gill, Jalandhar V. The Assistant Commissioner of Income tax, Jalandhar

CO 26/ASR/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8440 (ITAT-AMRITSAR)
• Duration Of Justice: 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 13-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Fair market value
• Section: 50C; 260A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 161 (ASR)/2013) ASSESSMENT YEAR: 2006-07 PAN: ABAPG1203A ASSISTANT COMMISSIONER VS. LT. COL. JASPA L SINGH GILL, OF INCOME TAX, CIRCLE III, 30-UNITED SERV ICES ENCLAVE JALANDHAR CANTT. ROAD, JALANDHAR (APPELLANT) (RESPONDENT) AND CROSS-OBJECTION NO. 26(ASR)/2013 {ARISING OUT OF I.T.A. NO. 161 (ASR)/2013} ASSESSMENT YEAR: 2006-07 PAN: ABAPG1203A LT. COL. JASPAL SINGH GILL, VS. ASSISTANT COMMISSIONER 30-UNITED SERVICES ENCLAVE OF INCOME TAX, CIRCLE III, CANTT. ROAD, JALANDHAR JALANDHAR (APPELLANT) (RESPONDENT) DEPARTMENT BY: SH. TARSEM LAL, D.R. ASSESSEE BY: SH. J.S. BHASIN, ADVOCATE DATE OF HEARING: 27.05.2013 DATE OF PRONOUNCEMENT: 27.05.2013 ORDER PER BENCH 1) THE REVENUE HAS FILED THE PRESENT APPEAL A GAINST THE IMPUGNED ORDER DATED 23.01.2013 PASSED BY LEARNED CIT(APPEAL S), JALANDHAR, FOR THE ASSESSMENT YEAR 2006-07. THE ASSESSEE HAS ALSO FILED CROSS-OBJECTION. 2 GROUNDS OF APPEAL TAKEN BY THE REVENUE IN I.T.A. NO . 161 (ASR)/2013 ARE AS UNDER: I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERR ED IN DELETING THE ADDITION OF RS. 14,38,170/- MADE BY A. O. ON ACCOUNT OF LONG TERM CAPITAL GAIN BY RELYING UPON THE DECIS ION OF HON'BLE JURISDICTIONAL I.T.A.T. IN THE CASE OF DCIT , CIR-IV, AMRITSAR VS. M/S. SIDHARTHA TEXTILE MILLS LTD. I.T. A. NO. 338 (ASR)/2009 FOR A.Y. 2006-07 WHEREAS THE REVENUE HAS FILED APPEAL U/S 260A BEFORE THE HON'BLE HIGH COURT AGAIN ST THIS ORDER, THE DECISION OF WHICH IS STILL PENDING FOR ADJUDICA TION. II. IT IS PRAYED THAT THE ORDER OF THE LEARNED COMMISSI ONER OF INCOME TAX(APPEALS) BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. III. THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AMEND OR ALTER THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND D ISPOSED OF. 2) THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS IN CROS S-OBJECTION NO. 26(ASR)/2013: I. THAT THE LEARNED CIT(A) FELL INTO GRAVE ERROR IN FA ILING TO HOLD THE IMPUGNED ORDER AS VOID IN TERMS OF SECTIONS 147/148 , EVEN WHEN THE ONLY REASON FOR REOPENING OF THE CASE, I.E. APP LICATION OF PROVISION OF SECTION 50C, WAS HELD TO BE NO APPLICA BLE TO THE FACTS OF THE CASE. II. THAT THE LEARNED CIT(A) OUGHT TO HAVE DELETED THE E FFECT OF ARBITRARY SUBSTITUTION OF FAIR MARKET VALUE OF LAND, AS ON 01.04.1981, BY THE LEARNED A.O. @ RS. 2,25,000/- PE R MARLA, AGAINST RS. 2,95,000/- PER MARLA, ADOPTED BY ASSESS EE AS PER APPROVED VALUERS REPORT. III. THAT THE ORDER OF THE LEARNED CIT(A), TO THE EXTENT DISPUTED ABOVE, IS AGAINST LAW AND FACTS OF THE CASE. 3 3) FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH PARTIES; THEREFORE, THERE IS NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 4) SH. J.S. BHASIN, LEARNED COUNSEL FOR THE ASSESSE E STATED THAT IN A SIMILAR ISSUE AS INVOLVED IN THE PRESENT APPEAL, TH IS BENCH IN THE CASE OF DY. COMMISSIONER OF INCOME TAX VS. SH. PRITAM SINGH LUTHRA, I.T.A. NO. 309(ASR.)/2012, HAD DECIDED IN FAVOUR OF THE AS SESSEE BY DISMISSING THE APPEAL FILED BY THE REVENUE ON 05.09.2012. LEAR NED FIRST APPELLATE AUTHORITY HAS ALSO FOLLOWED THE DECISION OF THIS BE NCH GIVEN IN THE CASE OF DY. COMMISSIONER OF INCOME TAX VS. SH. PRITAM SI NGH LUTHRA(SUPRA) AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR IN DI SPUTE. THUS, HE REQUESTED THAT BY KEEPING IN VIEW THE AFORESAID DEC ISION OF THIS BENCH, THE PRESENT APPEAL FILED BY THE REVENUE MAY BE DISM ISSED. 5) LEARNED D.R. RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 6) WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITY ALONG WITH THE IMPUGNED ORDER. WE ARE OF THE VIEW T HAT LEARNED FIRST APPELLATE AUTHORITY HAD DECIDED THE ISSUE IN DISPUT E IN FAVOUR OF THE 4 ASSESSEE BY FOLLOWING THE DECISION OF THIS BENCH GI VEN IN THE CASE OF DY. COMMISSIONER OF INCOME TAX VS. SH. PRITAM SINGH LUT HRA(SUPRA). FOR THE SAKE OF CONVENIENCE, RELEVANT PARA NOS. 8 & 9 ( PAGES 11 & 12) OF THE IMPUGNED PASSED BY LEARNED FIRST APPELLATE AUTHORIT Y ARE REPRODUCED AS UNDER: 8. ONLY AFTER THE AMENDMENT W.E.F. 01.10.09 PROSPEC TIVELY THE WORD ASSESSABLE IS INSERTED IN SECTION 50C(1) AL ONGWITH THE WORDS ADOPTED OR ASSESSED ALREADY THERE. IT IS ALSO U NDISPUTED THAT NO VALUE WAS ADOPTED OR ASSESSED DURING THE RELEVA NT YEAR AS THE PROPERTY WAS TRANSFERRED THROUGH AN AGREEMENT ONLY AND NOT BY WAY OF REGISTERED SALE DEED. THE ISSUE CAME UP BEFORE THE HON'BLE I.T.A.T., AMRITSAR I.E. THE JURISDICTIONAL TRIBUNAL IN THE CA SE OF SH. PRITAM SINGH LUTHRA, I.T.A. NO. 09(ASR)/2013 (A COPY OF WHICH IS FILED AND IS ON RECORDS). THE RELEVANT PART OF THE DECISION OF HON' BLE I.T.A.T., AMRITSAR, IN THE ABOVE REFERRED CASE DATED 05.09.20 12 IS AS UNDER: WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE REL EVANT MATERIAL AVAILABLE WITH US ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES, INCLUDING THE ORDER DATED 26.08.2009 P ASSED BY THIS BENCH IN THE CASE OF DCIT, CIR. IV, AMRITSAR VS. M/ S SIDHARTHA TEXTILE MILLS LTD. AMRITSAR IN I.T.A. NO. 338(ASR)/ 2009 FOR THE ASSESSMENT YEAR 2006-07 AS WELL AS OTHER ORDERS OF 4 I.T.A. NO. 309(ASR)/2012, I.T.A.T., JAIPUR BENCH, IN THE CASE OF SMT. VIJAY LAXMI DHADDHA VS. ITO (2009) 20 DTR (JP) (TRIB) 365 , I.T.A.T., LUCKNOW BENCH IN THE CASE OF CARLTON HOTEL (P) LTD. VS. ACIT(2009) 21 DTR 165 AND I.T.A.T., JODHPUR BENCH I N THE CASE OF RAM MAL BHANSALI VS. ACIT (2012) 143 TTJ (JD)(UO ) 65. AFTER GOING THROUGH THE SAID ORDERS, WE ARE OF THE CONSID ERED OPINION THAT THE ORDER PASSED BY THIS BENCH IN THE CASE OF DCIT VS. M/S SIDHARTHA TEXTILES MILLS LTD.(SUPRA) IN WHICH JUDIC IAL MEMBER IS THE PARTY AND IN THE CASE OF I.T.A.T., JAIPUR BENCH (SUPRA) IN WHICH ACCOUNTANT MEMBER IS THE PARTY HAVE ADJUDICATED AND DECIDED THE ISSUE IN DISPUTE IN FAVOUR OF THE ASSESSEE. THE REL EVANT PORTION OF 5 THE FINDINGS OF THIS BENCH DATED 26.08.2009 GIVEN I N PARA 5(PAGES 3 & 4) IS REPRODUCED AS UNDER: 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CO NSIDERED THE RIVAL SUBMISSIONS, FACTS OF THE CASE AND THE DE CISIONS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE. IN TH IS CASE, THE ASSET IN QUESTION WAS TRANSFERRED BY EXECUTING POWER OF A TTORNEY DATED 11.08.2005 AND NOT THROUGH REGISTRATION OF THE DOCU MENT. IN SUCH A VALUATION AUTHORITY, FOR THE PURPOSE OF PAYMENT OF STAMP DUTY, IN RESPECT OF SUCH TRANSFER. CONSEQUENTLY, IT IS NOT P OSSIBLE TO ASCERTAIN AND CONSTRUE THAT THE CONSIDERATION RECEI VED BY THE ASSESSEE IS LESS THAN THE UNREBUTTED BY THE REVENUE . THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE PROVISION OF SECTION 50C IS NOT APPLICABLE TO FACT-SITUATION OF THE PRESENT CAS E, AS THE TRANSFER OF THE IMPUGNED ASSETS HAD BEEN EFFECTED BY WAY OF POWER OF ATTORNEY AND NOT REGISTERING THE DOCUMENT, WITH THE REGISTERING AUTHORITIES. THE FACT-SITUATION OF THE PRESENT CASE APPEARS TO HAVE BEEN COVERED BY THE ABOVE AMENDMENT TO SECTION 50C 5 I.T.A. NO. 309 (ASR)/2012 OF THE ACT, WHICH IS EFFECT FROM 01. 10.2009. FURTHER, THE CONTENTION OF THE REVENUE THAT SECTION 2(47) OF THE ACT COVERS ALL TRANSFER, BEING AN INCLUSIVE DEFINITION, IS IRRELEVANT IN THE PRESENT CASE, AS THE DISPUTE PERTAINS TO THE A DOPTION OF CONSIDERATION OF THE IMPUGNED TRANSFERRED ASSET WIT HIN THE MEANING OF SECTION 50-C OF THE ACT AND NOT THE TRAN SFER OF ASSET UNDER SECTION 2(47) OF THE ACT. 6. IN VIEW OF THE ABOVE DISCUSSIONS AND HAVING REGA RD TO THE CASE LAWS RELIED UPON BY THE ASSESSEE AND CONSIDERING TH E CURRENT AMENDMENT MADE TO SECTION 50C, WE ARE OF THE CONSID ERED OPINION THAT THERE IS NO INFIRMITY IN THE ORDER PASSED BY T HE LEARNED CIT(A) AND, HENCE, THE SAME IS UPHELD. ACCORDINGLY, THE AP PEAL OF THE REVENUE IS DISMISSED. 9. IN VIEW OF THE ABOVE, SINCE I HAVE THE BENEFIT O F HAVING THE DECISION OF THE JURISDICTIONAL HON'BLE I.T.A.T. DIR ECTLY ON THE ISSUE, THE CASE OF ASSESSEE IS SQUARELY COVERED BY IT AND RESPECTFULLY FOLLOWING THE DECISION AS ABOVE. I HEREBY DELETE TH E ADDITION. BEFORE PARTING, IT IS TO MENTION THAT THE ARGUMENT THAT SECTION 50 C OF I.T. ACT COULDNT BE INVOKED IN CASES WHERE THE TRANSFER IS PRIOR TO 01.10.2009 AND WAS MADE BY WAY OF AN AGREEMENT A ND NOT THE REGISTERED DEED, IS TAKEN IN RESPECT OF GROUNDS NO. 1 AND 2 RELATED 6 TO CHALLENGING THE REOPENING OF ASSESSMENT. SINCE T HE ADDITION IS DELETED ON MERITS ABOVE, THE DISCUSSION AS TO WHETH ER THE ASSESSMENT WAS RIGHTLY RE-OPENED, IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE REMAINS ACADEMIC AS ON NO W AND NEED NOT BE SEPARATELY DISCUSSED. 7) KEEPING IN VIEW THE AFORESAID DISCUSSION, WE ARE OF THE VIEW THAT THE PROVISION OF SECTION 50C OF THE I.T. ACT IS NOT APP LICABLE TO THE FACT AND SITUATION OF THE PRESENT CASE AS THE TRANSFER OF TH E IMPUGNED ASSET HAS BEEN EFFECTED BY WAY OF POWER OF ATTORNEY AND NOT R EGISTERING THE DOCUMENT WITH THE REGISTERING AUTHORITIES. THE FACT S AND CIRCUMSTANCES OF THE PRESENT CASE ARE EXACTLY SIMILAR TO THE CASE OF DY. COMMISSIONER OF INCOME TAX VS. SH. PRITAM SINGH LUTHRA, I.T.A. NO. 309(ASR.)/2012 DECIDED ON 05.09.2012 BY THIS BENCH, THEREFORE, NO INTERFERENCE IS CALLED IN THE WELL REASONED ORDER PASSED BY LEARNED FIRST APPELLATE AUTHORITY. IN VIEW OF THE AFORESAID DISCUSSION, WE DISMISS THE AP PEAL FILED BY THE REVENUE. 8) AS REGARD TO THE CROSS-OBJECTION FILED BY THE AS SESSEE, SH. J.S. BHASIN, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE, HAS MAD E A STATEMENT THAT HE IS WITHDRAWING THE CROSS-OBJECTION NO. 26(ASR)/201 3 FILED IN I.T.A. NO. 161 (ASR)/2013. HE HAS ALSO ENDORSED THE SAME ON TH E ORIGINAL GROUNDS OF CROSS-OBJECTION. 7 9) KEEPING IN VIEW THE ABOVE STATEMENT MADE BY LEAR NED COUNSEL FOR THE ASSESSEE AS WELL AS HIS ENDORSEMENT ON THE GROUNDS OF CROSS- OBJECTION, WE DISMISS THE CROSS-OBJECTION FILED BY THE ASSESSEE. 10) IN THE RESULT I.T.A. NO. 161 (ASR)/2013 FILED BY THE REVENUE AND CROSS-OBJECTION NO. 26(ASR)/2013 FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH MAY, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH MAY, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: LT. COL. JASPAL SINGH GILL, 30-UNITE D SERVICES ENCLAVE, CANTT. ROAD, JALANDHAR 2. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE III, JALANDHAR 3. THE CIT(A), JALANDHAR 4. THE CIT, JALANDHAR 5. THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.