ACIT, Panipat V. Smt. Krishna Chopra, Noida

ITA 1163/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2623 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 21-03-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 06-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: SUMAN CHOPRA
• Keywords: Capital asset; Opportunity of being heard; Fair market value
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER & SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO. 1163/DEL/2012 ASSESSMENT YEAR: 2005-06 ACIT, PANIPAT CIRCLE, PANIPAT. VS. KRISHNA CHOPRA, THROUGH L/S. MS. AMBICA MENGI, A-738, SECTOR-19, NOIDA. PAN NO. AAQPC2980H (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SATPAL SINGH, DR RESPONDENT BY : SUMAN CHOPRA O R D E R PER S.V. MEHROTRA, A.M. THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER PASSED BY THE LD. CIT(A) DATED 19.12.2011 FOR A.Y. 2005-06 . 2. THE ASSESSEE HAD FILED RETURN OF INCOME DECLARIN G NET TAXABLE INCOME OF RS. 1,10,870/-. THE ASSESSEE DERIVED INCOME FRO M SALARY, RENTAL INCOME AND INCOME FROM OTHER SOURCES. THE ASSESSEE HAD AL SO SHOWN CAPITAL LOSS ON SALE OF AGRICULTURAL LAND SITUATED AT VILLAGE AZ IZULAPUR DISTT. PANIPAT OF RS. 22,37,300/-. THE ASSESSING OFFICER REFERRED TH E MATTER TO DVO WHO ITA NO. 1163/D/2012 2 VALUED THE COST OF LAND AS ON 01/04/1981 AT RS. 4,2 6,200/- FOR 47 KARNAL 7 MARLA AND SALE HAD BEEN VALUED AT RS. 1,83,48,100/- AS ON 28.02.2005 AS AGAINST THE DECLARED CONSIDERATION OF RS. 1,07,28,0 00/- AS ON 28.02.2005. AFTER GIVING OPPORTUNITY TO ASSESSEE, THE AO CALCUL ATED THE LONG TERM CAPITAL GAIN AT RS. 1,63,02,365/-. THE ORDER OF AO WAS CHALLENGED BEFORE THE CIT(A) WHO CONFIRMED THE ORDER OF THE AO. THE ASSESSEE CHALLENGED THE ORDER OF CIT(A) BEFORE THE ITAT WHICH RESTORED THE MATTER BACK TO THE FILE OF CIT(A) VIDE ITS ORDER DATED 24.12.2009 WITH THE FOLLOWING OBSERVATIONS, AS REPRODUCED IN LD. CIT(APPEALS) ORD ER: IN THE CIRCUMSTANCES STATED ABOVE, WE THEREFORE, FIND IT FIT AND PROPER THAT MATTER SHOULD GO BACK T O THE FILE OF LD. CIT(A) FOR HIS FRESH ADJUDICATION AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. BE IT STATED HERE THAT THE ASSESSEE HAS IN THE MEAN TIME EXPIRED AND IS BEING REPRESENTED BY HER THREE LEGAL HEIRS AND SUCCESSORS. NAMES AND ADDRESS OF THE LEG AL HEIRS AND SUCCESSORS AS PROVIDED TO THE REGISTRY AR E GIVEN BELOW: I. MS. AMBICA MENGI, A-738, SECTOR-19, NOIDA- 201301; II. SMT. SUMAN CHOPRA, 703, 7 TH FLOOR, MEDITECH APARTMENTS, FLAT NO. 59, SECTOR-56, GURGAON AND; III. SHRI RAJAN CHOPRA, 114 GODAWARI APARTMENTS, NEW DELHI. ITA NO. 1163/D/2012 3 3. BEFORE LD. CIT(A), THE LEGAL HEIR SUBMITTED THAT NO OPPORTUNITY WAS AFFORDED BY THE AO BEFORE FINALIZING THE ASSESSMENT . LD. CIT(A) THEREFORE, REMANDED THE MATTER TO AO AND AFTER CONSIDERING THE REMAND REPORT, WHICH HAS BEEN REPRODUCED IN DETAIL IN HIS ORDER, OBSERVE D IN PARA 1.05 AS UNDER: 1.05 IN VIEW OF THE FACTS DISCUSSED ABOVE, THE ISSUES TO BE DECIDED ARE AS UNDER: I. WHETHER THE LAND SOLD WAS CAPITAL ASSET IN VIEW OF SECTION 2(14) OF THE ACT,/AND; II. THAT THE RATE OF THE LAND SOLD AS ON 01.04.1981 AND AS ON 28.02.2005, I.E., THE DATE OF SALE. 4. AS FAR AS THE FIRST ISSUE IS CONCERNED, THERE IS NO DISPUTE AS THE AGRICULTURAL LAND SOLD BY THE ASSESSEE WAS CAPITAL ASSET. 5. AS FAR AS THE SECOND ISSUE IS CONCERNED, THE ONL Y DISPUTE BEFORE US IS REGARDING SALE CONSIDERATION AS DISCLOSED BY ASSESS EE. LD. CIT(A) HAS REPRODUCED THE CONTENTS OF REMAND REPORT IN PARA 1. 10 OF HIS ORDER, WHICH READS AS UNDER: AS DISCUSSED ABOVE, THAT THE MATTER WAS REMANDED TO THE AO FOR COLLECTING THE INFORMATION FROM THE S UB- REGISTRAR OF THAT AREA TO ASCERTAIN THE FMV OF THE LAND. THE RELEVANT PARA 2 FROM THE REPORT DATED 8/ 9 NOV. 2011 OF THE AO IS REPRODUCED BELOW: IN THIS CONNECTION, IT IS SUBMITTED THAT CIRCLE/COLLECTOR RATE OF LAND SITUATED AT VILLAGE AZIZULAPUR HAS BEEN CALLED VIDE THIS OFFICE LETTER DATED 01.11.2011 FROM THE REGISTRAR PANIPAT I.E. ITA NO. 1163/D/2012 4 REGISTERING AUTHORITY. THE REGISTRAR, PANIPAT VIDE THIS OFFICE LETTER NO. 184/RC DATED 03.11.2011 HAS FURNISHED THE COLLECTOR RATE OF LAND SITUATED AT VILLAGE AZIZULAPUR (COPY ENCLOSED). FROM THE ABOVE, THE COLLECTOR, PANIPAT HAS APPLIED TWO RATE FOR REGISTRATION OF LAND OF ABOVE SAID VILLAGE I.E. ONE SPECIFIED NUMBERS OF MURRUBA MARKED BY THE COLLECTOR FROM 01.04.2003 TO 13.09.2004 AND RS. 5,75,000/- FROM 13.09.2004 TO 31.03.2005 SPECIFIED MARK LAND. THE OTHER ONE IS RATE FOR NON-SPECIFIED LAND OF WHICH ARE NOT SPECIALLY MARKED BY THE DIRECTOR COLLECTOR OF VILLAGE AZIZULAPUR I.E. RS. 2,40,000/- FROM 01.04.2003 TO 13.09.2004 AND RS. 2,80,000/- FROM 13.09.2004 TO 31.03.2005 WHICH IS LESS THAN THE SPECIFIED RATES. WHEREAS ON THE OTHE R HAND THE ASSESSEE HAS SOLD HER LAND ON 28.02.2005 @ 18.90 LACS PER ACE WHICH IS MUCH HIGHER THAN THE SPECIFIED RATES BY THE DISTT. COLLECTOR. AS FAR AS THE VARIATION OF RATES IS CONCERNED, NO ONE CAN SELL HI S LAND BELOW THE RATES FIXED BY THE DISTT. COLLECTOR. HOWEVER, ONE CAN SELL HIS LAND AT ANY RATE/AMOUNT OVER AND ABOVE THE COLLECTOR RATE AS PER AGREEMENT. THE GOVERNMENT AGENCY ACQUIRES THE LAND AT THE RATES FIXED BY THE DISTT. COLLECTOR AND THE PRIVATE COLONIZER GENERALLY PURCHASES LAND AS PER MARKET VALUE. 6. FROM THE ABOVE, IT IS EVIDENT, THAT THE SALE CON SIDERATION DISCLOSED BY THE ASSESSEE WAS MUCH HIGHER THAN THE RATES SPECIFI ED BY THE DISTRICT COLLECTOR FOR THE LAND SITUATED IN VILLAGE AZIZULAP UR AND THE RATES AT WHICH THE LAND WAS REGISTERED AT THAT TIME. THE CONCLUSI ON OF LD. CIT(A) THAT THE RATE AT WHICH THE LAND WAS SOLD BY THE ASSESSEE IS TO BE TAKEN AS FAIR ITA NO. 1163/D/2012 5 MARKET VALUE OF THE LAND DOES NOT CALL FOR ANY INTE RFERENCE IN VIEW OF THE AOS REMAND REPORT. 7. WE, ACCORDINGLY, CONFIRM THE ORDER OF LD. CIT(A) . 8. IN THE RESULT, THE DEPARTMENTS APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/04/2013 SD/- SD/- (A.D. JAIN) JUDICIAL MEMBER (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 09/04/2013 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER ASSISTANT REGISTRAR