Sh. Om Parkash, Yamunanagar V. ITO, Yamunanagar

ITA 121/CHANDI/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5236 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 23-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: S K MUKHI
• Keywords: Capital asset; Additional evidence; Fair market value
• Section: 54B; 54F

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 121/CHD/2016 ASSESSMENT YEAR: 2007-08 SH. OM PARKASH, VS. THE ITO, WARD-3, S/O SH. KRISHAN LAL, YAMUNANAGAR VILL JARODI, PO MEHALAWALI, TEHSIL JAGDHRI, DIST. YAMUNANAGR, PAN NO. BCCPP0830J (APPELLANT) (RESPONDENT) APPELLANT BY : SH. S.K. MUKHI RESPONDENT BY : SH. MANJIT SINGH, SR.DR DATE OF HEARING : 08.11.2017 DATE OF PRONOUNCEMENT : 05.02.2018 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S), [HEREINAFTER REFERRED TO AS CIT(A)], PANCHKULA DATED 04.12.2015 . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1. THAT THE IMPUGNED ORDER OR LD. CIT (A) IN CONCURRING WITH THE FINDING OF LD. AO IN CONFIRMIN G THE ORDER U/S 143(3)/I47 OF INCOME TAX ACT, 1961, IS IL LEGAL, UNJUSTIFIED, ERRONEOUS, PERVERSE AND AGAINST THE FA CTS OF THE PRESENT CASE WITHOUT AFFORDING SUFFICIENT OPPOR TUNITY. 2 2. (A) THAT LD. CIT (A) IS NOT JUSTIFIED IN CONFIRM ING THE FINDINGS OF ID. A.O. IN HOLDING THAT THE TRANSF ER OF THE PROPERTY TOOK PLACE DURING THE YEAR UNDER CONSIDERATION BY CONFIRMING THE DATE OF TRANS F E R OF THE AGRICULTURAL LAND AS THE DATE OF REGISTRATION O F THE SALE DEED WHEREIN THE MAJOR AMOUNT OF CONSIDERATION (I.E. 90%) WAS RECEIVED IN THE SUBSEQUENT YEAR WITHOUT APPRECIATING THE CORRECT FACTS OF THE PRESENT CASE AND TERMS AND CONDITIONS OF THE SALE DEED, HENCE, THE FINDINGS OF AUTHORITIE S BELOW ARE BAD IN LAW AND UNCALLED FOR. (B) THAT WITHOUT PREJUDICE TO ABOVE THE LD. CIT (A) IS NOT JUSTIFIED IN CONCURRING WITH THE FINDINGS OF THE LD. AO IN DETERMINING THE LONG TERM CAPITAL GAIN ON THE FULL VALUE OF CONSIDERATION AT RS. 5899334/- INSTEAD OF THE ACTUAL AMOUNT RECEIVED DURING THE YEAR UNDER APPEAL WHICH WAS TO THE EXTENT OF RS. 541557/- AS PART PERFORMANCE WITHOUT APPRECIATING THE CORRECT FACTS OF THE PRESENT CASE, HENCE, THE FINDINGS OF AUTHORITIES BELOW, ARE BAD I N LAW AND UNCALLED FOR. 3. THAT LD. CIT (A) IS NOT JUSTIFIED IN NOT GRANTING EXEMPTION U/S 54B & 54F WHERE THE AMOUNT WAS INVESTED IN AGRICULTURAL AND RESIDENTIAL PROPERTY WITHIN THE PRESCRIBED TIME PERIOD. HENCE THE FINDINGS OF AUTHORITIES BELOW ARE BAD IN LAW AN D UNCALLED FOR. 4. THAT LD. CIT (A) IS NOT JUSTIFIED IN CONCURRING WITH THE FINDINGS OF LD. ASSESSING OFFICER IN ADOPTING/COMPUTING THE FAIR MARKET VALUE OF THE LAND AS ON 01.04.1981 ERRONEOUSLY WITHOUT: APPRECIATING THE FACTS AND VALUE AS DECLARED BY THE APPELLANT WHICH IS ERRONEOUS AND HENCE THE FINDINGS OF THE AUTHORITIES BELOW ARE BAD IN LAW AND UNCALLED FOR. 5. THAT WITHOUT PREJUDICE TO ABOVE, THE CONFIRMATION OF IMPUGNED ADDITION BY THE CIT(A) IS HIGHLY EXCESSIVE AND THUS UNCALLED FOR. 3 3. THE SOLE ISSUE RAISED IN THIS APPEAL IS REGARDING T HE YEAR OF TAXABILITY OF THE CAPITAL GAINS EARNED BY THE ASSES SEE ON THE SALE OF THE LAND. 4. THE ASSESSEE ALONGWITH VARIOUS OTHER PERSONS HAS SOLD HIS LAND TO THE DEVELOPER. A MEAGER PART OF THE SALE CONSIDE RATION WAS RECEIVED BY THE ASSESSEE IN THE YEAR RELEVANT TO AS SESSMENT YEAR 2007- 08 WHEREAS THE REMAINING PART OF THE SALE CONSIDERA TION WAS RECEIVED BY THE ASSESSEE IN THE YEAR RELEVANT TO THE ASSESSM ENT YEAR 2009-10. 5. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNA L IN THE CASE OF SHRI RAJIV KUMAR VS. ITO IN ITA NO. 17/CHD/2016 T O 19/CHD/2016 DATED 29.6.2016 WHEREIN THE TRIBUNAL ON SOMEWHAT SI MILAR FACTS AND CIRCUMSTANCES HAS HELD THAT THERE WAS NO TRANSFER OF CAPITAL ASSETS IN THE ASSESSMENT YEAR 2007-08 AND THAT REVENUE AUTHOR ITIES WERE AT LIBERTY TO CONSIDER THE ISSUE OF ACCRUAL OR RECEIPT OF CAPITAL GAINS IN ASSESSMENT YEAR 2009-10. LD. COUNSEL FOR THE ASSESS EE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAD SOLD THE LAND ALONG WITH THREE PERSONS NAMELY S/SH. MOHAN LAL, RAMJI LAL AND SHRI JAI PAL WHOSE APPEALS ON THE MATTER CAME UP FOR HEARING BEFORE THE SINGLE BENCH OF THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 30.3.201 7 HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. HE, TH EREFORE, HAS PRAYED THAT THE CASE OF THE PRESENT ASSESSEE BE ALSO RESOR TED TO THE FILE OF THE ASSESSING OFFICER FOR ASSESSMENT AFRESH ON SIMILAR LINES. 6. THE LD. DR, HOWEVER, HAS RELIED UPON THE FINDING S OF THE LOWER AUTHORITIES. 4 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E ALSO GONE THROUGH THE SINGLE MEMBER DECISION OF THE TRIBUNAL IN THE CASE OF SH. MOHAN LAL & OTHERS VS. ITO IN ITA NOS. 122/CH D/2016 TO 125/CHD/2016 VIDE ORDER DATED 30.3.2017. THE RELEVA NT PART OF THE ORDER, FOR THE SAKE OF REFERENCE IS REPRODUCED AS U NDER:- 2. THE LD. AR, MR. S.K. MUKHI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE FACTS IN THE CASE OF TH E ASSESSEE ARE IDENTICAL TO WHAT HAS BEEN CONSIDERED BY THE I.T.A. T. IN THE CASE OF SHRI RAJIV KUMAR VS. ITO AND OTHERS IN ITA NOS. 17/CHD/2016 TO 19/CHD/2016 DATED 29.6.2016. THE IT AT CONSIDERING SIMILAR FACTS NAMELY THAT ONLY 10% OF T HE SALE CONSIDERATION AS PER THE SALE DEED DATED 20.3.2007 WAS PARTED WITH IN FAVOUR OF THOSE ASESESSES AND 90% OF THE PA YMENTS WAS MADE IN 2009-10 ASSESSMENT YEAR HAS HELD THAT NO CA PITAL GAIN AROSE IN 2007-08 ASSESSMENT YEAR AND THE CAPITAL GA INS COULD BE CONSIDERED IN 2009-10 ASSESSMENT YEAR ONLY. IT WA S HIS SUBMISSION THAT IN FACTS OF THAT CASE IN 2007-08 AS SESSMENT YEAR, RS. 50 LAKHS WAS RECEIVED IN THE YEAR UNDER C ONSIDERATION AND RS. 2 CRORES WAS RECEIVED IN 2009-10 ASSESSMENT YEAR. REFERRING TO THE FACTS OF THE PRESENT CASE, ATTENTI ON WAS INVITED TO THE FACT THAT THE ASSESSEE SH. MOHAN LAL HAD SOL D 1/8 TH OF HIS SHARE OF LAND IN VILLAGE PARODI, YAMUNANAGAR FOR RS . 3,57,50,000/- ON 20.3.2007 TO M/S GREEN PLANET PVT LTD , NEW DELHI. THE SALE CONSIDERATION COMPRISED OF RS. 4,06,250/- VIDE CHEQUE DATED 20.3.2007 AND RS. 40,62,500/- VIDE UND ATED CHEQUE FROM M/S GREEN PLANET PVT. LTD, NEW DELHI AN D THE PROCEEDS OF THESE CHEQUES WERE REALIZED BY THE ASSE SSEE IN MARCH 2007 AND ON 16.6.2008. IDENTICAL CLAIM OF TH E ASSESSEE THAT THE SALE RECEIPT BY VIRTUE OF THE TWO DIFFEREN T CHEQUES WOULD BE RELEVANT FOR 2007-08 AND 2009-10 ASSESSMENT YEAR S WAS NOT ACCEPTED BY THE ASSESSING OFFICER OR THE CIT (APPEA LS). IIN VIEW OF THE COMPLETE SIMILARITY OF THE FACTS VIS-A- VIS THE ORDER OF THE ITAT, IT WAS HIS SUBMISSION THAT THE ADDITION M AY BE DELETED. IT WAS ALSO HIS SUBMISSION THAT APART FRO M THAT THE ASSESSEE HAD ALSO MADE A CLAIM THAT THE SALE PROCEE DS HAD BEEN APPLIED FOR PURCHASE OF PROPERTY AND THE ISSUE WAS AGITATED BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(A) AS WOULD BE EVIDENT FROM PARA 5 PAGE 5 OF THE IMPUGNED ORDER AND RELIEF U/S 54B AND 54F HAD BEEN CLAIMED THAT NO TAX LIABILITY AROSE. THE ASSESSEE IT WAS SUBMITTED HAD SOUGHT PER MISSION TO PLACE ADDITIONAL EVIDENCE UNDER RULE 46A. HOWEVER, THOUGH THE 5 ARGUMENT OF THE ASSESSEE IS REPRODUCED IN THE SAID PARA, THE CIT(A) REJECTED THE APPLICATION FOR FRESH EVIDENCE CURSORILY. ACCORDINGLY, IT WAS HIS PRAYER THAT THE ISSUE MAY B E REMANDED TO THE ASSESSING OFFICER. 3. THE SR. DR MR. MITTAL SUBMITTED THAT IN THE FACT S AS CONSIDERED IN THE CASE OF SHRI RAJESH KUMAR, ORAL S UBMISSION AS OPPOSED TO DOCUMENTARY EVIDENCE WAS RELIED UPON TO HOLD THAT POSSESSION OF LAND WAS NOT HANDED OVER TO THE DEVEL OPER. IT WAS HIS SUBMISSION THAT THE ASSESSEE MAY BE DIRECTED TO PROVE ITS CLAIM RELYING UPON DOCUMENTARY EVIDENCES. IN THE FA CTS OF THE PRESENT CASE, THE ASSESSEE HAS SOUGHT OPPORTUNITY T O PLACE FRESH EVIDENCES. THUS, IN THE CIRCUMSTANCES HE WOULD HAV E NO OBJECTION IF THE ISSUE IS REMANDED TO THE ASSESSING OFFICER. HOWEVER, ON THE CORRECTNESS OF THE EVIDENCE, IT WAS REQUESTED NO FINDINGS MAY BE GIVEN. THE ISSUE, IT WAS SUBMI TTED MAY BE LEFT OPEN TO THE ASSESSING OFFICER TO CONSIDER AND DECIDE ON FACTS SIMILARLY, QUA THE CLAIM ON THE APPLICABILI TY OF SECTION 54B AND 54F OF THE ACT, IT WAS SUBMITTED THAT THE M ATTER BE REMANDED. HOWEVER, THE ASSESSEE MAY BE DIRECTED T O PLACE FULL AND PROPER FACTS BEFORE THE ASSESSING OFFICER. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT IN RE GARD TO THE SALE DEED, THE SAME IS ALSO ENTERED INTO ON THE VER Y SAME DAY I.E. 20.3.2007, AS CONSIDERED BY THE COORDINATE BEN CH. THE ASSESSEE IS FOUND TO HAVE CLAIMED THAT DURING THE S PECIFIC PERIOD A LOT OF DEVELOPMENTAL ACTIVITY TOOK PLACE IN THIS AREA WHERE GREEN PLANET PVT LTD , NEW DELHI, NEW DELHI WAS ALSO ONE OF THE PLAYERS ENTERING INTO PURCHASES OF LAND. THE MODUS OPERANDI OF THE DEVELOPER AS PER THE CLAIM MADE CONTINUES TO BE THAT A MINOR PAYMENT (ONLY WITH MEAGER ADVANCE) WAS INITIA LLY MADE TO THE PARTIES. IT IS ONLY WHEN ACTUAL POSSESSION OF LAND WAS HANDED OVER THAT FULL PAYMENT WAS RELEASED RESULTIN G IN SALE. ACCORDINGLY, CONSIDERING THE STAND OF THE PARTIES B EFORE THE BENCH, THE ISSUE IS REMANDED BACK TO THE FILE OF TH E ASSESSING OFFICER TO DECIDE THE ISSUE DE-NOVO PERMITTING THE ASSESSEE OPPORTUNITY TO FILE FRESH EVIDENCES IN SUPPORT OF I TS CLAIM. THE ASSESSING OFFICER SHALL ALSO CONSIDER THE ALTERNATE CLAIM OF THE ASSESSEE BY TAKING INTO CONSIDERATION WHATEVER FRE SH EVIDENCES THE ASSESSEE DEEMS IT APPROPRIATE TO FILE IN SUPPOR T OF ITS CLAIM QUA THE RELIEF SOUGHT U/S 54B AND 54F OF THE ACT. 5. SINCE THE FACTS AND CIRCUMSTANCES CONTINUE TO RE MAIN THE SAME IN THE CASES OF THE OTHER CO-OWNERS ALSO, THE SAID ORDERS 6 FOR IDENTICAL REASONS ARE ALSO SET ASIDE AND RESTO RED BACK TO THE FILE OF THE ASSESSING OFFICER WITH IDENTICAL DIRECT IONS. 6. IN THE RESULT, APPEALS OF THE ASSESSES ARE ALLOW ED FOR STATISTICAL PURPOSES. 8. SINCE THE ISSUE RAISED BEFORE US IS SQUARELY COV ERED BY THE ABOVE DECISION OF THE TRIBUNAL AND EVEN THE PRESENT DISPUTE HAS ARISEN OUT OF THE SAME TRANSACTION, IN OUR VIEW, IT WILL BE JUST AND PROPER TO RESTORE THE PRESENT MATTER ALSO TO THE FI LE OF THE ASSESSING OFFICER ON SIMILAR LINES. IN VIEW OF THE ABOVE, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH WITH IDENTICAL DIRECTIONS AS GIVEN IN THE CASE OF SH. M OHAN LAL VS ITO (SUPRA). THE APPEAL OF THE ASSESSEE IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05.02.2018 SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05.02.2018 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR