Sh. Kailash Chand, Yamunanagar V. ITO, Yamunanagar

ITA 126/CHANDI/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5303 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 25-01-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 23-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Assessee Lawyers: S K MUKHI
• Keywords: Capital asset; Additional evidence; Fair market value
• Section: 54B; 54F; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 126/CHD/2016 ASSESSMENT YEAR: 2007-08 SH. KAILASH CHAND VS. THE ITO S/O KRISHAN LAL, WARD-3 VILL- JARODI, P.O. MCHALAWALI YAMUNANAGAR THE: JAGADHRI, YAMUNANAGAR PAN NO. AMEPC8472E (APPELLANT) (RESPONDENT) APPELLANT BY : SH. S.K. MUKHI RESPONDENT BY : SMT. CHANDRAKANTA DATE OF HEARING : 25.01.2018 DATE OF PRONOUNCEMENT : 25.01.2018 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 (APPEALS), [HEREI NAFTER REFERRED TO AS CIT(A)], PANCHKULA DATED 04.12.2015. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE IMPUGNED ORDER OR LD. CIT (A) IN CONCURRING WITH THE FINDING OF LD AO IN CONFIRMING THE ORDER U/S 143(3)/ 147 OF INCOME TAX ACT, 1961, IS ILLEGAL , UNJUSTIFIED, ERRONEOUS, PERVERSE AND AGAINST THE FACTS OF THE PR ESENT CASE WITHOUT AFFORDING SUFFICIENT OPPORTUNITY. 2. (A) THAT LD. CIT (A) IS NOT JUSTIFIED IN CONFIRMING THE FINDINGS OF ID. A.O. IN HOLDING (HAT THE TRANSFER O F THE PROPERTY TOOK PLACE DURING THE YEAR UNDER CONSIDERA TION BY CONFIRMING THE 'DATE OF TRANSFER OF THE AGRICULTURA L LAND AS THE DATE OF REGISTRATION OF THE SALE DEED WHEREIN T HE MAJOR AMOUNT OF CONSIDERATION (I.E. 90%) WAS RECEIV ED IN THE SUBSEQUENT YEAR WITHOUT APPRECIATING THE COR RECT FACTS OF THE PRESENT CASE AND TERMS AND CONDITIONS OF THE SALE DEED, HENCE, 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 LD . AO IN DETERMINING THE LONG TERM CAPITAL GAIN ON THE FULL VALUE OF CONSIDERATION AT RS. 59,58,334/- INSTEAD OF THE ACTUAL AMOUNT RECEIVED DURING THE YEAR UNDER APPEAL WHICH WAS TO THE EXTENT OF RS. 5,41,667/- AS PART PERFORMANCE WITHOUT APPRECIATING THE CORRECT FACTS OF THE PRESENT CASE, HENCE, THE FINDINGS OF AUTHORITIES BE LOW, ARE BAD IN LAW AND UNCALLED FOR. 3. THAT LD CIT (A) IS NOT JUSTIFIED IN NOT GRANTING EXEMPTION U/S 54B & 54F WHERE THE AMOUNT WAS INVE STED IN AGRICULTURAL LAND AND RESIDENTIAL PROPERTY WITH IN THE PRESCRIBED TIME PERIOD. HENCE THE FINDINGS OF AUTH ORITIES BELOW ARE BAD IN LAW AND UNCALLED FOR. 4. THAT LD. CIT (A) IS NOT JUSTIFIED IN CONCURRING WIT H THE FINDINGS OF LD. ASSESSING OFFICER IN ADOPTING / COMPUTING THE FAIR MARKET VALUE OF THE AND AS ON 01.04.1981 ERRONEOUSLY WITHOUT APPRECIATING THE FACTS AND VALU E AS DECLARED BY THE APPELLANT WHICH IS ERRONEOUS AND HE NCE THE FINDINGS OF THE AUTHORITIES BELOW ARE B AD 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. THE SOLE ISSUE RAISED IN THIS APPEAL IS REGARDIN G THE YEAR OF TAXABILITY OF THE CAPITAL GAINS EARNED BY THE ASSES SEE ON THE SALE OF THE LAND. 4. THE ASSESSEE ALONG WITH VARIOUS OTHER PERSONS HAS S OLD HIS LAND TO THE DEVELOPER. A MEAGER PART OF THE ALE CONSIDER ATION WAS RECEIVED BY THE ASSESSEE IN THE YEAR RELEVANT TO ASSESSMENT YEAR 2007- 08 WHEREAS THE REMAINING PART OF THE SALE CONSIDERATIO N WAS RECEIVED BY THE ASSESSEE IN THE YEAR RELEVANT TO THE ASSESSMENT YEAR 2009-10. 5. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HA S 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 TO 19/CHD/2016 DATED 29.6.2016 WHEREIN THE TRIBUNAL ON SOMEWHAT SIMILAR FACTS AND CIRCUMSTANCES HAS HELD THAT THERE WAS NO TRANSFER OF CAPITAL ASSETS IN THE ASSESSMENT YEAR 2007-08 AND THAT REVENUE AUTHORITIES WERE AT LIBERTY TO CONSIDER THE ISSU E OF ACCRUAL OR RECEIPT OF CAPITAL GAINS IN ASSESSMENT YEAR 2009 -10. LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITTED THA T THE ASSESSEE HAD SOLD THE LAND ALONG WITH THREE PERSONS NAMELY S/SH. MOHAN LAL RAMJI LAI AND SHRI JAI PAL WHOSE APPEAL S ON THE MATTER CAME UP FOR HEARING BEFORE THE SINGLE BENCH OF THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 30.3.2017 HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSIN G OFFICER. HE, THEREFORE, HAS PRAYED THAT THE CASE OF THE PRESENT ASSESSEE BE ALSO RESORTED TO THE FILE OF THE ASSESSING OFFICER FOR A SSESSMENT AFRESH ON SIMILAR LINES. 6. THE LD. DR. HOWEVER, HAS RELIED UPON THE FINDINGS O F THE LOWER AUTHORITIES. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE A LSO GONE THROUGH THE SINGLE MEMBER DECISION OF THE TRIBUNAL IN THE CASE OF SH. MOHAN LAL & OTHERS VS. ITO IN ITA NOS. 122/CHD/201 6 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 ITAT CONSIDERING S IMILAR 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 ASSESS MENT YEAR ONLY. IT WAS HIS SUBMISSION THAT IN FACTS OF THAT CASE IN 2007-08 ASSESSMENT YEAR, RS. 50 LAKHS WAS RECEIVED IN THE Y EAR UNDER CONSIDERATION AND RS. 2 CRORES WAS RECEIVED IN 2009 -10 ASSESSMENT YEAR. REFERRING TO THE FACTS OF THE PRESENT CASE, A TTENTION WAS INVITED TO THE FACT THAT THE ASSESSEE SH. MOHAN LAL HAD SOL D 1/8T H OF HIS SHARE OF LAND IN VILLAGE PARODI, YAMUNANAGAER FOR R S. 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 RS. 40,62,500/- VIDE UNDATED CH EQUE FROM M/S GREEN PLANET PVT. LTD, NEW DELHI AND THE PROCEEDS O F THESE CHEQUES WERE REALIZED BY THE ASSESSEE IN MARCH 2007 AND ON 16.6.2008. IDENTICAL CLAIM OF THE ASSESSEE THAT THE SALE RECEI PT BY VIRTUE OF THE TWO DIFFERENT CHEQUES WOULD BE RELEVANT FOR 2007-08 AND 2009-10 ASSESSMENT YEARS WAS NOT ACCEPTED BY THE ASSESSING OFFICER OR THE CIT (APPEALS). IIN VIEW OF THE COMPLETE SIMILARITY OF THE FACTS VIS-A-VIS THE ORDER OF THE ITAT, IT WAS HIS SUBMISS ION THAT THE ADDITION MAY BE DELETED. IT WAS ALSO HIS SUBMISSION THAT APART FROM THAT THE ASSESSEE HAD ALSO MADE A CLAIM THAT THE SA LE PROCEEDS 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 PERMISSION TO PLACE ADDITIONAL EVIDENCE UNDER RULE 46A. HOWEVER, THOUGH THE ARGUME NT OF THE ASSESSEE IS REPRODUCED IN THE SAID PARA, THE CIT(A) REJECTED THE APPLICATION FOR FRESH EVIDENCE CURSORILY. ACCORDING LY, IT WAS HIS PRAYER THAT THE ISSUE MAY BE REMANDED TO THE ASSESS ING OFFICER. 3. THE SR. DR MR. MITTAL SUBMITTED THAT IN THE FACT S AS CONSIDERED IN THE CASE OF SHRI RAJESH KUMAR, ORAL SUBMISSION AS O PPOSED TO DOCUMENTARY EVIDENCE WAS RELIED UPON TO HOLD THAT P OSSESSION OF LAND WAS NOT HANDED OVER TO THE DEVELOPER. IT WAS H IS SUBMISSION THAT THE ASSESSEE MAY BE DIRECTED TO PROVE ITS CLAI M RELYING UPON DOCUMENTARY EVIDENCES. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS SOUGHT OPPORTUNITY TO PLACE FRESH EVIDENCES. TH US, IN THE CIRCUMSTANCES HE WOULD HAVE NO OBJECTION IF THE ISS UE IS REMANDED TO THE ASSESSING OFFICER. HOWEVER, ON THE CORRECTNE SS OF THE EVIDENCE, IT WAS REQUESTED NO FINDINGS MAY BE GIVEN . THE ISSUE, IT WAS SUBMITTED MAY BE LEFT OPEN TO THE ASSESSING OFF ICER TO CONSIDER AND DECIDE ON FACTS SIMILARLY, QUA THE CLAIM ON THE APPLICABILITY OF SECTION 54B AND 54F OF THE ACT, IT WAS SUBMITTED TH AT THE MATTER BE REMANDED. HOWEVER, THE ASSESSEE MAY BE DIRECTED TO 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 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 IS 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 ENTERI NG INTO PURCHASES OF LAND. THE MODUS OPERANDI OF THE DEVELO PER AS PER THE CLAIM MADE CONTINUES TO BE THAT A MINOR PAYMENT (ON LY WITH MEAGER ADVANCE) WAS INITIALLY MADE TO THE PARTIES. IT IS O NLY WHEN ACTUAL POSSESSION OF LAND WAS HANDED OVER THAT FULL PAYMEN T WAS RELEASED RESULTING IN SALE. ACCORDINGLY, CONSIDERING THE STA ND OF THE PARTIES BEFORE THE BENCH, THE ISSUE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE DE-NOVO PERMI TTING THE ASSESSEE OPPORTUNITY TO FILE FRESH EVIDENCES IN SUP PORT OF ITS CLAIM. THE ASSESSING OFFICER SHALL ALSO CONSIDER THE ALTER NATE CLAIM OF THE ASSESSEE BY TAKING INTO CONSIDERATION WHATEVER FRES H 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 ORD ERS FOR IDENTICAL REASONS ARE ALSO SET ASIDE AND RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH IDENTICAL DIRECTIONS. 6. IN THE RESULT, APPEALS OF THE ASSESSES ARE ALLOW ED FOR STATISTICAL PURPOSES. 8. SINCE THE ISSUE RAISED US IS SQUARELY COVERED BY T HE ABOVE DECISION OF THE TRIBUNAL AND EVEN THE PRESENT DISPU TE 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 ISS UE AFRESH WITH IDENTICAL DIRECTIONS AS GIVEN IN THE CASE OF 'SH. MOHAN LAI VS ITO' (SUPRA). THE APPEAL OF THE ASSESSEC IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25.01.2018 SD/- SD/- (DR. B.R.R. KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13.05.2018 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR