SHRI LALLU RAM YADAV, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 1034/JPR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6294 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 27-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA JCIT DR DHK
• Assessee Lawyers: PANKAJ KUMAR GARG
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Capital asset; Application of stay; Cost of acquisition; Fair market value; Valuation report; Reassessment proceedings
• Section: 50C; 54F; 147; 148; 37; 144; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,O JH HKKXPUN] YS[KK LNL; LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM VK;DJ VIHY LA-@ ITA NO. 1034/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2007-08 SHRI LALLU RAM YADAV VILLAGE: HEERA PURA AJMER ROAD, JAIPUR CUKE VS. THE ITO WARD- 2 (3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: BUTPR 9268 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI PANKAJ KUMAR GARG, CA JKTLO DH VKSJ LS@ REVENUE BY:SHRI A.S. NEHRA, JCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 09/07/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 12 /07/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THE APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A)-1, JAIPUR DATED 03-11-2017 FOR THE ASS ESSMENT YEAR 2007-08 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL . 1. THAT THE AO HAD ERRED IN INITIATING THE PROCEE DINGS U/S 147, THE SAID PROCEEDINGS ARE ILLEGAL AND VOID. 2. THAT THE LD. CIT(A) HAD ERRED IN DISALLOWING THE FMV AS ON 01- 04-1081 AND ESTIMATING THE FMV AT RS. 50,000/-. 3. THAT THE LD. CIT(A) HAD ERRED IN REJECTING THE D EDUCTION CLAIMED U/S 54F. ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 2 4. THAT THE LD. CIT(A) AND AO HAD ERRED IN NEGLECTI NG THE VALUATION REPORT OF REGISTERED VALUER REGARDING FMV AS ON 01-05-2006. 5. THAT THE LD. CIT(A) AND AO HAD ERRED IN TREATING THE VALUE U/S 50C AS RS. 81,58,720/- INSTEAD OF RS. 10,00,000/- W HEREAS THE VALUE U/S 50C AS ON DATE OF JUDGEMENT WAS RS. 10,00,000/-. THE ASSESSEE HAS FILED THE FOLLOWING ADDITIONAL GRO UND PRAYING AS LEGAL GROUNDS. 1. THAT NO NOTICE U/S 148 WAS SERVED ON THE ASSESSE E BEFORE COMPLETING OF ASSESSMENT PROCEEDING. 2. THAT AO HAD NOT TAKEN APPROVAL FOR REOPENING OF ASSESSMENT AS PER SEC 151. 2.1 APROPOS GROUND NO. 1 TO 5 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 3.1.2 DETERMINATION : (I) THE BRIEF FACTS OF THE CASE ARE THAT DURING TH E YEAR UNDER CONSIDERATION THE APPELLANT ALONG WITH HIS BROTHERS NAMELY S/SHRI MADAN LAI, GOVIND NARAYAN AND MUNNA LAI HAD SOLD LAND AT TAGORE NAGAR , HEERAPURA TO SMT. KRISHNA DEVI WIFE OF SHRI MUSSADI LAI YADAV VIDE FO UR SEPARATE SALE DEEDS. THE SALE DEEDS, EXECUTED BY THE THREE BROTHERS OF T HE APPELLANT WERE REGISTERED WITH SUB-REGISTRAR- III, JAIPUR AND THE SALE DEED E XECUTED BY THE APPELLANT WAS REGISTERED WITH THE SUB-REGISTRAR- IV, JAIPUR. IT M AY BE MENTIONED THAT THE COLLECTOR (STAMPS), JAIPUR VIDE ITS ORDER DATED 23. 03.2006 HAS DETERMINED THE VALUE OF THE LAND SOLD BY THE THREE BROTHERS OF THE APPELLANT FOR THE PURPOSES OF CHARGING STAMP DUTY AT RS. 81,58,722/-. IT MAY BE M ENTIONED THAT IN THE CASE OF THE APPELLANT, THE LAND WAS SOLD FOR A CONSIDERA TION OF RS. 10 LAC WHICH WAS ALSO ACCEPTED BY THE SUB-REGISTRAR- IV, JAIPUR FOR THE PURPOSES OF CHARGING STAMP DUTY. (II) THE APPELLANT HAS NOT FILED ANY RETURN OF IN COME FOR THE YEAR UNDER CONSIDERATION U/S 139 OF THE ACT AND IN VIEW OF THE INFORMATION RECEIVED FROM ADIT(LNV.), JAIPUR, THE AO, HAS INITIATED PROCEEDIN GS U/S 147 OF THE ACT AND HAS ISSUED NOTICE U/S 148 OF THE ACT ON 20.03.2013 WHICH WAS SERVED THROUGH REGISTERED POST AND A COPY OF WHICH WAS ALSO SERVED THROUGH AFFIXTURE ON 28.03.2013. HOWEVER, NO RETURN OF INCOME WAS FILED BY THE APPELLANT EVEN IN ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 3 RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT. THE A O HAS ISSUED VARIOUS NOTICE INCLUDING A SHOW CAUSE NOTICE U/S 144 OF THE ACT BU T AGAIN NO COMPLIANCE WAS MADE. FURTHER, IN RESPECT OF THREE PARTS OF THE PRO PERTY SOLD BY THE BROTHERS OF THE APPELLANT, THE COLLECTOR (STAMPS), JAIPUR HAD D ETERMINED THE MARKET VALUE AT RS. 81,58,722/- AND SINCE, THE APPELLANT WAS HAV ING 1 /4 TH SHARE IN THE SAME PROPERTY SOLD BY THE BROTHERS OF THE APPELLANT TO S MT. KRISHNA DEVI, THE AO HAS ADOPTED THE SUM OF RS. 81,58,722/- AS SALE CONS IDERATION U/S 50C OF THE ACT. FURTHER, SINCE, THERE WAS NO COMPLIANCE BY THE APPELLANT BEFORE THE AO, THE AO IN THE ABSENCE OF RETURN OF INCOME OF THE AP PELLANT AS WELL AS NON AVAILABILITY OF THE COST OF THE ACQUISITION OF THE PROPERTY UNDER CONSIDERATION HAS TAKEN THE COST OF ACQUISITION AT RS. NIL AND HA S DETERMINED THE LONG TERM CAPITAL GAINS ON SALE OF THE LAND UNDER CONSIDERATI ON AT RS. 81,58,720/- I.E. THE ENTIRE AMOUNT ADOPTED BY THE COLLECTOR (STAMPS), JA IPUR FOR THE PURPOSE OF CHARGING STAMP DUTY. (III) IN THE STATEMENT OF FACTS FILED WITH THE APP EAL IN FORM NO. 35, IT WAS SUBMITTED BY THE APPELLANT THAT THE DEAL UNDER CONS IDERATION FOR SALE OF LAND HAD ALSO BECOME DISPUTED AND THE CASE IS PENDING FO R DISPOSAL IN THE COURT OF LAW AND IT WAS STILL HAVING THE POSSESSION OF THE L AND. IT WAS FURTHER SUBMITTED THAT IT HAS RECEIVED ONLY A SUM OF RS. 5 LAC OUT OF THE SALE CONSIDERATION OF RS. 10 LAC. (IV) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLANT, ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. IT IS NOTE D FROM THE REGISTERED SALE DEED DATED 01.05.2006 THAT THE APPELLANT HAS STATED TO RECEIVE A SUM OF RS. 5 LAC IN CASH AND REMAINING AMOUNT OF RS. 5 LAC THROU GH CHEQUE DATED 01.5.2006 AND NOTHING REMAINED OUTSTANDING FROM THE BUYER SMT. KRISHNA DEVI. IT WAS FURTHER STATED IN THE SALE DEED THAT T HE POSSESSION OF THE LAND WAS ALSO HANDED OVER BY THE APPELLANT TO SMT. KRISHNA D EVI. IT IS NOTED FROM THE MATERIAL PLACED ON RECORD THAT SOME DISPUTE HAS ARI SEN BETWEEN THE APPELLANT, HIS BROTHERS ON THE ONE HAND AND SMT. KRISHNA DEVI ON THE OTHER HAND WHICH IS PENDING BEFORE THE COURT OF LAW. IT IS NOTED FROM T HE MATERIAL PLACED ON RECORD IN THE CASE OF SHRI GOVIND NARAYAN YADAV, BROTHER O F THE APPELLANT, FOR THE AY 2006-07 IN ITA NO. 483/2013-14 THAT A SUIT FOR I SSUE OF TEMPORARY INJUNCTION WAS FILED BY APPELLANT ALONG WITH HIS BR OTHERS SHRI GOVIND NARAYAN YADAV AND OTHERS IN RELATION TO THEIR DISPUTE WITH SMT. KRISHNA DEVI IN THE COURT OF CIVIL JUDGE (A & B) AND METROPOLITAN MAGIS TRATE (EAST), JAIPUR AND VIDE ORDER DATED 03.07.2013 IN CASE NO. MISC.(TEMPO RARY INJUNCTION)/ 332/2012, THE TEMPORARY INJUNCTION AS PRAYED BY THE PETITIONERS WAS DENIED BY THE CIVIL JUDGE, A PART OF THE RELEVANT EXTRACT OF THE ABOVE REFERRED ORDER OF CIVIL JUDGE IS REPRODUCED AS UNDER: LQFO/KK DK LARQYU O VIWJ.KH; {KFR ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 4 10- PWAFD OKNXZLR HKWFE DS LACA/K ESA OKNHX.K DK IZ FKEN``V;K DKSBZ LOKFERO O DCTK UGHA IK;K X;K GSA VR% OKNHX.K DS I{K ESA ;FN DKSBZ FUKS/KKKK TKJH UGHA DH XBZ] RKS MUGS VF/KD VLQFO/KK O VIW.KHZ; {KFR GKS] ,SLK IZDV UGHA GKSRK GSA VR% NKSUKS FCUNWW HKH IZKFKHZX.K DS I{K EAS IZEKF.KR UGHA IK;S TKRS GSA 11- PWAFD IZFKEN``V;K DSL] LQFO/KK DK LARQYU O VIW .KHZ; {KFR DS FCUNW IZKFKHX.K DS FO:} IZEKF.KR IK;S X, GSA VR% IZKFKHZX.K DK IZKFKZU K I= VLOHDKJ FD, TKUS ;KSX; IK;K TKRK GSA VKNSK 12- VR% IZKFKHZX.K DK ;G IZKFKZUK & I= CKCR VLFKKBZ FUK/KKKK FO:} VIZKFFKZ;K VLOHDKJ DJ [KKFJT FD;K TKRK GSA (V) AGAINST THE ABOVE REFERRED ORDER OF CIVIL JUDGE , THE APPELLANT ALONG WITH HIS BROTHER SHRI GOVIND NARAYAN YADAV AND OTHE RS (THE PETITIONERS) FILED A CIVIL APPEAL BEFORE THE ADDL. DISTRICT JUDGE NO. 16, JAIPUR AND VIDE ORDER DATED 21.05.2013, IN CIVIL MISC. APPEAL NO. 08/2013 , THE ADDL. DISTRICT JUDGE CONFIRMED THE ABOVE REFERRED ORDER DATED 07.03.2013 OF CIVIL JUDGE AND THUS, NO TEMPORARY INJUNCTION WAS GRANTED EVEN BY ADDL. D ISTRICT JUDGE, JAIPUR. A PART OF THE RELEVANT EXTRACT OF THE SAME IS REPRODU CED AS UNDER: LQFO/KK DK LARQYU O VIWJ.KH; {KFR PWAFD FOOKFNR HKWFE DS CKJS ESA VIHYKFKHZX.K DK DKS BZ IZFKE N``V;K LORO VKSJ DCTK UGHA IK;K GS VKSJ IZFKE N``V;K LOKFERO VKSJ D CTK UGHA IK;S TKUS DS DKJ.K VXJ DKSBZ LFKK;H FUKS/KKKK TKUH UGHA DH TKRH GS RKS VI HYKFKHZX.K DKS DKSBZ ,LS VLQFO/KK GKSUS OKYH UGHA GS CFYD VLQFO/KK IZR;FKHZ DKS GKSXH FD TK S TK;NK MLUS IATHD``R FO; I= LS [KJHNH GS] MLDK MI;KSX MIHKKSX DJUS LS OAFPR GKS TK ,XH VKSJ VIHYKFKHZX.K ,SLS DKSBZ VIWJ.KH; {KFR DKS FCUNW HKH LIV UGHA DJ IK;S FD VK F[KJ FDL IZDKJ LS MUGSA {KFR GKSXH VKSJ ,SLS {KFR DK VKDYU UGHA FD;K TK LDSXK CFYD VIW J.KH; {KFR DK FCUNW HKH IZR;FKHZ DS I{K ESA GS FD MLUS IATHD`R FO; FOYS[K LS TK;NKN [KJHNH VKSJ VC VLFKK;H FUKS/KKKK DK VKNSK TKJH DJH FN;K RKS MLS VIWJ.KH; {KFR GKSXHA VIHYKFKHZX.K@IZKFKHZX.K VIUK IZFKE N``V;K EKEYK] LQFO/KK DK LURQYU VKSJ VIWJ.KH {KFR DS FCUNW RHUKSA GH LFKKFIR UGHA DJ IK; S GSA VR% VIHYKFKHZX.K@IZKFKHZX.K DK VKONSU FO}KU V/KHULFK U;K;KY; }KJK [KKJHT DJUS ESA DKSBZ =QFV UGHA DH XBZ GS VKSJ IZKFKZUK& I= [KKJHT GKSUS ;KSX; GKSUS LS [KKJHT FD; K X;K GSA VIHYKFKHZX.K DH VIHY [KKFJT FD;K TKUS ;KSX; GKSUS VKSJ FO}KU V/KHULFK U; K;KY; }KJK IKFJR VKNSK DH IQFV FD;S TKUS ;KSX; GSA VKNSK QYLO:I VIHYKFKHZX.K@IZKFKHZX.K }KJK IZLRQR VIHY [KKFJT DH TKRH GS RFKK VKNSK FNUKAD 07-03-2013 FOFO/K NHOKUH IZKFKZUK& I= LA[;K 332@12] IZKFKZUK I= VLFKK;H FUKS/KKKK] YYYWJKE OXS- CUKE D``.KKNSOH] U;K;Y; FLFOY U;K;K/KHK DFUB [K.M IWOZ] T;IQJ UXJ }KJK IKFJR DH IQFV DH TKRH G SA FU.KZ; DH IZFR DS LKFK FOPKJ.K U;K;KY; DH I=KOYH VF OYEC YKSVKBZ TK,A (VI) THUS, IT COULD BE SEEN FROM THE ABOVE DECISION S OF CIVIL JUDGE AND THE ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 5 ADDL. DISTRICT JUDGE THAT THE POSSESSION OF THE PRO PERTY UNDER CONSIDERATION WAS FOUND TO BE WITH SMT. KRISHNA DEVI AND NOT WITH THE APPELLANT AND HIS BROTHERS. IT MAY BE MENTIONED THAT AGAINST THE ORDER OF ADJ J AIPUR, THE APPELLANT AND HIS BROTHERS FILED A WRIT PETITION BE FORE THE HONBLE HIGH COURT OF RAJASTHAN AND VIDE ORDER DATED 31.01.2014 IN S.B . CIVIL MISC. STAY APPLICATION NO. 18755/2013 IN S.B. CIVIL WRIT PETIT ION NO. 21812/2013 IN THE CASE OF SHRI LALLU RAM YADAV & OTHERS - PETITIONERS AND ADJ & OTHERS - RESPONDERS, IT WAS DIRECTED BY THE HONBLE HIGH COURT OF RAJASTHAN TO MAINTAIN STATUS QUO AS REGARDS THE POSSESSION, ALIE NATION, CONSTRUCTION AND CREATION OF THIRD PARTY INTEREST IN THE SUIT LA NDS, PENDING THE WRIT PETITION AND THE STAY APPLICATION WAS DISPOSED OFF. IT MAY FURTHER BE MENTIONED THAT THE REGISTERED SALE DEED EXECUTED BY THE APPELLANT FOR SALE OF THE LAND HAS NOT BEEN CANCELLED TILL THE DATE OF TH IS ORDER. (VII) DURING THE APPELLATE PROCEEDINGS, IN THE CAS E OF SHRI GOVIND NARAYAN YADAV, BROTHER OF THE APPELLANT, THE RELIANCE WAS P LACED ON THE CASE OF HIRER LAI RAM DAYAL VS. CIT [1979] 2 TAXMAN 579 (P & H), WHEREIN IT WAS HELD THAT IF THE ASSESSEE, EVEN IN THE FACE OF THE REGIS TERED SALE DEED, IS ABLE TO PROVE BY COGENT EVIDENCE AND SATISFY THE TRIBUNAL T HAT NO SALE, IN FACT, TOOK PLACE, THE TRIBUNAL HAS TO NECESSARY CONCLUDE THAT THERE WAS NO CAPITAL GAIN. IT IS TO BE NOTED THAT IN THE INSTANT CASE UNDER CO NSIDERATION, THE FACTS ARE DISTINGUISHABLE AS THOSE OF THE ABOVE REFERRED CASE . FURTHER, IT HAS BEEN HELD BY TWO JUDICIAL AUTHORITIES THAT POSSESSION OF THE LAND WAS WITH SMT. KRISHNA DEVI AND IN FACT, NO TEMPORARY INJUNCTION WAS ISSUE D THEREOF. (VIII) THEREFORE, IN VIEW OF THE ABOVE DISCUSSION AND LOOKING TO THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE APPELLANT HAS TRANSFERRED ITS LAND TO SMT. KRISHNA DEVI DURING TH E YEAR UNDER CONSIDERATION AND THUS, IS LIABLE FOR CAPITAL GAINS TAX. (IX) DURING THE APPELLATE PROCEEDINGS, IT WAS SUBM ITTED BY THE APPELLANT THAT THE PROVISIONS OF SECTION 50C OF THE ACT COULD BE INVOKED ONLY IF THE SALE CONSIDERATION OF THE CAPITAL ASSET, AS STATED IN TH E SALE DEED, IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTH ORITY OF STATE GOVERNMENT FOR THE PURPOSES OF PAYMENT OF STAMP DUTY IN RESPEC T OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL, F OR THE PURPOSES OF SECTION 48 OF THE ACT, BE DEEMED TO BE THE FULL VALUE OF CONSI DERATION. IT WAS FURTHER STATED THAT IN THE INSTANT CASE UNDER CONSIDERATION , THE VALUE OF THE LAND WAS ASSESSED AT RS. 10 LAC BY THE SUB-REGISTRAR- IV, JA IPUR. IN VIEW OF THESE FACTS, VIDE THIS OFFICE LETTER DATED 09.12.2016, THE MATTE R WAS APPRISED TO THE DIG-II (REGISTRATION & STAMPS), JAIPUR FOR TAKING NECESSAR Y ACTION, IF ANY, IN RESPECT OF LAND SOLD BY THE APPELLANT DURING THE YEAR UNDER CONSIDERATION. IT MAY BE MENTIONED THAT VIDE ORDER DATED 27.06.2017, THE COL LECTOR (STAMPS)- II, JAIPUR- HAS DETERMINED THE VALUE OF FHE LAND AT RS. 81,58,722/- AFTER TAKING INTO CONSIDERATION, THE VALUATION MADE BY THE COLLE CTOR (STAMPS), JAIPUR IN RESPECT OF PART OF THE PROPERTIES SOLD BY THE THREE BROTHERS OF THE APPELLANT. (X) DURING THE APPELLATE PROCEEDINGS, VIDE ORDER S HEET ENTRY DATED ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 6 18.09.2017, A COPY OF THE ABOVE ORDER DATED 27.06.2 017 OF THE COLLECTOR (STAMPS)-II, JAIPUR WAS ALSO PROVIDED TO THE APPELL ANT FOR OBTAINING ITS COMMENTS AND THE CASE WAS FIXED FOR 26.09.2017, ON 26.09.2017, IT WAS SUBMITTED BY THE APPELLANT THAT: FURTHER SUBMISSION DATED 26.09.2017 WITH RESPECT TO ABOVE WE WOULD LIKE TO STATE THAT AS PER ORDER OF COLLECTOR (STAMPS), JAIPUR-LL, DATED 27.06.2017, ST AMP DUTY VALUE OF ASSESSEEES PROPERTY AT KHASRA NO. 212/187/1/1 AND 213/197/2 AT VILLAGE HEERAPURA, JAIPUR HAS BEEN INCREASED FROM R S. 10,00,000/- TO 81,58,772/- AFTER A LAPSE OF 11 YEARS. THIS ORDE R HAS BEEN PASSED EX-PARTE AND NOT IN KNOWLEDGE OF ASSESSEE. ASSESSEE HAD SOLD AGRICULTURE LAND IN THE SUBJECT MATTER& DLC VALUE O F THE AGRICULTURE LAND WAS RS. 978085/- I.E. @ 995000/- PER BIGHA. AS SESSEE HAS APPLIED FOR THE CERTIFIED COPY OF THE ORDER AND IS FILING APPEAL AGAINST THIS ORDER WITH THE REVENUE COURT AND THE S AME WILL BE FILED WITHIN ONE WEEK. FURTHER, YOU ARE REQUESTED TO PLEASE LOOK INTO THE OTHER GROUNDS OF APPEAL AND PASS AN ORDER IN THE INTEREST OF JUSTICE AND OBLIGE. AND FOR THIS ACT OF KINDNESS MY CLIENT AS DUTY BOUN D SHALL EVER PRAY THE CASE WAS ADJOURNED TO 24.10.2017. ON 24.10.2017 , THE AR OF THE APPELLANT HAS ATTENDED THE PROCEEDINGS BU T NO SUBMISSIONS WERE MADE. SINCE, THE LAND UNDER CONSIDERATION IS N OW VALUED BY THE STAMP VALUATION AUTHORITY AT RS. 81,58,722/- AND TH E SALE CONSIDERATION AS STATED IN THE SALE DEED WAS ONLY R S. 10 LAC, THEREFORE, THE PROVISIONS OF SECTION 50C OF THE ACT ARE CLEARLY APPLICABLE IN THE INSTANT CASE UNDER CONSIDERATION AND THEREFORE, IT IS HELD THAT THE AO WAS JUSTIFIED IN TAKING THE SUM OF RS. 81,58,722/- AS SALE CONSIDERATION WHILE COMPUTING THE LONG TERM CA PITAL GAIN ON THE SALE OF LAND UNDER CONSIDERATION . (XI) DURING THE APPELLATE PROCEEDINGS, THE APPELLAN T HAS SUBMITTED A COPY OF ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON, WHICH WAS E-FILED ON 18.01.2016. AS PER THE ENCLOSED COMPUTATION OF INCOME, THE APPE LLANT HAS COMPUTED THE LONG TERM CAPITAL GAIN AS UNDER:- (AMOUNT IN RS.) SALE VALUE 10,00,000 LESS: INDEXED COST OF ACQUISITION 73,725X519 3,82,633 6,17,367 LESS: DEDUCTION 6,17,367 ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 7 U/S 54F LONG TERM CAPITAL GAINS NIL (XII) THE ASSESSMENT ORDER WAS PASSED BY THE AO U/S 144/1 47 OF THE ACT ON 07.03.2014 AND THE RETURN OF INCOME WAS FILED BY TH E APPELLANT ON 18.01.2016 I.E. THE RETURN OF INCOME WAS FILED AFTER THE COMPL ETION OF THE ASSESSMENT AND THEREFORE, NO COGNIZANCE COULD BE GIVEN TO IT AS IT IS A NON EST RETURN. (XIII) IT MAY BE MENTIONED THAT THE APPELLATE AUTH ORITY CAN EXAMINE A CLAIM NOT MADE BY THE APPELLANT IN ITS RETURN OF INCOME, HOWEVER, IN THE INSTANCE CASE UNDER CONSIDERATION, IT IS TO BE NOTED THAT TH E APPELLANT HAS FILED ITS RETURN OF INCOME POST COMPLETION OF ASSESSMENT. HOWEVER, I T IS TRITE LAW THAT ONLY THE REAL INCOME IS TO BE SUBJECTED TO TAXATION. THE APP ELLANT OR ITS FOREFATHERS MUST HAVE ACQUIRED THE LAND FOR SAME CONSIDERATION AND T HE BENEFIT FOR COST OF ACQUISITION SHOULD BE ALLOWED FOR COMPUTING THE REA L INCOME OF THE APPELLANT. IT MAY BE MENTIONED THAT AS PER REGISTERED VALUER R EPORT DATED 11.01.2016, THE FMV OF THE LAND AS ON 01.04.1981, SOLD BY THE APPEL LANT DURING THE YEAR UNDER CONSIDERATION, WAS STATED AT RS. 75,000/- PER BIGHA . HOWEVER, NO BASIS FOR ARRIVING AT SUCH RATE WAS PROVIDED IN THE VALUATION REPORT AND CERTAINLY, IT WAS NOT BASED ON ANY SALE INSTANCE. THEREFORE, IN VIEW OF THE ABOVE DISCUSSION, IN MY CONSIDERED OPINION, IT WOULD BE APPROPRIATE TO T AKE FMV OF THE LAND UNDER CONSIDERATION AS ON 01.04.1981 AT RS. 50,000/- PER BIGHA. THE AO IS HEREBY DIRECTED TO ALLOW THE SAME ALONG WITH INDEXATION BE NEFIT WHILE COMPUTING THE LONG TERM CAPITAL GAINS ON SALE OF LAND UNDER CONSI DERATION. (XIV) IT IS ALSO NOTED THAT THERE ARE CONTRADICTION S IN THE VALUATION REPORT DATED 11.01.2016 FOR DETERMINATION OF COST OF CONST RUCTION OF HOUSE PROPERTY FOR THE PURPOSE OF CLAIMING DEDUCTION U/S 54F OF TH E ACT AND THE COST OF CONSTRUCTION WAS ESTIMATED AT RS. 10.04 LAKH THEREO F. THE APPELLANT HAS ALSO FILED A COPY OF AGREEMENT DATED 10.05.2006 WITH SHR I BABU KHAN FOR CONSTRUCTION OF HOUSE PROPERTY IN THE LAND AREA OF 183 SQUARE METER FOR A TOTAL CONSIDERATION OF RS. 11 LAKH. IT IS NOTED FROM THE REMAND REPORT OF THE AO THAT VERY NOMINAL ENTRIES WERE REFLECTING IN THE BANK AC COUNT OF THE APPELLANT. FURTHER, AS PER THE APPELLANT ITSELF, OUT OF THE SA LE CONSIDERATION OF RS. 10 LAKH, A SUM OF RS. 5 LAKH WAS RECEIVED IN CASH ONLY. THE BALANCE AMOUNT OF RS. 5 LAKH WAS PAID THROUGH CHEQUE DATED 01.05.2006, HOWE VER, THE SAME WAS NOT CREDITED IN THE BANK ACCOUNT OF THE APPELLANT. THER EFORE, AT THE MOST, THE APPELLANT COULD HAVE INVESTED A SUM OF RS. 5 LAKH O NLY IN THE CONSTRUCTION OF THE HOUSE PROPERTY. FURTHER, THE VALUATION REPORT W AS PREPARED ON 11.01.2016 I.E. ALMOST AFTER A GAP OF 10 YEARS AND SINCE CONTR ADICTIONS WERE THERE, AS HIGHLIGHTED BY THE AO IN HIS REMAND REPORT, IT HAS NO EVIDENTIARY VALUE. THE APPELLANT HAS NOT BROUGHT ON RECORD ANY DOCUMENTARY EVIDENCE WHICH MAY ESTABLISH THAT THE HOUSE PROPERTY UNDER CONSIDERATI ON WAS CONSTRUCTED BY THE APPELLANT DURING THE TIME LIMIT OF TWO YEARS FROM T HE DATE OF SALE OF LAND UNDER ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 8 CONSIDERATION AS PER THE PROVISION OF I.T. ACT. IN VIEW OF THESE FACTS, THE DEDUCTION U/S 54F OF THE ACT COULD NOT BE ALLOWED T O THE APPELLANT. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE FILED THE WRITTEN SUBMISSION INCLUDING THE CASE LAWS AND LAST LY PRAYED THAT THE REASSESSMENT PROCEEDINGS U/S 147/148 SHOULD BE QUAS HED. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ERS OF THE LOWER AUTHORITIES. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THIS CASE, WE FIND THAT THE ASSESSEE HAS SOLD THE PART OF THE AGRICULTURAL LAND FOR RS. 10.00 LACS WH ICH WAS THE VALUE ADOPTED BY THE SUB-REGISTRAR, JAIPUR. IN ASSESSEE'S CASE, THERE WAS NO REFERENCE REGARDING THE VALUATION OF THE PROPERTY B Y THE SUB-REGISTRAR, JAIPUR TO ANY OF THE HIGHER AUTHORITIES. THE ADDITI ON IS BASED ON THE COLLECTOR (STAMPS) VALUATION IN THE CASE OF THREE BOTHERS OF THE ASSESSEE. IN ASSESSEE'S CASE THE SALE CONSIDERATION OF RS. 10 LACS WAS ACCEPTED BY SUB-REGISTRAR IV, JAIPUR. THUS THERE WAS NO ENHANC EMENT IN ASSESSEE'S CASE RATHER THERE IS NO REFERENCE TO THE COLLECTOR (STAMPS) IN ASSESSEE'S CASE. IT IS A SETTLED POSITION OF LAW THAT SECTION 50C IS A DEEMING PROVISION AND SUCH PROVISIONS CANNOT BE INVOKED WHE N THERE WAS NO DIFFERENCE IN SALE CONSIDERATION DECLARED AND VALUE ADOPTED BY REGISTRAR ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 9 OR WHERE NO REFERENCE FOR VALUATING FULL VALUE OF C ONSIDERATION OF PROPERTY TO COLLECTOR (STAMPS). FOR THE SAKE OF CONVENIENCE AND BREVITY OF THE CASE, IT WILL BE PERTINENT TO MENTION THE PROVISION OF SECTION 50 OF THE I.T. ACT, 1961 AS UNDER:- [ SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION I N CERTAIN CASES. 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF A STATE GOV ERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOP TED OR ASSESSED SHALL, FOR THE PURPOSES OF SECTION 48 , BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATI ON RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1), WHERE ( A ) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRAN SFER; ( B ) THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP VA LUATION AUTHORITY UNDER SUB- SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, THE ASSESSING OFFICER MAY REFER THE VALUATION OF TH E CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS MADE, THE P ROVISIONS OF SUB-SECTIONS (2), (3), (4), (5) AND (6) OF SECTION16A, CLAUSE ( I ) OF SUB-SECTION (1) AND SUB-SECTIONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, SECTION 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODIFICATIONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY I N RELATION TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 16A OF THAT ACT. EXPLANATION. FOR THE PURPOSES OF THIS SECTION, VALUATION OFFICE R SHALL HAVE THE SAME MEANING AS IN CLAUSE ( R ) OF SECTION 2 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957). (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB-SECTION (1), THE VALUE SO ADOPTED OR ASSESSED BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE C ONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER.] IT IS PERTINENT TO MENTION THAT ASSESSEE HAD SOLD T HE LAND ON PREVAILING DLC RATE AND SUB-REGISTRAR-IV, JAIPUR HAS ADOPTED T HE SAME WHILE ITA NO.1034/JP/2017 LALLU RAM YADAV VS ITO, WARD- 2 (3), JAIPUR 10 REGISTERING THE DOCUMENTS. THEREFORE, THE ADDITION MADE INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT IS NOT AS PER LAW. IN THIS VIEW OF THE MATTER, THE ADDITION MADE IS DELETED. SINCE, WE HAV E DELETED THE ADDITION, THEREFORE, THE ADDITIONAL GROUND RAISED BY THE ASSE SSEE (SUPRA) BECOMES ACADEMIC AND DOES NOT REQUIRE ANY ADJUDICATION. THU S THE APPEAL OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 -07-2018 . SD/- SD/- FOT; IKY JKO HKKXPUN (VIJAY PAL RAO) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12 /07/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI LALLU RAM YADAV, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2(3), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.1034 /JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR