Sh. Ram Ji Lal, Yamunanagar V. ITO, Yamunanagar

ITA 123/CHANDI/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8221 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 05-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 23-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence; Set aside; Capital Gains
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 54B; 54F

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 122/CHD/2016 (ASSESSMENT YEAR: 2007-08) SHRI MOHAN LAL, VS. THE ITO, WARD-3, YAMUNANAGAR YAMUNANAGAR PAN NO. AEYPL6220P ITA NO. 123/CHD/2016 ASSESSMENT YEAR: 2007-08 SHRI RAM JI LAL, VS. THE ITO, WARD-3, YAMUNANAGAR YAMUNANAGAR PAN NO. AEYPL7850H ITA NO. 124/CHD/2016 ASSESSMENT YEAR: 2007-08 SHRI JAI PAL, VS. THE ITO, WARD-3, YAMUNANAGAR YAMUNANAGAR PAN NO. BCFPP9327M & ITA NO. 125/CHD/2016 ASSESSMENT YEAR: 2007-08 SHRI SHYAM LAL, VS. THE ITO, WARD-3, YAMUNANAGAR YAMUNANAGAR PAN NO. AEYPL6219C (APPELLANT) (RESPONDENT) APPELLANT BY : SH. S.K. MUKHI RESPONDENT BY : SH. S.K. MITTAL DATE OF HEARING : 22.02.2017 DATE OF PRONOUNCEMENT : 30.03.2017 ORDER BY THESE FOUR APPEALS, THE ASSESSEES WHO WERE CO- OWNERS IN THE SPECIFIC PIECE OF LAND, ASSAIL THE CORRECTNESS OF THE SEPARATE ORDERS DATED 4.12.2015 PASSED BY CIT(A), PANCHKULA IN 2007-08 ASSESSMENT YEAR ON IDENTICAL ISSUES. FOR THE SAKE OF CONVENIENCE, THE FACTS FROM ITA NO. 122/CHD/2016 ARE BEING REFER RED TO WHEREIN THE GROUNDS RAISED READ AS UNDER:- 1. THAT THE IMPUGNED ORDER OF LD. CIT (A) IN CONCU RRING WITH THE FINDING OF LD. AO IN CONFIRMING THE ORDER U/S 143(3 ) / 147 OF THE INCOME-TAX ACT, 1961, IS ILLEGAL, UNJUSTIFIED, ERR ONEOUS, PERVERSE AND 2 AGAINST THE FACTS OF THE PRESENT CASE WITHOUT AFFOR DING SUFFICIENT OPPORTUNITY. 2. (A) THAT LD. CIT (A) IS NOT JUSTIFIED IN CONFIRM ING THE FINDINGS OF LD. A.O IN HOLDING THAT THE TRANSFER OF THE PROPERTY TO OK PLACE DURING THE YEAR UNDER CONSIDERATION BY CONFIRMING THE DATE OF TRANSFER OF THE AGRICULTURAL LAND AS THE DATE OF REGISTRATION OF TH E SALE DEED WHEREIN THE MAJOR AMOUNT OF CONSIDERATION (I.E. 90%) WAS RE CEIVEDIN THE SUBSEQUENT YEAR WITHOUT APPRECIATING THE CORRECT FA CTS OF THE PRESENT CASE AND TERMS AND CONDITIONS OF THE SALE DEED, HEN CE THE FINDINGS OF AUTHORITIES 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 ID. AO IN DETER MINING THE LONG TERM CAPITAL GAIN ON THE FULL VALUE OF CONSIDERATION AT RS. 44,68,700/- INSTEAD OF THE ACTUAL AMOUNT RECEIVED DURING THE YEAR UNDER APPEAL WHICH WAS TO THE EXTENT OF RS. 4,06,250/- A S PART PERFORMANCE WITHOUT APPRECIATING THE CORRECT FACTS OF THE PRESE NT CASE, HENCE THE FINDINGS OF AUTHORITIES BELOW ARE BAD IN LAW AND UN CALLED FOR. 3 THAT LD. CIT(A) IS NOT JUSTIFIED IN NOT GRANTING EXEMPTION U/S 54B AND 54F WHERE THE AMOUNT WAS INVESTED IN AGRICULTU RAL LAND AND RESIDENTIAL PROPERTY WITHIN THE PRESCRIBED TIME PER IOD, HENCE, THE FINDINGS OF AUTHORITIES BELOW ARE BAD IN LAW AND UNCALLED FO R. 4. THAT LD. CIT (A) IS NOT JUSTIFIED IN CONCURRING WITH THE FINDINGS OF THE AO IN ADOPTING/COMPUTING THE FAIR M ARKET VALUE OF THE LAND AS ON 01.04,1981 ERRONEOUSLY WITHOUT APPRECIAT ING THE FACTS AND VALUE AS DECLARED BY THE APPELLANT WHICH IS ERRONEO US AND HENCE THE FINDINGS OF THE AUTHORITIES BELOW ARE BAD IN LAW AN D UNCALLED FOR. 5. THAT WITHOUT PREJUDICE TO ABOVE, THE CONFIRMATIO N OR IMPUGNED ADDITION BY THE CIT(A) IS HIGHLY EXCESSIVE AND THUS UNCALLED FOR. 2. THE LD. AR, MR. S.K. MUKHI APPEARING ON BEHALF O F 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 ITAT CONSIDERING SIMILAR FACTS NAMELY THAT ONLY 10% OF THE SALE CONSIDERATION AS P ER THE SALE DEED DATED 20.3.2007 WAS PARTED WITH IN FAVOUR OF THOSE ASESESSES AND 90% OF THE PAYMENTS WAS MADE IN 2009-10 ASSESSMENT YEAR HAS HELD THAT NO CAPITAL GAIN AROSE IN 2007-08 ASSESSMENT YE AR AND THE CAPITAL GAINS COULD BE CONSIDERED IN 2009-10 ASSESSMENT YEA R ONLY. IT WAS HIS SUBMISSION THAT IN FACTS OF THAT CASE IN 2007-0 8 ASSESSMENT YEAR, RS. 50 LAKHS WAS RECEIVED IN THE YEAR UNDER CONSIDE RATION AND RS. 2 CRORES WAS RECEIVED IN 2009-10 ASSESSMENT YEAR. RE FERRING TO THE FACTS OF THE PRESENT CASE, ATTENTION WAS INVITED TO THE FACT THAT THE ASSESSEE SH. MOHAN LAL HAD SOLD 1/8 TH OF HIS SHARE OF LAND IN VILLAGE PARODI, YAMUNANAGAER FOR RS. 3,57,50,000/- ON 20.3 .2007 TO M/S GREEN PLANET PVT LTD , NEW DELHI. THE SALE CONSIDERATION COMPRISED 3 OF RS. 4,06,250/- VIDE CHEQUE DATED 20.3.2007 AND R S. 40,62,500/- VIDE UNDATED CHEQUE FROM M/S GREEN PLANET PVT. LTD , NEW DELHI AND THE PROCEEDS OF THESE CHEQUES WERE REALIZED BY THE ASSESSEE IN MARCH 2007 AND ON 16.6.2008. IDENTICAL CLAIM OF TH E ASSESSEE THAT THE SALE RECEIPT BY VIRTUE OF THE TWO DIFFERENT CHE QUES WOULD BE RELEVANT FOR 2007-08 AND 2009-10 ASSESSMENT YEARS W AS NOT ACCEPTED BY THE ASSESSING OFFICER OR THE CIT (APPEALS). IIN VIEW OF THE COMPLETE SIMILARITY OF THE FACTS VIS-A-VIS THE ORDE R OF THE ITAT, IT WAS HIS SUBMISSION THAT THE ADDITION MAY BE DELETED . IT WAS ALSO HIS SUBMISSION THAT APART FROM THAT THE ASSESSEE HAD AL SO MADE A CLAIM THAT THE SALE PROCEEDS HAD BEEN APPLIED FOR PURCHAS E 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 T HAT NO TAX LIABILITY AROSE. THE ASSESSEE IT WAS SUBMITTED HAD SOUGHT PERMISSION TO PLACE ADDITIONAL EVIDENCE UNDER RULE 46A. HOWEVE R, THOUGH THE ARGUMENT OF THE ASSESSEE IS REPRODUCED IN THE SAID PARA, THE CIT(A) REJECTED THE APPLICATION FOR FRESH EVIDENCE CURSORI LY. ACCORDINGLY, IT WAS HIS PRAYER THAT THE ISSUE MAY BE REMANDED TO TH E ASSESSING OFFICER. 3. THE SR. DR MR. MITTAL SUBMITTED THAT IN THE FACT S AS CONSIDERED IN THE CASE OF SHRI RAJESH KUMAR, ORAL SUBMISSION A S OPPOSED TO DOCUMENTARY EVIDENCE WAS RELIED UPON TO HOLD THAT P OSSESSION OF LAND WAS NOT HANDED OVER TO THE DEVELOPER. IT WAS HIS SU BMISSION THAT THE ASSESSEE MAY BE DIRECTED TO PROVE ITS CLAIM RELYING UPON DOCUMENTARY EVIDENCES. IN THE FACTS OF THE PRESENT CASE, THE AS SESSEE HAS SOUGHT OPPORTUNITY TO PLACE FRESH EVIDENCES. THUS, IN THE CIRCUMSTANCES HE WOULD HAVE NO OBJECTION IF THE ISSUE IS REMANDED TO THE ASSESSING OFFICER. HOWEVER, ON THE CORRECTNESS OF THE EVIDEN CE, IT WAS REQUESTED NO FINDINGS MAY BE GIVEN. THE ISSUE, IT WAS SUBMITTED MAY BE LEFT OPEN TO THE ASSESSING OFFICER TO CONSID ER 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 MATTE R BE REMANDED. HOWEVER, THE ASSESSEE MAY BE DIRECTED TO PLACE FULL AND PROPER FACTS BEFORE THE ASSESSING OFFICER. 4 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT IN REGARD TO T HE SALE DEED, THE SAME IS ALSO ENTERED INTO ON THE VERY SAME DAY I.E. 20.3.2007, AS CONSIDERED BY THE COORDINATE BENCH. THE ASSESSEE I S FOUND TO HAVE CLAIMED THAT DURING THE SPECIFIC PERIOD A LOT OF DE VELOPMENTAL 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 MEA GER ADVANCE) WAS INITIALLY MADE TO THE PARTIES. IT IS ONLY WHEN ACT UAL POSSESSION OF LAND WAS HANDED OVER THAT FULL PAYMENT WAS RELEASED RESULTING IN SALE. ACCORDINGLY, CONSIDERING THE STAND OF THE PA RTIES BEFORE 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 ITS CLAIM. THE ASSESSING OFFICER SHALL ALSO CONSIDER THE ALTERNATE CLAIM OF THE ASSE SSEE BY TAKING INTO CONSIDERATION WHATEVER FRESH EVIDENCES THE ASSESSEE DEEMS IT APPROPRIATE TO FILE IN SUPPORT 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 FOR IDENTICAL REASONS ARE ALSO SET ASIDE AND RESTORED BACK TO TH E FILE OF THE ASSESSING OFFICER WITH IDENTICAL DIRECTIONS. 6. IN THE RESULT, APPEALS OF THE ASSESSES ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER RKK/RATI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR