ITO, Jaipur V. SHRI VINOD SINGHVI, Jaipur

ITA 1402/JPR/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 47977 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 10-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINOD JOHRI
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Reassessment proceedings
• Section: 50C; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO.1402/ JP/2010 ASSESSMENT YEAR 2002-03 PAN: AFPPS 1252 J THE ITO VS. SHRI VINOD SINGHVI WARD- 7(3) C-187, GYAN MARG JAIPUR TILAK NAGAR, JAIPUR (APPELLANT ) (RESPONDENT) C.O. NO.1/JP/2011 (ARISING OUT OF ITA NO.1402/ JP/2010) ASSESSMENT YEAR 2002-03 PAN: AFPPS 1252 J SHRI VINOD SINGHVI VS. THE ITO C-187, GYAN MARG WARD- 7 (3) TILAK NAGAR, JAIPUR JAIPUR (APPELLANT ) (RESPONDENT ITA NO.1403/ JP/2010 ASSESSMENT YEAR 2003-04 PAN: AFPPS 1252 J THE ITO VS. SHRI VINOD SINGHVI WARD- 7(3) C-187, GYAN MARG JAIPUR TILAK NAGAR, JAIPUR (APPELLANT ) (RESPONDENT) C.O. NO.2/JP/2011 (ARISING OUT OF ITA NO.1403/ JP/2010) ASSESSMENT YEAR 2003-04 PAN: AFPPS 1252 J SHRI VINOD SINGHVI VS. THE ITO C-187, GYAN MARG WARD- 7 (3) TILAK NAGAR, JAIPUR JAIPUR (APPELLANT ) (RESPONDENT 2 ITA NO.1404/ JP/2010 ASSESSMENT YEAR 2004-05 PAN: AFPPS 1252 J THE ITO VS. SHRI VINOD SINGHVI WARD- 7(3) C-187, GYAN MARG JAIPUR TILAK NAGAR, JAIPUR (APPELLANT ) (RESPONDENT) C.O. NO.3/JP/2011 (ARISING OUT OF ITA NO.1404/ JP/2010) ASSESSMENT YEAR 2004-05 PAN: AFPPS 1252 J SHRI VINOD SINGHVI VS. THE ITO C-187, GYAN MARG WARD- 7 (3) TILAK NAGAR, JAIPUR JAIPUR (APPELLANT ) (RESPONDENT ITA NO.1405/ JP/2010 ASSESSMENT YEAR 2005-06 PAN: AFPPS 1252 J THE ITO VS. SHRI VINOD SINGHVI WARD- 7(3) C-187, GYAN MARG JAIPUR TILAK NAGAR, JAIPUR (APPELLANT ) (RESPONDENT) C.O. NO.4/JP/20/2011 (ARISING OUT OF ITA NO.1405/ JP/2010) ASSESSMENT YEAR 2005-06 PAN: AFPPS 1252 J SHRI VINOD SINGHVI VS. THE ITO C-187, GYAN MARG WARD- 7 (3) TILAK NAGAR, JAIPUR JAIPUR (APPELLANT ) (RESPONDENT DEPARTMENT BY :SHRI VINOD JOHRI ASSESSEE BY : SHRI P.C. PARWAL 3 ITA NO.1316 1317 & 1318/ JP/2010 ASSESSMENT YEAR 2003-04 TO 2005-06 PAN: AMVPS 3629 N SMT. KEVAL SINGHVI VS. THE ITO W/ LATE SHRI GYAN CHAND SINGHVI WARD- 5 (3) C-187, GYAN MARG, TILAK NAGAR, JAIPUR JAIPUR (APPELLANT ) (RESPONDENT) ASSESSEE BY : SHRI P.C. PARWAL DEPARTMENT BY : SHRI SANJAY KUMAR ORDER PER N.L. KALRA, AM:- THE REVENUE HAS FILED APPEALS AGAINST RESPECTIVE O RDERS OF THE LD. CIT(A)-II, JAIPUR DATED 30-09-2010 FOR THE ASSESS MENT YEARS 2002-02 TO 2005-06 WHILE THE ASSESSEE HAS FILED THE CROSS OBJE CTIONS. 1.2 FURTHER THE ASSESSEE (SMT. KEWAL SINGHVI) HAS FILED THE APPEALS AGAINST THE CONSOLIDATED ORDER OF THE LD. CIT(A)-II , JAIPUR DATED 01-09-2010 FOR THE ASSESSMENT YEARS 2003-04 TO 2005-06. 1.3 FIRST OF ALL, WE TAKE UP THE APPEALS OF THE REV ENUE AND C.O. OF THE ASSESSEE PERTAINING TO SHRI VINOD SINGHVI AND THEN WE SHALL DECIDE THE APPEALS IN RESPECT OF SMT. KEWAL SINGHVI. 4 2.1 THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN ALL THE ABOVE APPEALS ARE SIMILAR AND THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITS C.O. ARE SIMILAR FOR ALL THE FOUR ASSESSMENT YEARS. 3.1 DURING THE COURSE OF PROCEEDINGS BEFORE US, THE LD. AR HAS NOT PRESSED THE GROUND NO. 1 OF THE C.O. IN ALL THE CROSS OBJEC TIONS. HENCE, THE SAME IS DISMISSED BEING NOT PRESSED. 4.1 THE REVENUE IS AGGRIEVED AGAINST PART DELETION OF ADDITION IN RESPECT OF CAPITAL GAIN WHILE THE ASSESSEE IS AGGRIEVED AGAINS T CONFIRMATION OF PART ADDITION OUT OF CAPITAL GAIN. 4.2 THE QUANTUM OF ADDITION PARTLY CONFIRMED BY THE LD. CIT(A) IS DIFFERENT IN DIFFERENT ASSESSMENT YEARS BUT THE ISS UE IS SIMILAR. HENCE, WE WILL TAKE UP THE APPEAL FOR THE ASSESSMENT YEAR 200 2-03 SO AS TO STATE THE FACTS OF THAT ASSESSMENT YEAR. THE FINDINGS FOR THE ASSESSMENT YEAR 2002-03 WILL BE APPLICABLE FOR THE SUBSEQUENT ASSESSMENT YE ARS. 4.3 THE ASSESSEE FILED THE RETURN OF INCOME ON 2 ND JULY, 2002 AND THE RETURN WAS PROCESSED U/S 143(1). THE INFORMATION WA S RECEIVED THAT SHRI NEMI CHAND SINGHVI, POWER OF ATTORNEY HOLDER OF THE ASSESSEE SOLD THE PROPERTY IN THE MUNICIPAL LIMIT OF NAGAUR AND THE A SSESSEE HAS NOT DECLARED THE CAPITAL GAIN. THE AO ISSUED NOTICE U/S 148 OF T HE ACT AND THE ASSESSEE IN 5 RESPONSE TO NOTICE STATED THAT EARLIER RETURN SHOUL D BE TREATED AS A RETURN IN RESPONSE TO NOTICE U/S 148 OF THE ACT. 4.4 AS PER INFORMATION AVAILABLE ON THE FILE, THE A SSESSEE WAS OWNING 25 BIGHA OF LAND IN KHASRA NO. 425 IN THE MUNICIPAL LI MIT OF NAGAUR. THE ASSESSEE WAS ALSO OWNER OF 25 BIGHA OF LAND IN THE SAME LOCALITY WITH HIS MOTHER SMT. KEVAL KANWAR. THE ASSESSEE GAVE THE POW ER OF ATTORNEY TO SHRI NEMI CHAND SINGHVI AND SHRI NEMI CHAND SINGHVI SOLD THE LAND AS RESIDENTIAL PLOTS. SUCH SALES WERE EFFECTED FOR THE ASSESSMENT YEARS 2002-03 TO 2005-06. THE COPIES OF SUCH SALE DEEDS WERE GIVE N TO THE ASSESSEE TO EXPLAIN AS TO WHY THE CAPITAL GAIN ON SALE OF PLOT S WAS NOT SHOWN. BEFORE THE AO, IT WAS SUBMITTED VIDE LETTER DATED 24-03-2009 T HAT LAND BELONGS TO SHRI NEMI CHAND SINGHVI IN THE CAPACITY OF KARTA OF HUF AND THEREFORE, THE CAPITAL GAIN HAS ARISEN TO HUF OF SHRI NEMI CHAND S INGHVI. THE AFFIDAVIT OF SHRI NEMI CHAND SINGHVI WAS ALSO FILED IN WHICH HE STATED THAT THE PLOTS SOLD WERE BELONGING TO HUF AND HUF IS LIABLE TO PAY CAPITAL GAIN TAX. THE AO REFERRED TO THE SALE DEED DATED 31-08-01 IN RESP ECT OF SALE OF PLOT TO SHRI TARA CHAND IN WHICH IT HAS BEEN MENTIONED THAT SHRI NEMI CHAND SINGHVI IS POWER OF ATTORNEY HOLDER OF THE ASSESSEE AND THE AS SESSEE IS OWNER OF THE LAND. THE AO THEREFORE, REQUIRED THE ASSESSEE TO FU RNISH THE INFORMATION AS MENTIONED AT PAGE 3 OF THE ASSESSMENT ORDER. THE RE PLY WAS FILED ON 5-11- 6 2009. IN THE REPLY, IT WAS STATED THAT FAMILY OF LA TE SHRI GYAN CHAND SINGHVI CONSISTED OF HIS WIFE, ONE SON (ASSESSEE) AND TWO M ARRIED DAUGHTERS. IN ORDER TO ESCAPE FROM THE CLUTCHES OF THE PROVISIONS OF LA ND CEILING, THE LAND IN QUESTION BELONGING AND OWNED BY SHRI NEMI CHAND SINGHVI, HUF WAS ALLOTTED BENAMI IN THE NAME OF VARIOUS PERSONS INCL UDING THE ASSESSEE WAY BACK IN THE YEAR 1975. THE SAID HUF SOUGHT POWER OF ATTORNEY FROM ALL THE BENAMI ALLOTTEES. IN ORDER TO MAINTAIN PEACE AND HA RMONY IN THE FAMILY, THE ASSESSEE GAVE POWER OF ATTORNEY. IT WAS STATED THAT THE ASSESSEE IS NOT AWARE OF NUMBER OF THE PLOTS, SALE PRICE AND ADDRESS OF T HE PURCHASER. ALL THE INFORMATIONS CAN BE GATHERED FROM THE HUF OF SHRI N EMI CHAND SINGHVI. THE AO REPEATEDLY REQUIRED THE ASSESSEE TO FILE YEA R-WISE TRANSACTION OF SALE AND PRESENT POSITION OF THE LAND. THE ASSESSEE IN T HE REPLY STATED THAT HE IS UNAWARE OF THE FACTS IN RESPECT OF NUMBER OF PLOTS REMAINED UNSOLD AT KHASRA NO. 425. ALL THE PLOTS HAVE BEEN SOLD UPTO T HE YEAR 2000 EITHER BY EXECUTING THE AGREEMENT FOR SALE OR SIMILAR TYPE WR ITTEN MEMORANDUM. THE FULL PAYMENTS OR PART PAYMENTS AS MENTIONED IN THE THESE AGREEMENTS WERE DULY RECEIVED AND POSSESSION WAS GIVEN TO THE RESPE CTIVE BUYERS. REFERNECE WAS MADE TO SECTION 2(47) OF THE INCOME TAX ACT, 19 61 TO SAY THAT TRANSFER TOOK PLACE IN EARLIER YEAR AND THE POSSESSION WAS H ANDED OVER TO THE PURCHASERS. IT IS TRUE THAT THE DOCUMENTS WERE REGI STERED SUBSEQUENTLY. 7 SECTION 50C CANNOT BE APPLIED FOR THE ASSESSMENT YE AR 2002-03. THE AO VIDE ORDER SHEET ENTRY DATED 22ND DEC. 2009 INFORM ED THE ASSESSEE THAT THERE IS NO MENTION IN THE SALE DEEDS IN RESPECT OF PREVIOUS AGREEMENT. THE SALE VALUE SHOWN IN THE SALE DEED IS UNDERSTATED AS HIGHER STAMP DUTY HAS BEEN CHARGED. THE CONTENTION OF THE ASSESSEE BEFORE THE AO WAS THAT THE ASSESSEE HAS NOT RECEIVED ANY SALE CONSIDERATION A ND CAPITAL GAIN CANNOT BE CHARGED. THE AO AFTER CONSIDERING THE FACTS ON RECO RD REJECTED THE CONTENTION OF THE ASSESSEE AND COMPUTED THE CAPITAL GAIN AFTER OBSERVING AS UNDER:- 21. IN VIEW OF ABOVE FACTS, THE CONTENTION OF THE ASSESSEE THAT HE WAS NOT THE OWNER OF THE LAND IS N OT ACCEPTED. THE CLAIM OF THE ASSESSEE ON THE POINT IS REJECTED AND CAPITAL GAIN IS WORKED OUT ON THE ASSESSEE AS HE IS LEGALLY THE OWNER OF THE SOLD LAND AND SHRI NEMI CHAND SINGHVI ACTED AS HIS POWER OF ATTORNEY HOLDER. THEREFORE THE HUF OF SHRI NEMI CHAND SINGHVI HAS NOTHING TO DO IN REGARD TO CAPITAL GAIN ARISING OUT OF TRANSFER OF PROPERTY. SINCE THE SALE PRICE HAS BEEN UNDERSTATED IN THE SALE DEEDS, IT IS ESTIMATED IN THE SUBSEQUENT P ART OF THIS ORDER. SINCE THE ASSESSEE HAS NOT FURNISHED THE DET AILS OF SALE, THE PROPERTY WHICH REMAINED UNSOLD, YEAR WISE SALE AND THE SALE DEEDS PROCURED BY THE DEPARTMENT ARE NOT FOR THE EN TIRE PROPERTY, THE CAPITAL GAIN IS WORKED OUT BY BIFURCA TING THE LAND EQUALLY TO 4 ASSESSMENT YEARS VIZ. 2002-03 TO 2005- 06 AND ALSO BY ESTIMATING THE MARKET VALUE. 8 22. THE ASSESSEE AS MENTIONED IN EARLIER PART OF TH IS ORDER OWNED 37.5 BIGHA LAND. BIFURCATING THE LAND T O 4 YEARS I.E. THE ASSESSMENT YEARS 2002-03 TO 2005-06, THE LAND S OLD IN EACH YEAR COMES TO 9.375 BIGHA. 1 BIGHA COMPRISES OF 3,0 00 SQR. YRD. AND TOTAL LAND AVAILABLE FOR SALE WAS 28.125 S QR. YRD. DURING THE YEAR UNDER CONSIDERATION. SINCE ROAD FAC ILITY IS NEEDED, THE ENTIRE LAND CAN NOT BE ATTRIBUTED TO SA LE. GIVING DEDUCTION OF 30% LAND AREA FOR FACILITIES (CONSIDER ING THE FACT THAT THE PLOTS WERE SOLD UNDEVELOPED AND THEREFORE PROVISIONS FOR ALL FACILITIES MIGHT NOT HAVE BEEN PROVIDED) A T 8438 SQR. YRD., THE SALEABLE LAND AREA IS ESTIMATED AT 19,688 SQ. YRD. ON THE BASIS OF ANNEXURE A IN CASES WHERE BOTH AREA AN D MARKET RATE IS AVAILABLE, THE AREA/MARKET VALUE HAS BEEN T OTALLED AND AVERAGE VALUE TAKEN. IN THIS YEAR, THE AVERAGE MARK ET VALUE COMES AT RS.234 PER SQ. YRD. APPLYING THIS VALUE ON SALEABLE LAND OF 19688 SQ. YRD., THE SALE VALUE COMES AT RS. 46,06,992/-. IN THE ABSENCE OF DETAILS OF COST OF ACQUISITION, T HE INDEXED COST OF ACQUISITION AS ON THE DATE OF SALE IS ESTIMATED AT 25% OF THE MARKET VALUE. BY THIS, THE INDEXED COST OF ACQUISIT ION IS TAKEN AT RS. 11,51,748/-. DEDUCTING THIS FROM THE SALE CONSI DERATION OF RS.46,06,992/- THE LONG TERM CAPITAL GAIN IS WORKED OUT AT RS. 34,55,244/- . 4.5 BEFORE THE LD. CIT(A), THE LD. AR HAS REITERATE D HIS CONTENTIONS AS RAISED BEFORE THE AO AND STATED THAT THE CAPITAL GA IN CANNOT BE TAXED IN THE HANDS OF THE ASSESSEE. THE LD. CIT(A) WAS FURTHER I NFORMED THAT ITO NAGAUR 9 HAS ALSO ASSESSED THE CAPITAL GAIN ON THE SALE OF T HESE PLOTS IN HANDS OF THE HUF. THE HUF IN ITS WRITTEN SUBMISSION BEFORE THE L D. CIT(A) STATED THAT CAPITAL GAIN SHOULD BE ASSESSED IN THE HANDS OF HUF . 4.6 THE LD. CIT(A) DECIDED THAT THE CAPITAL GAIN ON SALE OF PLOTS IS TO BE TAXED IN THE HANDS OF THE ASSESSEE. THE ASSESSEE IN HIS GROUND NO.1 OF THE C.O. PLEADED THAT CAPITAL GAIN SHOULD BE TAXED IN THE HANDS OF THE HUF. HOWEVER, SUCH GROUND NO. 1 OF THE C.O. WAS NOT PRES SED BY THE LD. AR OF THE ASSESSEE. THUS IT BECOMES CLEAR THAT CAPITAL GA IN ON THE SALE OF PLOTS IS TO BE TAXED IN THE HANDS OF THE ASSESSEE. 4.7 BEFORE THE LD. CIT(A), THE ASSESSEE FILED THE A FFIDAVITS OF THE BUYERS TO SHOW THAT PLOTS WERE PURCHASED BY THESE BUYERS PRIO R TO YEAR 2000. ONLY 05 PLOTS WERE REGISTERED DURING THE YEAR UNDER CONSIDE RATION. THE AO HAS ASSESSED THE CAPITAL GAIN IN RESPECT OF THE ASSUME D SALE OF THE ENTIRE LAND OF 37.5 BIGHA WITHOUT BRINGING ANY EVIDENCE ON RECORD TO ESTABLISH THAT THE ENTIRE LAND HOLDING WAS SOLD BY THE ASSESSEE DURING THE AFORESAID FOUR YEARS. THE LD. CIT(A) THEREFORE, HELD THAT SALE OF ONLY 3 PLOTS IS TO BE CONSIDERED FOR YEAR UNDER CONSIDERATION AFTER OBSERVING AS UND ER:- 4.3 I HAVE GONE CONSIDERED THE FACTS OF THE CASE AND ARGUMENTS TAKEN BY THE LD. AR . I HAVE ALSO GONE THROUGH THE PAPER BOOK. IT IS 10 SEEN THAT IN NONE OF THE SALE AGREEMENTS, ANY REFER ENCE OF SALE OF THE PLOT OF LAND ON ANY EARLIER DATE IS STATED. FURTHER , NO EVIDENCE, EXCEPT THE AFFIDAVITS OF THE BUYERS WERE FILED TO PROVE TH AT THE PLOTS OF LAND WERE SOLD PRIOR TO THE YEAR OF 2000.ON THE OTHER HA ND, THE SALE DEED SPECIFICALLY MENTION THE DATE OF TRANSFER. IT IS AL SO NOTED THAT OUT OF THE TOTAL 71 SALE DEEDS, ONLY 5 SALE DEEDS (3 SALE DEED FOR A.Y. 2002- 03,1 SALE DEED FOR A.Y. 03-04 AND 1 SALE DEED FOR A .Y. 04-05) RELATED TO THE ASSESSEE. IN THIS RESPECT, IT IS OBSERVED TH AT THE LD. AO HAS NOT BROUGHT ANY EVIDENCE ON RECORD OF SALE OF ANY PLOTS , OTHER THAN THE AFORESAID FIVE PLOTS, REGISTRY OF WHICH WAS SUPPLIE D BY THE AO DURING THE REASSESSMENT PROCEEDINGS. THEREFORE, I FIND THA T THE LD. AO WAS NOT JUSTIFIED IN PRESUMING THE EQUAL SALE OF PLOT O F LAND OF ENTIRE HOLDING OF 37.5 BIGHA IN THE AFOREMENTIONED FOUR YE ARS. IN THIS REGARD, IT IS NOTICED THAT UNDER IDENTICAL FACTS IN CASE OF APPELLANTS MOTHER (SMT. KEWAL SINGHVI), LD. CIT(A) II JAIPUR, VIDE HIS ORDER DATED 01- 9-2010, HAS REJECTED THE ACTION OF THE AO IN PRESUM ING THE SALE OF ENTIRE PLOTS OF LAND IN THE AFOREMENTIONED FOUR YEA RS AND HAS DIRECTED TO TAX ONLY THOSE PLOTS, FOR WHICH EVIDENCE OF SALE OF PLOTS WAS ON RECORD AND THE REGISTRY OF WHICH HAD TAKEN PLACE DU RING THE YEAR. 11 CONSIDERING ALL THESE FACTS, I FIND THAT DURING THE YEAR, THE ASSESSEE HAS SOLD ONLY FOLLOWING THREE PLOTS. S.N. NAME OF THE PURCHASER DATE OF DEED AREA (SQ. YDS) SALE VALUE AS PER AGREEMENT (RS.) 1. TARA CHAND MALI 31-08-2001 166.66 5,000 2. ANNARAM JAT 21-12-2001 166.66 4,000 3. KUMBHA RAM 21-12-2001 166.66 4,000 THE AO IS THEREFORE, DIRECTED TO CONSIDER SALE OF ONLY ABOVE THREE PLOTS FOR THE YEAR UNDER CONSIDERATION, FOR T HE PURPOSE OF COMPUTING THE CAPITAL GAIN. 4.8 THE LD. CIT(A) HELD THAT SECTION 50C IS NOT APP LICABLE. THE SALE VALUE IS TO BE ADOPTED ON THE BASIS OF THE CONSIDERATION SHOWN AS PER AGREEMENT. THUS CAPITAL GAIN WAS REDUCED TO RS. 9,750/- AS AGA INST RS. 35,55,244/- MADE BY THE AO. 4.9 THE LD. DR HAS FILED THE WRITTEN SUBMISSION MEN TIONING THEREIN THAT . NEITHER THE ASSESSEE NOR THE ALLEGED HUF EVER FILED THE RETURN DISCLOSING LONG TERM CAPITAL GAIN ON SALE OF LANDS IN THE RELE VANT ASSESSMENT YEARS THOUGH IT IS CLAIMED THAT THE LANDS WERE SOLD ON AG REEMENT/ MEMORANDUM BEFORE 2000. IN RESPECT OF SPECIFIC QUERY RAISED B Y THE AO, THE ASSESSEE FILED THE EVASIVE REPLY REGARDING SALE OF LAND, OWN ERSHIP OF UNSOLD LAND AND 12 NUMBER OF PLOTS ETC. SPECIFIC DETAILS HAVE ALSO NOT BEEN FILED IN THE ASSESSMENT PROCEEDINGS OF LATE SHRI NEMI CHAND SING HVI, HUF. THUS LONG TERM CAPITAL GAIN HAVE HAS NOT BEEN TAXED ON ACCOUN T OF THE REASONS THAT THE ASSESSEE HAS NOT COOPERATED WITH THE DEPARTMENT. FO R THE ASSESSMENT YEARS, 2003-04 TO 2005-06, THE LD. DR HAS SUBMITTED THAT T HE PROVISIONS OF SECTION 50C SHOULD BE CONSIDERED AS APPLICABLE. THE LD. DR SUBMITTED THAT EITHER ACTION OF THE AO IN COMPUTATION OF LONG TERM CAPITA L GAIN SHOULD BE CONFIRMED OR ALTERNATIVELY THE MATER MAY BE REFERRE D TO THE AO WITH LIMITED DIRECTION TO ASCERTAIN THE STATUS OF LAND LYING UNS OLD. IT WAS REQUESTED THAT THE TRIBUNAL SHOULD TAKE DECISION ON THE BASIS OF T HE FACTS AND SHOULD NOT DELETE THE ADDITION BY FINDING SOME FAULTS HERE AN D THERE. 4.10 ON THE OTHER HAND, THE LD. AR HAS ALSO FILED T HE PAPER BOOK CONTAINING 74 PAGES. THE LD. AR HAS MENTIONED THAT SHRI RATAN CHAND AND SHRI NEMI CHAND SINGHVI ACQUIRED AN AGRICULTURAL LAND OF 125 BIGHA IN KHASRA NO. 425 AT NAGOUR IN THE YEAR 1957. SHRI RATAN CHAND HAS TH REE SONS NAMELY SHRI GYAN CHAND, PANNE CHAND AND SHRI MADAN CHAND. SHRI VINOD CHAND IS SON OF SHRI GYAN CHAND. ON AN APPLICATION DATED 12 TH SEPT. 1979, THE SDO, NAGAUR DIRECTED THAT IN KHASRA NO. 425 THE LAND AR EA BE ENTERED AT 187 BIGHA INSTEAD OF 125 BIGHA IN THE NAME OF FIVE APPL ICANTS I.E. SHRI NEMI CHAND, SHRI GYAN CHAND, SHRI PANNE CHAND SHRI MADA N CHAND AND SHRI 13 VINOD KUMAR. AFTER THE DEATH OF SHRI GYAN CHAND, HI S SHARE IN THE PROPERTY CAME IN THE HANDS OF HIS WIFE SMT. KEVAL KANWAR AND SHRI VINOD KUMAR. DURING THE ASSESSMENT YEARS 2002-03 TO 2005-06, 71 PLOTS WERE SOLD AS PER SALE DEED AVAILABLE WITH THE AO. ONLY 05 PLOTS WERE SOLD THROUGH POWER OF ATTORNEY GIVEN TO SHRI VINOD KUMAR SINGHVI WHILE OT HERS WERE SOLD BY SHRI NEMI CHAND SINGHVI AS OWNER OR AS POWER OF ATTORNEY HOLDER OF OTHERS. IN THE CASE OF SMT. KEVAL KANWAR, THE LD. CIT(A) HAS R ESTRICTED THE CAPITAL GAIN IN RESPECT OF 44 PLOTS OUT OF 71 PLOTS. THE ASSESS EE HAS SOLD THE PLOTS PRIOR TO 01-04-2000 ON THE BASIS OF AGREEMENT TO SALE AND HA S GIVEN THE POSSESSION TO THE BUYERS AFTER RECEIVING THE SALE CONSIDERATION. THE ASSESSEE FILED THE AFFIDAVITS OF THESE BUYERS IN WHICH THEY HAVE CONFI RMED THAT THEY HAVE PURCHASED THE PLOT FROM THE ASSESSEE ON THE BASIS O F POWER OF ATTORNEY GIVEN TO SHRI NEMI CHAND SINGHVI. THUS THE PLOTS WHICH HA VE BEEN REGISTERED DURING THE YEAR WERE TRANSFERRED AS PER SALE AGREEM ENT IN EARLIER YEAR AND HENCE NO CAPITAL GAIN IS LIABLE TO BE TAXED IN THE HANDS OF THE ASSESSEE. 4.11 WE HAVE HEARD BOTH THE PARTIES. THE LAND UNDER REFERENCE HAS BEEN ACQUIRED IN THE YEAR 1957. AFTER HINDU SUCCESSION A CT, 1956, THE PROPERTY DEVOLVES ON SON IN HIS INDIVIDUAL CAPACITY ON THE D EATH OF HIS FATHER INTESTATE. WE HAVE ALSO SEEN THE DECISION OF THE SDO, NAGAUR D ATED 12 TH SEPT. 1979 IN WHICH IT WAS HELD THAT LAND IN KHASRA NO. 425 TO TH E EXTENT OF 187.5 BIGHA 14 SHOULD BE REGISTERED IN THE NAME OF FIVE PERSONS AS AGAINST 125.5 BIGHA AND ALL THE LAND SHOULD BE DIVIDED AMONGST FIVE PERSONS . THE FIVE PERSONS MENTIONED ARE SHRI NEMI CHAND, SHRI GYAN CHAND, SHR I PANNE CHAND SHRI MADAN CHAND AND SHRI VINOD KUMAR. THERE IS NO OTHE R MATERIAL EVIDENCE BEFORE US TO ASCERTAIN THE OWNERSHIP ON THE LAND O F 187.5 BIGHA. WE THEREFORE, HOLD THAT THE LAND STANDS EQUALLY DIVIDE D AMONGST FIVE OWNERS AND THE ASSESSEE IS ONE OF THE OWNER. 4.12 IN VIEW OF THE BENAMI PROHIBITION ACT, THE ASS ESSEE CANNOT CLAIM TO BE A BENAMI OF HUF. IN CASE ASSESSEE IS BENAMI HOLD ER OF THE HUF THEN AS PER BENAMI PROHIBITION ACT, SUCH LAND VESTS IN THE GOVT. THE AO HAS INFORMATION IN RESPECT OF SALE OF 71 PLOTS. BEFORE THE REVENUE, THE ASSESSEE HAS FILED THE COMPLETE DETAILS IN RESPECT OF PLOTS SOLD OR THE PLOTS REMAINING UNSOLD. MOREOVER, THE ASSESSEE HAS FILED ALL THE AF FIDAVITS OF BUYERS BEFORE THE LD. CIT(A) TO SHOW THAT PLOTS WERE TRANSFERRED IN EARLIER YEARS. IN SPITE OF THE OPPORTUNITIES PROVIDED, THE ASSESSEE HAS NOT FU RNISHED THE DETAILS BEFORE THE AO. WE THEREFORE, FEEL THAT THE MATTER IS REQUI RED TO BE RESTORED BACK ON THE FILE OF THE AO SO AS TO ENABLE HIM TO ASCERTAIN THE QUANTUM OF LAND SOLD IN VARIOUS YEARS. IN CASE THE PLOTS WERE SOLD AS PE R AGREEMENT BEFORE EXECUTION OF THE SALE DEED THEN THE AO WILL RECORD THE FINDINGS IN RESPECT OF GENUINENESS OF SUCH TRANSACTIONS. HOWEVER, IN CASE SUCH TRANSACTIONS HAVE 15 TAKEN PLACE IN EARLIER YEARS AND THE ASSESSEE DID N OT GIVE SUCH INFORMATION IN THE ORIGINAL ASSESSMENT PROCEEDINGS THEN THE AO WIL L BE FREE TO INITIATE ACTION U/S 148 OF THE ACT FOR THOSE ASSESSMENT YEAR S PROVIDED THE AO WAS HAVING THE POWER TO ISSUE NOTICE U/S 148 OF THE ACT FOR THOSE YEARS AT THE TIME WHEN THE ORIGINAL ASSESSMENT ORDER WAS PASSED. 4.13 IN CASE TRANSFERS WERE MADE PRIOR TO ASSESSMEN T YEAR 2003-04 EITHER THROUGH REGISTERED SALE DEED OR AS PER GENUINE SALE AGREEMENT THEN THE PROVISIONS OF SECTION 50C WILL NOT BE APPLICABLE. T HE AO WILL HAVE TO DETERMINE THE CAPITAL GAIN ON THE BASIS OF THE SALE CONSIDERATION SHOWN IN THE DEED UNLESS THE AO IS ABLE TO ESTABLISH THAT SALE C ONSIDERATION RECEIVED WAS MORE AS COMPARED TO THE CONSIDERATION SHOWN IN THE DEED. FOLLOWING OUR FINDINGS FOR THE ASSESSMENT YEAR 2002-03, WE HO LD THAT SUCH FINDINGS WILL BE APPLICABLE FOR THE ASSESSMENT YEAR 2003-04 TO 20 05-06. 5. NOW WE TAKE UP THE APPEALS IN RESPECT OF SMT. K EVAL SINGHVI 5.1 THE FIRST GROUND OF APPEAL IS THE SAME AS IN TH E CASE OF SHRI VINOD SINGHVI AND THESE GROUND OF APPEAL HAS ALSO NOT BEE N PRESSED IN THIS APPEAL AS THE SIMILAR GROUND OF APPEAL WAS NOT PRESSED IN THE CASE OF SHRI VINOD SINGHVI. 5.2 THE SECOND GROUND OF APPEAL IS THE SAME AS IN T HE CASE OF SHRI VINOD SINGHVI. IN THIS CASE ALSO, THE AO HELD THAT THE LA ND OWNED BY THE ASSESSEE 16 HAS BEEN SOLD IN THE FORM OF PLOTS DURING THE ASSES SMENT YEARS 2002-03 TO 2005-06 AND THEREFORE, DIVIDED THE SALE OF LAND EQU ALLY IN ALL THE FOUR YEARS TO ARRIVE AT THE CAPITAL GAIN AFTER EXCLUDING 30% O F LAND AREA BEING USED FOR PROVIDING COMMON FACILITIES. 5.3 BEFORE THE LD. CIT(A) IT WAS SUBMITTED THAT ONL Y 44 PLOTS HAVE BEEN REGISTERED IN FOUR YEARS AND HENCE CAPITAL GAIN CAN NOT BE TAXED IN THE HANDS OF ASSESSEE. IN RESPECT OF PLOTS REGISTERED, IT WA S STATED BEFORE THE LD. CIT(A) THAT THE TRANSFER TOOK PLACE EARLIER THOUGH SALE D EEDS WERE REGISTERED IN THE ASSESSMENT YEARS. 5.4 BEFORE US THE LD. AR HAS SUBMITTED AS UNDER:- IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSE SSEE VIDE LETTER DATED 11-12-2009 FLED A STATEMENT SHOWI NG DETAILS OF THE NAME OF THE PURCHASER, REGISTRY VALUE, DATE OF REGISTRY, KHASRA NO., AGREEMENT FOR SALE IN FAVOUR OF THE PER SONS, DATE OF AGREEMENT AND THE SALE VALUE AS PER AGREEMENT. FROM THIS STATEMENT, IT IS EVIDENT THAT THE ASSESSEE HAS SOLD THE PLOTS PRIOR TO 01-04-2000 ON THE BASIS OF AGREEMENT TO SALE AND GIVEN THE POSSESSION TO THE BUYER AFTER RECEIVING THE SALE CO NSIDERATION. THE LD. CIT(A) AFTER EXAMINING THE SAME ACCEPTED TH E ASSESSEE'S CONTENTION IN RESPECT OF ONE SUCH AGREE MENT ENTERED WITH SHRI KHOJARAM IN SHOES CASE THE SALE DEED WAS EXECUTED ON 28-02-2005. SIMILAR EVIDENCE IS AVAILABLE IN RESPEC T OF SALE AGREEMENT ENTERED WITH SHRI TULSIRAM ON STAMP PAPER DATED 16- 07-1988 WHERE THERE IS AN ENDORSEMENT BY SHRI TULSI RAM THAT HALF PORTION OF THE LAND PURCHASED BY HIM HAS BEEN SOLD TO SHRI MOHAN RAM AND IN CASE THE REGISTRY IS EXECUTED IN H IS NAME HAS NO OBJECTION. THE SALE DEED IN THE NAME OF SHRI MOH AN RAM WAS EXECUTED ON 28-03-04 BUT THE SAME WAS NOT ACCEP TED BY LD. CIT(A) ONLY BECAUSE IN THE SALE DEED NO REFERENCE O F THIS AGREEMENT IS GIVEN. IN CASE OF OTHER SALE DEEDS EXE CUTED IN 17 DIFFERENT YEARS ASSESSEE HAS LINKED THE SALE AGREEM ENT ENTERED BY IT ON 13-01-81 WITH VARIOUS PERSONS WHO SOLD IT TO OTHER PERSONS AND FINALLY THE SALE DEED WAS EXECUTED IN A SSESSMENT YEAR 2002-03 TO ASSESSMENT YEAR 2005-06 IN THEIR FA VOUR BY SHRI NEMI CHAND. IN RESPECT OF THESE SALE DEEDS TH E FACTUAL ASPECT COULD HAVE BEEN EXAMINED BY THE AO BY MAKING ENQUIRY FROM THESE PLOT HOLDERS WHO ARE OWNERS AND POSSESSI NG THESE PLOTS OF LANDS. HOWEVER, THIS WAS NOT DONE. THE ASS ESSEE ALSO COULD NOT GET THE CONFIRMATIONS/ EVIDENCE FROM THES E BUYERS TO SUBSTANTIATE THAT THEY HAVE PURCHASED THE LAND FROM PERSON TO WHOM ASSESSEE HAS SOLD THE LAND THROUGH AGREEMENT T O SALE IN EARLIER YEARS. THEREFORE, IN THE INTEREST OF JUSTIC E AND TO ASCERTAIN THE CORRECT FACTS, IN CASE THE CLAIM OF T HE ASSESSEE IS NOT ACCEPTED, THE MATER BE SENT BACK TO THE AO ONLY FOR THE PURPOSE OF VERIFYING FROM THE PRESENT OWNER OF THE LAND/ PLOTS AS TO WHEN AND FROM WHOM THEY PURCHASED THE PLOT AN D WHOSE REGISTRY WAS EXECUTED BY THE ASSESSEE IN THE ASSESS MENT YEARS UNDER CONSIDERATION. 5.5 THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORIT IES BELOW. 5.6 WE HAVE HEARD BOTH THE PARTIES. THE REVENUE IS NOT IN APPEAL BEFORE US AND THE LD. AR IN WRITTEN SUBMISSION IN THE CASE OF SHRI VINOD SINGHVI HAS MENTIONED THAT THE REVENUE HAS NOT FILED APPEAL. HE NCE THE DISPUTE BEFORE US IS IN RESPECT OF SALE DEEDS REGISTERED DURING THE A SSESSMENT YEARS UNDER CONSIDERATION. DEFINITION OF TRANSFER IS GIVEN IN S ECTION 2(47) OF THE INCOME TAX ACT, SALE DEEDS ALSO SHOW THE TRANSFER OF PLOTS AND IN CASE THE ASSESSEE IS ABLE TO ESTABLISH THAT POSSESSION WAS GIVEN BY T HE ASSESSEE IN PART PERFORMANCE OF THE CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT THEN TRANSFER FOR THE PURP OSE OF CAPITAL GAIN WILL BE 18 THE DATE WHEN POSSESSION GIVEN. HENCE THE ISSUE OF CHARGEABILITY OF CAPITAL GAIN ON THE PLOTS REGISTERED BY SALE DEEDS DURING T HE YEAR IS RESTORED BACK ON THE FILE OF THE AO. 6. IN THE RESULT, THE APPEALS OF THE REVENUE ARE PA RTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTIONS OF TH E ASSESSEE ARE PARTLY ALLOWED PERTAINING TO SHRI VINOD SINGHVI. THE APPEA LS PERTAINING TO SMT. KEVAL SINGHVI ARE ALSO ALLOWED FOR STATISTICAL PURP OSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30-06 -2011. SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED; 30/06/2011 *MISHRA COPY FORWARDED TO :- 1. SHRI VINOD SIGHVI, JAIPUR 2. SMT. KEVAL SINGHVI, JAIPUR 3. THE ITO WARD- 7 (3), JAIPUR 4. THE ITO WARD- 5 (3), JAIPUR 5. THE LD. CIT BY ORDER 6. THE LD. CIT(A) 7. THE LD.DR 8. THE GUARD FILE (ITA NO.1402 TO 1405/JP /10 ) A.R, ITAT, JAIPUR 19 20