SMT. SANTOSH DEVI, JAIPUR V. INCOME TAX OFFICER, SIKAR

ITA 1365/JPR/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8823 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-03-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 03-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Fair market value; Set aside
• Section: 50C; 147

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1365/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2009-10 SMT. SANTOSH DEVI W/O SHRI RAMJILAL JAT, VPO- SRIMADHOPUR, DISTT.- SIKAR CUKE VS. ITO, SIKAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: DIXPS2756B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K. C. GUPTA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/01/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 07/01/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-3, JAIPUR DATED 02.11.2018 WHEREIN THE ASSESSEE HAS TA KEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE INITIATION OF PROCEEDINGS U/S 147 OF THE AC T IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND HENCE, THE SAME KINDLY BE QUASHED. RESULTANTLY, THE IMPUGNED ORDER U/S 143 (3)/148 DATED 20.03.2013 BE ALSO QUASHED. 2. THE IMPUGNED ADDITIONS AND DISALLOWANCE MADE IN THE ORDER U/S 143(3)/148 DATED 20.03.2013 ARE BAD IN LAW AND ON F ACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME KINDLY BE DELETED. 3. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FA CTS OF THE CASE IN CONFIRMING THE ADDITION MADE BY THE AO OF RS. 9,03, 260/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN (FOR SHORT STCG) BY ADOPT ING SALE VALUE AT RS. ITA NO. 1365/JP/2018 SMT. SANTOSH DEVI, SIKAR VS. ITO, SIKAR 2 12,03,260/- INSTEAD OF RS. 3,00,000/- DECLARED BY T HE APPELLANT BY INVOKING SEC. 50C OF THE ACT. THE ADDITION SO MADE AND CONFIRMED BY THE LD.CIT(A) BEING CONTRARY TO THE PROVISIONS OF LAW A ND FACTS, THE SAME KINDLY BE DELETED. 4. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FA CTS OF THE CASE IN NOT CONSIDERING THE COMPARABLE CASES AND OBJECTIONS RAISED BY THE APPELLANT BEFORE THE AO U/S 50C(2) OF THE ACT AND T HEREFORE, THE ADDITION SO MADE AND CONFIRMED BY THE LD. CIT(A) KINDLY BE D ELETED IN FULL. 2. DURING THE COURSE OF HEARING, THE LD. AR HAS NOT PRESSED THE GROUND NOS. 1 AND 2 FOR WHICH THE DR HAS RAISED NO OBJECTION. H ENCE, THE SAME ARE DISMISSED AS NOT PRESSED. 3. REGARDING GROUND NOS. 3 AND 4, THE LD. AR TOOK U S THROUGH THE FINDINGS OF THE ASSESSING OFFICER WHICH READS AS UNDER:- CAPITAL GAIN FROM SALE OF LAND: ON EXAMINATION OF SALE DEED SUBMITTED SEEN THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESS EE HAS SOLD A LAND LOCATED AT VILLAGE SRIMADHOPUR, PATWAR HALKA SRIMADHOPUR, T EH. SRIMADHOPUR, DISTT. KHASRA NO 1339, 1342,1343,1352, 1357 & 1358. ON EXA MINATION OF PURCHASEK,I DEED IT WAS SEEN THAT THE LAND WAS PURC HASED ON 05.1-0.2007 BY THE ASSESSEE ALONG WITH OTHER FOUR PERSONS FROM SHR I SUKHA RAM, S/O SHRI BUDHA RAM RESIDENT WARD NO.3, DHANI SWAMIWALI, SRIM ADHOPUR. THE ASSESSEE WAS HAVING 1/5 TH SHARE IN LAND PURCHASED. THE LAND WAS PURCHASED FOR TOTAL OF RS 13,00,000/-. ASSESSEE AS PER HER SH ARE HAS PAID A SUM OF RS 2,76,374/- FOR THE PURCHASE. LATER OR IE ASSESSEE S OLD HER SHARE OF LAND (I.E 1/5 TH ) ON 20-05-2008 FOR A CONSIDERATION OF RS 3,00,000/ - TO SMT SANTOSH DEVI, W/O SHRI RAJENDRA SINGH RESIDENT OF VILLAGE K ALYANPURA, TEH. SRIMADHOPUR. FURTHER ON EXAMINATION OF SALE DEED IT WAS SEEN THAT THE STAMP VALUATION AUTHORITY, SRIMADHOPUR ADOPTED THE SALE VALUE OF THE LAND ITA NO. 1365/JP/2018 SMT. SANTOSH DEVI, SIKAR VS. ITO, SIKAR 3 AT RS. 12,03,260/- FOR STAMP PURPOSES. FURTHER, IT WAS NOTICED THAT THE ASSESSEE RS. 3,00,000/- ONLY AND THUS THERE WAS DIF FERENCE IN THE VALUE OF SALE CONSIDERATION AND THE VALUE ADOPTED BY THE STA MP VALUATION AUTHORITY. BEFORE PROCEEDING FURTHER IT IS PERTINEN T TO SEE THE PROVISIONS OF SECTION 50C OF THE IT ACT, WHICH READS AS UNDER: [SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES. 50C (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUIN G AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING L AND OR BUILDING OR BOTH, IS LESS T VALUE ADOPTED OR ASSESSED 21 [OR ASSESSABLE] BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFER RED TO AS THE 'STAMP VALUATION AUTHORITY') FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANQFC THE VALUE SO ADOPTED OR ASSESSED [O R ASSESSABLE] SHALL, FOR THE PURPOSES SECTION 48, BE DEEMED TO BE THE FU LL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF S UCH TRANSFER. ' IN VIEW OF SECTION 50C OF THE IT ACT, 1961, THE ASS ESSEE VIDE ORDER SHEET ENTRY DATED 18-03-13 WAS GIVEN A SHOW CAUSE AS TO W HY NOT THE SALE CONSIDERATION 12,03,260/- AS ADOPTED BY THE STAMP V ALUATION AUTHORITY MAY BE TAKEN COMPUTING CAPITAL GAIN AND TAX THEREON .THE ASSESSEE SUBMITTED THE SUBMISSION VIDE LETTER DATED 20-03-13 , PLACED ON RECORD. THE REPLY OF THE ASSESSEE HAS BEEN CONSIDERED BUT N OT FOUND ACCEPTABLE. ASSESSEE HAS STATED THAT 'THAT THE SAID AGRICULTURE LAND WAS ACTUALLY SOLD OF RS. 3,00,000/-INSTEAD OF RS 12,03,260/-BY THE ASSES SEE. I HUMBLY REQUEST THE SALE VALUATION OF THE LAND MAY BE CONSIDERED ON RS 3,00,000/-. THE SUB REGISTRAR HAS WRONGLY CALCULATED THE VALUATION ON THE SAID AGRICULTURE LAND. FOR WHICH THE DISCREPANCY OF THE REGISTRATION CHARGES & VALUATION ON THE SAID AGRICULTURE LAND, THE ASSESSEE HAS FILED T HE APPEAL IN REVENUE BOARD, AJMER AGAINST SUB REGISTRAR-SRIMADHOPUR. THE COPY OF APPEAL TILED ITA NO. 1365/JP/2018 SMT. SANTOSH DEVI, SIKAR VS. ITO, SIKAR 4 SUBMITTED IS PLACED ON RECORD. THE ASSESSEE HAS U S UBMITTED ANY COPY OF DECISION AND OUTCOME OF THE APPEAL SO FILED WHICH R ILEATI THAT THE DECISION OF THE APPEAL FILED BY THE ASSESSEE IS STILL PENDIN G ON THE DATE. THEREFORE THE SUBMISSION OF THE ASSESSEE TO CONSIDER THE SALE VALUE AT RS 3,00,000/- ONLY IS NOT ACCEPTABLE. THEREFORE IN VIEW OF THE PROVISIONS OF SEC SOC, IT BECOMES CLEAR THAT THE DLC VALUE SHALL BE TAKEN AS FULL VALUE OF CONSIDERA TION FOR CALCULATING CAPITAL GAIN, IF THE SALES CONSIDERATION ON ACCOUNT OF SALE OF A CAPITAL ASSET BEING LAND/BUILDING OR BOTH 12,03,260/- FOR T HE PURPOSES OF CALCULATING CAPITAL GAIN. THE CAPITAL GAIN THUS IS WORKED OUT AT RS. 9,26,886/-. THE ASSESSEE HAS SHOWN CAPITAL GAIN OF RS. 23,626/- ONLY THEREFORE, DIFFERENCE IN BOTH THE VALUES WHICH COME S TO RS. 9,03,260/- IS ADDED BACK TO THE INCOME OF THE ASSESSEE AS PER PRO VISIONS OF SECTION 50C. 4. FURTHER, HE TOOK US THROUGH THE FINDINGS OF THE LD. CIT(A) WHICH READS AS UNDER:- I PERUSED THE RECORD I FIND THAT THERE IS NO FORCE IN THE SUBMISSION OF THE A/R OF THE APPELLANT THAT THE DLC RATE TAKEN BY THE ASSESSING OFFICER HIGHER. THIS ARGUMENT OF THE A/R IS NOT TEN ABLE BECAUSE THE A/R OF THE APPELLANT PROVIDE SALE DEED OF THE NEARBY LA ND WERE EXECUTED IN THE F.Y. 2010-11 AND THE APPELLANT SALE DEED WAS EX ECUTED IN F.Y. 2008-09. FURTHER IT IS ALSO FIND THAT THE APPELLANT FILED THE APPEAL BEFORE THE REVENUE BOARD, THE BOARD HAS CANCELLED T HE SAID APPELLANT AND THE APPELLANT NOT FILE ANY APPEAL AGAINST THIS VALUE ADOPTED BY THE SUB REGISTRAR OF RS.12,03,260/-. IT PROVE THAT THE APPELLANT ACCEPTED THE SALES CONSIDERATION OF RS.12,03,260/-. THIS IS VERY IMPORTANT TO MENTION HERE THAT GHASRA NO.1339, 1343 AND 1342/1 A RE SITUATED ON THE ROAD. THEREFORE THE VALUE OF LAND SITUATED ON R OAD ARE VERY HIGHER. ITA NO. 1365/JP/2018 SMT. SANTOSH DEVI, SIKAR VS. ITO, SIKAR 5 HENCE THE EXAMPLE CITED BY THE APPELLANT THAT DLC R ATE WAS TAKEN BY THE OTHER CASE ARE BELOW IS NOT RELEVANT. THEREFORE I AM THE VIEW THAT THE ASSESSING OFFICER RIGHTLY COMPUTED SHORT TERM C APITAL GAIN OF RS. 9,03,260/- TAKING THE VALUE OF LAND OF RS. 12,03,26 0/-. ACCORDINGLY I CONFIRM THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 12,03,260/-. THESE GROUNDS ARE NOT ALLOWED. 5. IT WAS SUBMITTED BY THE LD AR THAT THE ASSESSEE HAS OBJECTED TO THE VALUATION ADOPTED BY THE STAMP DUTY AUTHORITY BEFOR E THE AO AND THEREFORE, THE MATTER SHOULD HAVE BEEN REFERRED BY THE AO TO T HE DVO FOR DETERMINATION OF FAIR MARKET VALUE. SINCE THE ASSESSING OFFICER H AS NOT REFERRED THE MATTER TO THE DVO, THE MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR DETERMINATION OF FAIR MARKET VALUE. 6. PER CONTRA, THE LD. DR RELIED ON THE FINDINGS O F THE ASSESSING OFFICER AND SUBMITTED THAT THE ASSESSEE HAS NOT MADE ANY SPECIF IC REQUEST FOR REFERENCE OF THE MATTER TO THE DVO. THEREFORE, IN ABSENCE THEREO F, THE ASSESSING OFFICER WAS NOT REQUIRED TO REFER THE MATTER TO THE DVO. HE ACCORDINGLY SUPPORTED THE FINDINGS OF THE ASSESSING OFFICER. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS SOLD HER 1/5 TH SHARE OF LAND FOR A CONSIDERATION OF RS. 3,00,000/- WHEREAS THE REGISTERING AUTHORITY HA S CONSIDERED THE SALE VALUE AT RS. 12,03,260/- FOR THE PURPOSE OF STAMP DUTY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ISSUED A S HOW CAUSE NOTICE AND IN RESPONSE, THE ASSESSEE OBJECTED TO THE STAMP DUTY V ALUATION OF RS. 12,03,260/- AND REQUESTED TO ADOPT VALUE OF RS. 3,00,000/- AS P ER THE SALE DEED DATED 20.05.2008. THEREFORE, WHERE THE ASSESSEE HAS OBJEC TED TO THE STAMP DUTY VIOLATION, AS PER THE PROVISIONS OF SECTION 50C(2) OF THE ACT, THE MATTER SHOULD ITA NO. 1365/JP/2018 SMT. SANTOSH DEVI, SIKAR VS. ITO, SIKAR 6 HAVE BEEN REFERRED BY THE ASSESSING OFFICER TO THE DVO FOR DETERMINATION OF FAIR MARKET VALUE. IN THE INSTANT CASE, AS THE MATT ER HAS NOT BEEN REFERRED TO THE DVO, WE DEEM IT APPROPRIATE TO SET ASIDE THE MA TTER TO FILE OF THE ASSESSING OFFICER FOR REFERRING TO DVO TO DETERMINE THE FAIR MARKET VALUE OF THE LAND IN QUESTION AND DECIDED AS PER LAW. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07/01/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07/01/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. SANTOSH DEVI, SIKAR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, SIKAR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1365/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR