Shri Rajendra N.Patel, Ahmedabad V. The Income tax Officer,(OSD)Range-9, Ahmedabad

ITA 131/AHD/2011

• Counselvise Citation: 13120514 RSA 2011
• Duration Of Justice: 3 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 19-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIVEK OZA
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO.131/AHD/2011 A.Y. 2007-08 RAJENDRA N. PATEL, PROP. OF M/S. VAISHALI HOUSING CORPORATION, MAKARBA, AHMEDABAD. PAN: AGCPP 9224D VS INCOME TAX OFFICER (OSD), RANGE 9, AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI VIVEK OZA, SR.D.R., ASSESSEE(S) BY : SHRI TEJ SHAH / DATE OF HEARING : 19/05/2014 / DATE OF PRONOUNCEMENT: 30/05/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FRO M THE ORDER OF LEARNED CIT(A)-XV, AHMEDABAD, DATED 30 TH NOVEMBER, 2010. THE GROUNDS AS WELL AS ADDITIONAL GROUNDS RAISED BY THE APPELLANT ARE REPRODUCED BELOW: 1. THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACT S OF THE CASE IN DISMISSING THE APPEAL OF THE APPELLANT. 2. THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ORDER OF THE AO WHO COMPUTED THE LON G-TERM CAPITAL GAIN AT RS.42,46,132 AS AGAINST LONG TERM CAPITAL LOSS DECL ARED BY THE ASSESSEE AT RS.53,906/-. 3. THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION ON ACCOUNT OF LONG TERM CAP ITAL GAIN BY INVOKING THE PROVISION OF SEC. 50C OF THE INCOME TAX ACT. 4. THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS OF THE CASE IN NOT REFERRING THE MATTER TO THE DVO AS REQUIRED U/S.50 C(2) OF THE ACT. 5. THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING INTEREST CHARGE U/S.234B AND 234C OF THE ACT. ITA NO.131/AHD/2011 RAJENDRA N. PATEL VS. ITO (OSD), AHMEDABAD. A.Y.2007-08 - 2 - ADDITIONAL GROUNDS OF APPEALS (NOT RAISED BEFORE TH E CIT(A) 6. THE ASSESSMENT FRAMED U/S.143(3) IS BAD IN LAW A S NO NOTICE IS ISSUED U/S.143(2) WITHIN A PERIOD OF 12 MONTHS FROM THE EN D OF THE MONTH IN WHICH THE RETURN WAS FILED. 7. THE ASSESSING OFFICER ERRED IN LAW AND ON THE FA CTS OF THE CASE IN CHARGING THE CAPITAL GAINS ON TRANSFER OF THE LAND FOR THE A.Y. 2007-08 WHEREAS THE SAME IS CHARGEABLE FOR THE YEAR 2006-07 AS THE ASSESSEE ENTERED INTO A PART PERFORMANCE OF THE CONTRACT WITHIN THE MEANING OF SEC. 53A OF THE TRANSFER OF THE PROPERTY ACT DURING THE FINANCIAL Y EAR 2005-06 RELEVANT TO A.Y.2006-07 AND WHICH IS TRANSFER WITHIN THE MEANIN G OF SEC. 2(47) OF THE ACT. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) DATED 15.12.2009 WERE THAT THE AS SESSEE IN INDIVIDUAL CAPACITY HAS FILED THE RETURN OF INCOME ON 31 ST OF JULY, 2007 DECLARING INCOME / LOSS OF RS. -1,94,510/-. THE ASSESSEE HAS ALSO DISCLOSED A SHORT TERM CAPITAL GAIN OF RS.6,53,902/- AND A LONG TERM CAPITAL LOSS OF RS. (-53,906/-). THE ISSUE BEFORE US IS IN RESPECT OF L ONG TERM CAPITAL LOSS OF RS. -53,906/- INCURRED BY THE ASSESSEE ON SALE O F LAND ADMEASURING 3902 SQ. YARDS, AS MENTIONED BY THE AO. 2.1 IN RESPECT OF THE ADDITIONAL GROUND CHALLENGING THE VALIDITY OF A NOTICE U/S. 143(2), FACTS WERE THAT A NOTICE U/S.14 3(2) WAS ISSUED ON 16.09.2008. THE ASSESSEE HAS CHALLENGED THAT SINCE THE RETURN WAS FILED ON 31.07.2007 AND NOTICE U/S.143(2) WAS ISSUED ON 1 6.09.2008, THEREFORE, THE SAME WAS NOT WITHIN THE PERIOD PRESCRIBED UNDER THE ACT. ON THIS ISSUE, WE HAVE HEARD BOTH THE SIDES AND THEREUPON W E HAVE CONFRONTED THE APPELLANT VIDE AN ORDER-SHEET ENTRY DATED 09.0 4.2014 THAT ON IDENTICAL FACTS AN ORDER HAS BEEN PRONOUNCED BY HONBLE PUNJA B AND HARYANA HIGH COURT IN THE CASE OF AMARJEET SINGH, 347 ITR 585 (P&H) . IN VIEW OF THE ABOVE ORDER OF THE HONBLE HIGH COURT, LEARNED AR M R. TEJ SHAH HAS ITA NO.131/AHD/2011 RAJENDRA N. PATEL VS. ITO (OSD), AHMEDABAD. A.Y.2007-08 - 3 - FAIRLY EXPRESSED THAT THE ISSUE IN HAND CAN NOW BE DECIDED ACCORDINGLY. FOR READY REFERENCE, IT IS WORTH TO REPRODUCE THE R ELEVANT PORTION OF THE SAID JUDGMENT. ON A WRIT PETITION AGAINST A NOTICE UNDER SECTION 143(2) OF THE INCOME-TAX ACT, 1961, ON THE GROUND THAT IT WAS BARRED BY LIMI TATION AND THAT THE AUTHORITY AT JALANDHAR HAD NO JURISDICTION TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT AFTER ISSUANCE OF NOTIFICATION DA TED SEPTEMBER 28, 2007. HELD, DISMISSING THE PETITIONS, (I) THAT UNDER SECT ION 143(2) OF THE ACT, LIMITATION FOR ISSUING NOTICE WAS 12 MONTHS FROM TH E END OF THE MONTH IN WHICH THE RETURN WAS FILED. IN THE PRESENT CASE, TH E RETURN WAS FILED ON JULY 31, 2007AND LIMITATION FOR ISSUANCE OF NOTICE UNDER SEC TION 143(2) OF THE ACT WAS UP TO JULY 31, 2008. HOWEVER, BY VIRTUE OF AMENDMEN T BY THE FINANCE ACT, 2008, WITH EFFECT FROM APRIL 1,2008, LIMITATION STO OD EXTENDED UP TO SIX MONTH FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RET URN WAS FURNISHED, I.E., UP TO SEPTEMBER 30, 2008. THE NOTICE WAS ISSUED ON SEPTEM BER 17, 2008, AND HENCE WAS VALID. 3. IT IS WORTH TO MENTION THAT THE SAID PROVISO WAS SUBSTITUTED BY FINANCE ACT, 2008 W.E.F. 1.4.2008 AND THE YEAR UNDE R CONSIDERATION, I.E., A.Y. 2007-08 IS COVERED BY THE SAID AMENDMENT BECAU SE THE NOTICE U/S.143(2) WAS ISSUED AFTER 01.04.2008. THE AMENDME NT BEING A PROCEDURAL ASPECT HENCE TO BE FOLLOWED BY THE REVEN UE DEPARTMENT AFTER INCORPORATION. IT IS ALSO WORTH TO MENTION THAT DUE TO THE SAID AMENDMENT NO NOTICE U/S.143(2) COULD BE SERVED UPON THE ASSES SEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF FINANCIAL YEAR IN WHICH THE RETURN WAS FURNISHED. AS WE HAVE NOTED THE RETURN WAS FURNISHE D ON 31 ST JULY, 2007, THEREFORE, THE FINANCIAL YEAR HAD ENDED ON 31 ST MARCH, 2008. THE SIXTH MONTH FROM THE END OF THE SAID FINANCIAL YEAR WAS E XPIRING ON 31 ST SEPTEMBER, 2008. HOWEVER, THE NOTICE WAS SERVED U/S . 143(2) ON 16.09.2008; THEREFORE THE NOTICE IN QUESTION WAS VE RY MUCH WITHIN THE TIME PRESCRIBED. THE OLD PROVISIONS WERE NOT APPLIC ABLE WHEREIN IT WAS PRESCRIBED THAT NO NOTICE U/S.143(2) SHALL BE SERVE D ON THE ASSESSEE AFTER ITA NO.131/AHD/2011 RAJENDRA N. PATEL VS. ITO (OSD), AHMEDABAD. A.Y.2007-08 - 4 - THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH I N WHICH THE RETURN WAS FURNISHED. WE HEREBY HOLD THAT SINCE A PROCEDUR E HAS BEEN LAID DOWN WHICH WAS EFFECTIVE FROM 1 ST APRIL, 2008, THEREFORE IT IS EXPECTED FROM THE REVENUE DEPARTMENT TO FOLLOW THE SAID PROCEDURE, ES PECIALLY THE ISSUANCE OF NOTICE U/S.143(2) OF IT ACT. SINCE, THE AO HAS RIGHTLY FOLLOWED THE PROCEDURE BY ISSUING A NOTICE U/S.143( 2) WITHIN THE TIME PRESCRIBED UNDER THE PROVISO TO SECTION 143(2), THE REFORE THERE IS NO SUBSTANCE IN THIS ADDITIONAL GROUND OF THE ASSESSEE . 4. BEFORE WE PART WITH THIS ISSUE, FOR THE SAKE OF COMPLETENESS OF THE RECORD, WE HEREBY MENTION THAT EARLIER AN ORDER WAS PASSED BY A RESPECTED CO-ORDINATE BENCH C AHMEDABAD IN THIS V ERY CASE, I.E., ITA NO.131/AHD/11 (A.Y.2007-08) ORDER DATED 30 TH SEPTEMBER, 2011 WHEREIN THE IMPUGNED NOTICE WAS HELD AS BARRED BY LIMITATIO N, BUT LATER ON THAT ORDER OF THE TRIBUNAL WAS RECALLED BY ITAT C BENC H IN M.A. NO.30/AHD/2012 (ARISING OUT OF ITA NO.131/AHD/2011) DATED 28.09.2012. SINCE, THE SAID EARLIER ORDER OF THE TR IBUNAL DATED 30 TH OF SEPTEMBER, 2011 WAS RECALLED BY AN ORDER DATED 28.0 9.2012 HENCE AGAIN THIS VERY APPEAL WAS FIXED FOR HEARING AND PRESENTL Y UNDER CONSIDERATION. 5. WE, THEREFORE, CONCLUDE THAT THE LIMITATION PRES CRIBED AS PER THE AMENDED PROVISIONS IS 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED AND BECAUSE THE IMPUGNED NOTICE 14 3(2) WAS ISSUED/ SERVED WITHIN THE SAID PRESCRIBED LIMIT; HENCE, THE ISSUANCE OF NOTICE IS HEREBY UPHOLD AND THIS GROUND OF THE ASSESSEE IS DI SMISSED. ITA NO.131/AHD/2011 RAJENDRA N. PATEL VS. ITO (OSD), AHMEDABAD. A.Y.2007-08 - 5 - 6. THE ASSESSEE HAS ALSO RAISED ANOTHER ADDITIONAL GROUND, I.E., GROUND NO.7 CHALLENGING THE ACTION OF THE AO FOR A.Y.2007- 08 FOR CHARGING THE CAPITAL GAIN. FACTS IN THIS CONNECTION HAVE BEEN CA REFULLY PERUSED AND NOTED THAT THE SALE DEED WAS REGISTERED ON 26.07.20 06, THEREFORE, THE ACCOUNTING PERIOD ENDED ON 31 ST OF MARCH, 2007 HENCE THE ASSESSMENT YEAR OUGHT TO BE A.Y.2007-08. 7. BUT ACCORDING TO LEARNED AR, MR. TEJ SHAH, AS PE R AGREEMENT TO SELL DATED 4 TH APRIL, 2005 IT WAS MENTIONED THAT, QUOTE ON RECE IPT OF THE ENTIRE SALE CONSIDERATION AMOUNT OF THE SAID PROPER TY, POSSESSION OF THE SAID LAND WOULD BE HANDED OVER TO THE PURCHASER, U NQUOTE. LEARNED AR HAS ALSO INFORMED THAT THE TOTAL AMOUNT OF CONSIDER ATION OF RS.45 LACS WAS RECEIVED BY THE ASSESSEE UPTO JULY, 2005, THERE FORE, THE RELEVANT FINANCIAL YEAR WAS 2005-06 IN WHICH THE AMOUNT OF C ONSIDERATION WAS FINALLY RECEIVED AND THE POSSESSION WAS HANDED OVER . THE DATE-WISE DETAIL OF THE PAYMENTS WAS REFERRED FROM PAGE 19 OF THE SA LE DEED EXECUTED ON 26 TH DAY OF JULY, 2006. 8. REVENUE HAS OBJECTED THE ABOVE SUBMISSION OF THE ASSESSEE PRIMARILY ON THE GROUND THAT ONCE A SALE DEED WAS R EGISTERED ON 26 TH DAY OF JULY, 2006 THEN THE ACCOUNTING PERIOD HAD ENDED ON 31 ST OF MARCH, 2007, THEREFORE, THE CORRECT ASSESSMENT YEAR WAS A. Y.2007-08 IN WHICH THE AO HAS RIGHTLY ASSESSED THE CAPITAL GAIN. 9. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE FIND FORCE IN THE SUBMISSIONS OF THE REVENUE DEPARTMENT BECAUSE A S PER SECTION 2(47) THE DEFINITION OF THE WORD TRANSFER IN RELATION T O A CAPITAL ASSET INCLUDES ITA NO.131/AHD/2011 RAJENDRA N. PATEL VS. ITO (OSD), AHMEDABAD. A.Y.2007-08 - 6 - SALE, EXCHANGE, AND RELINQUISHMENT OF THE ASSET. TH IS IS A CASE OF A TRANSFER OF AN IMMOVABLE PROPERTY. AN IMMOVABLE PRO PERTY CAN ONLY BE TRANSFERRED THROUGH A REGISTERED SALE DEED. IN THE PRESENT CASE, THE SALE DEED WAS EXECUTED ON 26 TH JULY, 2006 AND THEREUPON THAT AS PER CLAUSE 17, PAGE 16 OF THE SAID SALE DEED DATED 26 TH JULY, 2006 IT WAS CLEARLY MENTIONED THAT THE POSSESSION WAS HANDED OVER ON TH E DATE OF THE EXECUTION OF THE SALE DEED BY THE SELLER TO THE PUR CHASER. IN THE SAID CLAUSE, IT WAS SPECIFIED THAT A VACANT AND PEACEFUL POSSESSION WAS HANDED OVER TO THE PURCHASER ON THE DATE OF EXECUTION OF T HE SALE DEED. BECAUSE OF THESE REASONS, WE HEREBY HOLD THAT SINCE THE POS SESSION WAS HANDED OVER AND THE SALE DEED WAS REGISTERED IN THE FINANC IAL YEAR 2006-07, THEREFORE, THE CORRECT ASSESSMENT YEAR OUGHT TO BE A.Y.2007-08. THE AOS ACTION, IN THIS REGARD IS HEREBY AFFIRMED. THI S ADDITIONAL GROUND OF THE ASSESSEE IS HEREBY DISMISSED. 10. ON MERITS, LEARNED AR HAS ALSO CHALLENGED THE C OMPUTATION OF THE CAPITAL GAIN IN THE HANDS OF THE ASSESSEE BY WRONGL Y ASSESSING SALE CONSIDERATION AT RS.84,79,627/-. LEARNED AR HAS DRA WN OUR ATTENTION ON A WRITTEN SUBMISSION WHICH WAS FILED BEFORE THE AO, THROUGH WHICH IT WAS CONTESTED THAT 50% OF THE LAND WAS TAKEN AWAY B Y THE GOVERNMENT; THEREFORE, THE CONSIDERATION OF RS.45 LACS WAS ONLY IN RESPECT OF THE PORTION OF THE LAND IN POSSESSION OF THE ASSESSEE A ND THAT PORTION ONLY WAS THE SUBJECT MATTER OF THE TRANSACTION. FOR READY RE FERENCE, THE SAID REPLY OF THE ASSESSEE IS REPRODUCED HEREINBELOW. BACKGROUND: RAJENDRA N. PATEL OWNS A LAND AT SURVEY NO.234 AT VADAJ, AHMEDABAD. THIS WAS A LAND DECLARED AS GIVEN BE IT. THEREFORE, THE GOVT. WOULD TAKE AWAY 50% OF THE LAND AREA TOWARDS DEVELOPMENT OF COMMON AMENITIES LIKE ROADS, DRAINAGE, PARKS, ETC, AND BALANCE 50% WOULD BE GIVE N BACK IS APPROVED FINAL ITA NO.131/AHD/2011 RAJENDRA N. PATEL VS. ITO (OSD), AHMEDABAD. A.Y.2007-08 - 7 - PLOT ON WHICH THE OWNER CAN DO THE DEVELOPMENT WORK AND COMMERCIALLY EX PLOT THE SAME. THE LAND IN QUESTION WAS ADMEASURING 62.73 SQ. MTS (7502 SQ. YARD). THE LAND WAS SOLD IN TWO PARTS WHICH IS EXPLAINED BY WA Y OF FOLLOWING: SQ. MTS SQ YDS. TOTAL AREA 6273 7502 50% RESERVATION 3136 3750 BALANCE AREA (FINAL PLOT) 3136 3750 SOLD IN 1999-2000 1505 1800 BALANCE FINAL PLOT SOLD IN 2006-07 1631.5 1951 IN 1999-2000 THE AREA SOLD WAS 1800 SQ. YDS LEAVIN G A BALANCE SALABLE AREA OF 5702 SQ. YDS, OUT THIS 1800 SQ. YDS IN THE GIVEN BELT RESERVATION AREA ARISEN OUT OF THE PREVIOUS SALES. THE BALANCE AREA I.E 5702 SQ. YDS LESS 1800 SQ. YDS= 3902 YDS WAS THE AREA SOLD UNDER THE PRESENT SALE DEED. THE FINAL PLOT AREA WAS 1951 SQ.YDS WHICH WAS SOLD FOR A CONSIDERATION OF RS.45,00,000/- IN APPRX. 2005. A COPY OF BANAKHAT I S ATTACHED HEREWITH. A COPY OF THE PLAN SHOWING FINAL PLOT NUMBER AND RESE RVED AREA IS ATTACHED HEREWITH. THE ENTIRE CONSIDERATION WAS RECEIVED IN THE MONTHS OF APRIL TO JULY 2005 AND THE POSSESSION OF THE SAID LAND WAS ALSO G IVEN TO THE LAND BUYER IN THE MONTH OF JULY 2005. THEREFORE, EFFECTIVE TRANSF ER WAS MADE IN JULY, 2005 AND ENTIRE CONSIDERATION WAS ALSO RECEIVED. THE COP Y OF POSSESSION LETTER IS ATTACHED HEREWITH. THE SALE DEED COULD NOT BE EXECU TED DURING THAT PERIOD BECAUSE SON CONCESSION WERE EXPECTED IN THE % RESER VATION BY THE GOVT. WHICH ULTIMATELY DID NOT MATERIALIZE AND THEREFORE THE SALE DEED WAS ULTIMATELY REGISTERED IN JULY 06. IN AN EXPECTATION THAT THERE MIGHT BE SOME RELAXATI ON IN RESERVATION POLICY, GROSS AREA OF LAND WAS MENTIONED IN THE SALE DEED S O THAT IF IN GOVT. RELAXES THE NORMS, THEN THE BUYER WOULD GET THE BENEFIT OUT OF IT. TO SUMMARIES, THROUGH THE SALE AREA WAS 1951 SQ. YDS (1631 SQ. YD S), WHICH CAN BE SEEN FOR THE MAP ATTACHED WITH THE SALE DEED, AND FOR WH ICH A CONSIDERATION OF RS.45.00 LACS WAS RECEIVED, THE GROSS AREA IS MENTI ONED IN THE SALE DEED. THE JANTRI RATE PREVAILING WAS RS.2600 PER SQ. MTS ACCORDINGLY, THE VALUATION FOR STAMP DUTY PURPOSE WORK OUT TO RS.42.40 LACS AG AINST WHICH THE SALE DEED VALUE IN RS.45.00 LACS I.E. HIGHER THAN THE JA NTRI RATE FOR VIEW OF THIS, NO ADDITION SHOULD BE MADE UNDER SECTION 50 C. 10.1 LEARNED AR HAS THEREFORE PLEADED THAT IT WAS W RONG ON THE PART OF THE AO TO APPLY THE VALUATION FOR THE ENTIRE PIECE OF LAND ON THE BASIS OF THE RATES OF STAMP DUTY FIXED BY THE SUB-REGISTRAR. HE HAS PLEADED THAT IN TERMS OF SECTION 50C IT IS CORRECT THAT THE HIGHER STAMP DUTY WAS PAID BUT IN A SITUATION WHEN PART OF THE LAND WAS ACQUIRED B Y THE GOVERNMENT, THEN THERE WAS NO REASON TO APPLY THAT RATE FOR THE PURP OSE OF COMPUTATION OF CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. HE HAS D RAWN OUR ATTENTION ON ITA NO.131/AHD/2011 RAJENDRA N. PATEL VS. ITO (OSD), AHMEDABAD. A.Y.2007-08 - 8 - AN OPINION TAKEN FROM THE CHIEF CITY PLANNER WHEREI N IT WAS OPINED THAT THE LAND OWNER WERE NO MORE ABLE TO MAKE ANY KIND O F DEMAND IN RESPECT OF ANY CHARGE MADE BY AMC. IT WAS FURTHER OPINED TH AT AFTER GETTING THE DEVELOPMENT PERMISSION OF 50% LAND. THE LAND WOULD AUTOMATICALLY BECOME THE PROPERTY OF THE AMC AND THEREFORE AMC WA S AUTHORIZED TO USE THE 50% OF THE LAND. 11. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE , LEARNED DR HAS PLEADED THAT AS PER THE SALE DEED THE ASSESSEE HAS TRANSFERRED 4768.02 SQ MTR. (5702.69 SQ YARDS) LAND TO THE BUYER. THERE WA S NO MENTION IN THE SALE DEED THAT ONLY 50% OF THE LAND WAS TRANSFERRED . 12. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT IN A SITUATION WHEN THE FAC TS ABOUT THE ACQUISITION OF A PORTION OF LAND BY THE GOVERNMENT DEPARTMENT H AS NOT BEEN THOROUGHLY INVESTIGATED BY THE AO THEN THE MATTER S HOULD GO BACK FOR A DE NOVO CONSIDERATION ON THIS ISSUE. LEARNED AR HAS TRIED TO DRAW OUR ATTENTION ON THE MAPS OF THE AREA. THEREFORE ON ONE HAND, THE ASSESSEE HAS CLAIMED THAT ONLY 50% OF THE LAND WAS TRANSACTED BU T THE STAMP DUTY WAS PAID ON THE ENTIRE AREA OF THE LAND, BUT ON THE OTH ER HAND, THE AOS OPINION WAS THAT THE SALE CONSIDERATION IN RESPECT OF ENTIRE LAND WAS TO BE ASSESSED IN THE HANDS OF THE ASSESSEE BY APPLYING T HE STAMP DUTY RATES WHICH WERE PAID BY THE ASSESSEE AT THE TIME OF EXEC UTION OF THE SALE DEED. ACCORDING TO US, THIS FACT CAN ONLY BE ASCERTAINED BY A SPOT INSPECTION FROM THE REVENUE DEPARTMENT. THE ASSESSEE CAN DEMON STRATE HIS POINT OF VIEW WITH THE ASSISTANCE OF THE MAPS NOW SHOWN TO U S THAT ONLY A PORTION OF THE LAND, I.E., 50% WAS TRANSACTED AND NOT THE E NTIRE LAND. THE ASSESSEE ITA NO.131/AHD/2011 RAJENDRA N. PATEL VS. ITO (OSD), AHMEDABAD. A.Y.2007-08 - 9 - IS ALSO EXPECTED TO FURNISH BEFORE THE AO THE CORRE SPONDENCE WITH THE GOVERNMENT DEPARTMENT THROUGH WHICH IT COULD BE EST ABLISHED THAT ONLY 50% OF THE LAND WAS IN POSSESSION OF THE ASSESSEE A ND REST WAS TAKEN AWAY BY THE GOVERNMENT. WE, THEREFORE, REMIT THIS G ROUND, I.E., GROUND NOS.1 TO 4 TO THE AO FOR DENOVO ADJUDICATION, NEEDL ESS TO SAY AFTER PROVIDING AN ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. RESULTANTLY, THESE GROUNDS MAY BE TREATED AS ALLOWED BUT FOR STA TISTICAL PURPOSE ONLY. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED THAT TOO FOR STATISTICAL PURPOSE ONLY. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 30/05/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD