Appeal Details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 0319 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
10 year(s) 25 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
16-05-2019
Appeal Filed By
Assessee
Bench Allotted
DB
Next Hearing Date
24-08-2010
Assessment Year
2004-2005
Appeal Filed On
21-04-2009
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.163/AGR/2009 ASST. YEAR: 2004-05 SMT. KUSUM SINGH, VS. THE INCOME-TAX OFFICER, PROP. M/S PANCHALI BEAUTY PARLOUR, WARD 1(2), AG RA. SHOP NO.2, DELHI GATE, AGRA. (PAN : AKYPS 4249 P). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C. AGARWAL, ADVOCATE RESPONDENT BY : SHRI VINOD KUMAR, D.R. ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 13.02.2009 BY TAKING THE FOLLOWING EFFECTIVE GROUND S OF APPEAL :- 1. BECAUSE THE APPELLANT SUBMITTED THE AMPLE EVIDE NCE BEFORE THE LEARNED AUTHORITIES BELOW THAT THE PLOT IN QUESTION SOLD BY THE ASSESSEE ON A LESSER RATE AS COMPARED TO CIRCLE RATE WAS ON ACCOUNT OF VARIOUS R EASONS MAINLY INFESTED AND OCCUPIED BY LOWER COMMUNITY DISPUTED TITLE IN THE L ITIGATION AND APART OF THE PLOT MEASURING ABOUT 113 SQ. M. WAS UNDER ACQUISITION BY THE ADA BEING UNDER MASTER PLAN ROAD PREPARED BY THE AUTHORITIES. AS S UCH IT COULD FETCH MUCH SELLING PRICE. THE LEARNED AUTHORITIES BELOW HAVE ERRED IN NOT APPRECIATING THIS FACT AND HAVE ARBITRARILY ERRED IN RELYING ON THE REPORT OF THE VALUATION CELL, WHICH WAS JUST EXPARTE REPORT WITHOUT CONSIDERING ALL THESE R EASONS. 2. BECAUSE AMPLE MATERIAL AND EVIDENCE WAS ON RECOR D OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) TO SHOW THE VA LUE OF THE OTHER COMPARABLE CASES AND ALSO PAPERS OF LITIGATION OF DISPUTED TIT LE AND LETTER FROM ADA 2 CONFIRMING THE ACQUISITION OF THE PLOT. THE LEARNE D CIT(A) HAS NOT BEEN JUSTIFIED IN REJECTING ALL THE EVIDENCES SUMMARILY AND THE FA CT THAT THE COMPENSATION WILL BE RECEIVED FOR THE ACQUISITION WHEN THE LAND IS ACQUI RED BY THE ADA IGNORING THE FACT THAT HUGE LITIGATION IS INVOLVED IN PROCURING THE COMPENSATION ON ACCOUNT OF WHICH THE PROSPECTIVE BUYER WILL NEVER PART WITH TH E FULL VALUE OF THE PLOT TO THE SELLER. THE LEARNED CIT(A) HAS ERRED IN ARBITRARIL Y RELYING ON THE REPORT OF THE VALUATION CELL WITHOUT APPRECIATING THE POINTS SUBM ITTED BY THE ASSESSEE AND ADOPTING THE VALUE OF THE PLOT AT RS.6,90,000/- IN PLACE OF RS.3,50,000/- SHOWN BY THE ASSESSEE. . 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E SOLD AN OPEN PLOT OF LAND MEASURING 288.68 SQ. MTR. FOR RS.3,50,000/- ON WHICH STAMP DU TY WAS PAID AMOUNTING TO RS.72,200/- ON THE BASIS OF VALUE WORKED OUT BY THE STAMP VALUATION AU THORITY AT RS.7,22,000/- @ RS.2,500/- PER SQ. MTR.. THE A.O., IN VIEW OF THE PROVISIONS OF S ECTION 50C, AFTER RECORDING THE REASONS, ISSUED NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 196 1 (THE ACT HEREINAFTER). THE ASSESSEE STATED THAT THE ORIGINAL RETURN FILED BE TREATED AS FILED IN COMPLIANCE OF THE NOTICE UNDER SECTION 148 OF THE ACT. THE A.O. ASKED THE ASSESSEE TO SHOW WHY T HE SALE CONSIDERATION SHOULD NOT BE TAKEN AT RS.7,22,000/- AS PER THE PROVISIONS OF SECTION 50C OF THE ACT. THE ASSESSEE POINTED OUT THAT THE SAID PROPERTY WAS ORIGINALLY SOLD BY ONE SHRI LALLO ALIAS RAM LAL AND KUMUM & MUNNA S/O. SHRI CHHUNNA MAL TO SHRASTI SAHAKARI SAMITI THROUGH SHRI GIRRAJ SINGH RANA BY SALE DEED DATED 18.05.1983. SHRI GIRRAJ SINGH RANA SOLD THE PROPER TY TO THE ASSESSEE. SUBSEQUENTLY, ONE SHRI RADHEY SHYAM VERMA FILED A SUIT NO.1105 OF 1983 IN THE COURT OF ADDITIONAL MUNSIF, AGRA IN WHICH THE ASSESSEE WAS IMPLICATED AS A PARTY. IN T HIS SUIT, IT WAS CLAIMED THAT THE IMPUGNED PROPERTY WAS A TRUST PROPERTY HAVING A TEMPLE OF SH IVAJI MAHARAJ WITH AN ATTACHED DHARAMSHALA AND THUS A PLACE OF PUBLIC WORSHIP. A PRAYER WAS M ADE TO ISSUE A PERMANENT INJUNCTION TO RESTRAIN THE ASSESSEE FROM SELLING THE PROPERTY. T HE SUIT WAS DECIDED AGAINST THE ASSESSEE. THEREAFTER, THE ASSESSEE FILED A SUIT BEFORE THE DI STRICT COURT, AGRA IN REVISION NO.78 OF 1986 WHICH IS STILL PENDING. IN THE MEANTIME, THE ASSES SEE SOLD THE IMPUGNED PLOT. CONSIDERING THE 3 DEFECT IN THE TITLE, THE ASSESSEE REALISED A MUCH L ESSER VALUE THAN THE FAIR MARKET VALUE. THUS, IT WAS CONTENDED BEFORE THE A.O. THAT THE VALUE SHOWN IN THE SALE DEED DESERVES TO BE ACCEPTED INSTEAD OF THE VALUE DETERMINED BY THE STAMP VALUAT ION AUTHORITY. THE A.O. REFERRED THE PROPERTY FOR VALUATION TO THE DEPARTMENTAL VALUER VIDE LETTE R DATED 10.05.2007 WHO VIDE REPORT DATED 30.08.2007 DETERMINED THE FAIR MARKET VALUE OF THE LAND AT RS.6,90,000/-. THE ASSESSEE ALSO DISPUTED THE VALUE DETERMINED BY THE D.V.O. ON THE FOLLOWING BASIS :- I) THE D.V.O. STATED THAT THE VALUE OF RS.6,90,000/ - HAS BEEN DETERMINED ON THE BASIS OF A COMPARABLE SALES INSTANCE COLLECTED FROM THE REGIST RARS OFFICE. COPY OF THE COMPARABLE SALE INSTANCE ALTHOUGH SPECIFICALLY DEMANDED BY THE ASSESSEE, THE SAME WAS NOT SUPPLIED. II) THAT THE IMPUGNED LAND WAS A DISPUTED ONE. LIT IGATION OVER THE SAME WAS GOING ON. THE CLAIM HAS BEEN REJECTED BY THE D.V.O. ARBITRARILY O N THE GROUND THAT THE PRESENT STATUS IS NOT KNOW. III) THE ASSESSEE HAS SUBMITTED THE REGISTERED VALU ERS REPORT ON 11.07.2007 WHO VALUED THE LAND AT RS.3,18,000/- IN WHICH THE VALUER HAS POINT ED OUT THAT THE PLOT IS SITUATED NEAR 80 FT. WIDE MASTER PLAN ROAD AND 25 FT. WIDE STRIP OF LAND HAS TO BE LEFT FOR ROAD WIDENING SO THAT THE USABLE AREA WOULD BE ONLY 159 SQ. MTR. TH E D.V.O. HAS NOT COMMENDED ON THIS, STATING THAT NO EVIDENCE WAS FURNISHED BY THE ASSES SEE WHEREAS THIS FACT IS DULY VERIFIABLE FROM THE A.D.A., AGRA AND U.P. AVAS EVAM VIKAS PARI SHAD, AGRA. 4 3. THE A.O. ADOPTED THE VALUE DETERMINED BY THE D.V .O. AT RS.6,90,000/- REJECTING THE CONTENTION OF THE ASSESSEE. THE ASSESSEE WENT IN A PPEAL BEFORE THE CIT(A). THE CIT(A) REFERRED THE SAID CONTENTION TO THE D.V.O. THE D.V.O. FORWA RDED COPY OF THE FOLLOWING COMPARATIVE INSTANCE :- NAME OF SELLER SHRI YATENDRA PAL SINGH S/O RAGHURA J SINGH R/O 10/85, BERI BAGH, AGRA. NAME OF PURCHASER SHRI RAM BABU BHARDWAS S/O BALBI R SINGH AREA OF LAND 400 SQ. YD., 334.44 SQ. MT. 19/79/1 DATE OF SALE INSTANCE 21.02.2003 DETAILS OF SALE BANAMA -8. LACK, PAPER 8.10 LACK RATE PER SQ. MT. 2392.00 SQ. MT. AMOUNT AS PER SALE DEED RS.8,40,000/- REMARKS AS PER REGISTRARS OFFICE BAHI NO.3689 PAGE 211/228, SILSILA NO.1018 4. THE CIT(A) LOOKED INTO THE COMPARATIVE INSTANCE FILED BY THE ASSESSEE. THE CIT(A) ALSO EXAMINED THE ISSUE WHETHER THE LAND WAS UNDER LITIG ATION AND ULTIMATELY HE DISMISSED THE APPEAL FILED BY THE ASSESSEE. 5. THE LD. A.R. BEFORE US REITERATED THE SUBMISSION S MADE BEFORE THE CIT(A) AND CONTENDED THAT THE VALUE OF THE LAND WAS NOT MORE THAN RS.3,1 8,000/-. OUT OF THIS PLOT, 129.7 SQ. MTR. OF LAND HAS BEEN ACQUIRED BY AGRA DEVELOPMENT AUTHORIT Y (ADA) FOR ROAD WIDENING. THERE WILL BE ONLY 159 SQ. MTR. OF LAND WHICH CAN BE USED. CIRCL E RATE OF THE AREA IS RS.2,500/- PER SQ. MTR. THUS, THE VALUE OF THE LAND BY APPLYING CIRCLE RATE WILL BE RS.3,97,500/- WHICH HAS TO BE FURTHER REDUCED ON ACCOUNT OF DISTRESS SALE OF LAND BEING U NDER LITIGATION BY 20% I.E. BY RS.79,500/-. THE MARKET VALUE, THEREFORE, WILL BE RS.3,18,000/-. IT WAS POINTED OUT THAT THE A.D.A. HAS ALSO CONFIRMED VIDE LETTER DATED 30.01.2009 THAT 113.475 SQ. MTR. OF LAND WILL BE ACQUIRED BY THE 5 A.D.A. AND THE ASSESSEE WILL BE LEFT ONLY WITH 175. 20 SQ. MTR. OF LAND. THUS, IT WAS POINTED OUT THAT THE VALUE IN ANY CASE WILL NOT EXCEED RS.3,50, 000/-. IT WAS ALSO POINTED OUT THAT THE LITIGATION OVER THE TITLE OF THE LAND IS ALSO IN EXISTENCE AND THE CASE IS PENDING BEFORE THE COURT OF ADDITIONAL MUNSIF, AGRA IN SUIT NO.1105 OF 1983 AND IN CIVIL REVISION NO.78 OF 1986 IN AJIT SINGH VS. RADHEY SHYAM. 6. LD. D.R., ON THE OTHER HAND, REFERRED TO THE PRO VISIONS OF SECTION 50C AND POINTED OUT THAT IT IS INCUMBENT ON THE A.O. TO ADOPT THE VALUE AS P ER STAMP DUTY TO BE THE SALE CONSIDERATION. EVEN THE A.O. MADE THE REFERENCE TO THE D.V.O. WHO HAS VALUED THE PROPERTY AT RS.6,90,000/- AND ACCORDINGLY THE A.O. WAS FAIR ENOUGH TO ADOPT T HE SALE CONSIDERATION AT RS.6,90,000/-. REFERRING TO PAGE 17 OF THE PAPER BOOK, IT WAS POIN TED OUT THAT THE OBJECTIONS TAKEN BY THE ASSESSEE WERE DULY CONSIDERED BY THE D.V.O. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD. WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 50C OF THE INCOME-TAX ACT, 1961. THIS SECTION PROVIDES AS UNDER :- 50C. SPECIAL PROVISION FOR FULL VALUE OF CONSIDERA TION IN CERTAIN CASES.- (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING A S A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF A STATE GOV ERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE STAMP VALUATION AUTHORI TY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALU E SO ADOPTED OR ASSESSED SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. 6 8. FROM THE PERUSAL OF THE AFORESAID SECTION, IT IS APPARENT THAT IF THE CONSIDERATION SHOWN IN THE SALE DEED IS LESS THAN THE VALUE ADOPTED FOR TH E PURPOSE OF STAMP DUTY, THE VALUE ADOPTED FOR THE PURPOSE OF STAMP DUTY SHALL BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING TO THE TRANSFEROR. SUB-SECTION 2 OF THIS SECTION ALSO PROVIDES THAT IN CASE THE ASSESSEE CLAIMS THAT THE VALUE ADOPTED UNDER THE STAMP ACT I S MORE THAN THE FAIR MARKET VALUE OF THE PROPERTY, AND SUCH VALUE HAS NOT BEEN DISPUTED IN A NY APPEAL OR REVISION OR NO REFERENCE BEFORE ANY AUTHORITY OR HIGH COURT, THE A.O. MAY REFER THE VALUATION OF SUCH CAPITAL ASSETS TO THE VALUATION OFFICER IN ACCORDANCE WITH THE PROVISIONS OF SECTION 16A OF THE WEALTH TAX ACT AND THE PROVISIONS OF SECTION 34AA, 35 AND SECTION 37 O F THE WEALTH TAX ACT WILL APPLY. THE VALUE SO ASCERTAINED SHALL BE TAKEN THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER. IN THIS CASE, THE ASSESSEE HAS SOLD THE IMPUGNED PROPERTY MEASURING 288.68 SQ. MTR., AS CLAIMED, FOR RS.3,50,000/- VIDE SALE DEED DATED 21.04.2003. THE COPY WAS PLACED BEFORE US. THE STAMP DUTY HAS BEEN PAID ON VALUATION OF RS.7,2 2,000/- ADOPTING THE MARKET VALUE @ RS.2,500/- PER SQ. MTR. THE ASSESSEE OBJECTED TO T HE VALUATION. ACCORDINGLY, THE ASSESSING OFFICER REFERRED THE VALUATION TO THE D.V.O. WHO WO RKED OUT THE VALUE AT RS.6,90,000/- ON THE BASIS OF THE COMPARABLE INSTANCE COLLECTED FROM THE REGISTRARS OFFICE. THE ASSESSEE HAS SUBMITTED THE REGISTERED VALUERS REPORT AND CLAIME D THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF SALE AT RS.3,18,000/-. THE FIRST CONTE NTION OF THE LD. A.R. RELATES TO THE CLAIM THAT 129.7 SQ. MTR. LAND IS TO BE ACQUIRED BY AGRA DEVEL OPMENT AUTHORITY FOR ROAD DEVELOPMENT AND THIS PORTION OF THE LAND WILL NOT FETCH ANY VALUE A S THE REGISTERED VALUER, SHRI N.C. JAIN, HAS REDUCED THIS MUCH AREA WHILE ESTIMATING THE FAIR MA RKET VALUE. WE HAVE GONE THROUGH THE LETTER DATED 30.01.2009 OF THE AGRA DEVELOPMENT AUTHORITY WHICH ALSO STATES THAT THE IMPUGNED PROPERTY IS SITUATED ON 24 METER WIDE ROAD. AN ARE A OF 113.475 SQR. MTR. OF THE LAND WILL HAVE TO 7 BE LEFT FOR ROAD WIDENING FROM THE SAID PROPERTY. ON THE BASIS OF THE LETTER OF THE AGRA DEVELOPMENT AUTHORITY, IT IS 113.475 SQ. MTR. OF TH E LAND NOT 129.7 SQ. MTR. OF THE LAND HAS TO BE LEFT FOR ROAD WIDENING. IN OUR OPINION, EVEN IF TH E LAND HAS TO BE ACQUIRED BY THE AGRA DEVELOPMENT AUTHORITY FOR ROAD WIDENING, THE OWNER OF THE LAND WILL BE ENTITLED FOR THE COMPENSATION UNDER THE LAND ACQUISITION ACT, 1894. THE COMPENSATION HAS TO BE DETERMINED ON THE BASIS OF THE FAIR MARKET VALUE. THEREFORE, WE DO NOT AGREE WITH THE VALUATION REPORT OF THE REGISTERED VALUER THAT THIS PORTION OF THE LAND WIL L NOT HAVE ANY MARKET VALUE. WE, THEREFORE, DO NOT AGREE WITH THE LD. A.R. THAT THE AREA OF 129.7 SQ. MTR. OF THE LAND HAS TO BE REDUCED WHILE WORKING OUT THE FAIR MARKET VALUE OF THE LAND SOLD. 9. THE SECOND CONTENTION TAKEN BY THE LD. A.R. IS T HAT THE TITLE OF THE PROPERTY WAS UNDER LITIGATION AT THE TIME OF SALE OF LAND. THE LD. A. R. EVEN THOUGH FURNISHED BEFORE US COPY OF THE PETITION IN CIVIL REVISION SUIT NO.78 OF 1986 RELAT ING TO THE SAID PROPERTY BUT DID NOT FILE ANY DOCUMENT SHOWING THE SUBSEQUENT DEVELOPMENT IN THE SUIT IN THE SHAPE OF ANY INTERIM ORDER ETC, PASSED BY THE COURT WHICH MAY PROVE THAT THE SUIT W AS PENDING AS ON THE DATE OF SALE. WE HAVE ALSO GONE THROUGH THE SALE DEED AND IN THE SALE DEE D, AT PAGE NO.8 WE FIND THAT THE SELLER HAS ASSURED THE PURCHASER THAT THE SAID PROPERTY IS FRE E FROM ALL THE ENCUMBRANCES AND THE TITLE OF THE SAID PROPERTY IS NOT UNDER DISPUTE AND IN CASE ANY CONTRARY THING IS FOUND SUBSEQUENTLY, THE SELLER IS BOUND TO COMPENSATE THE PURCHASER. FROM THE SAL E DEED, IT APPEARS THAT THE BUYER IS A BONAFIDE BUYER AND IS NOT AWARE OF THAT THE TITLE OF THE PRO PERTY IS UNDER DISPUTE. THEREFORE, IN OUR OPINION, THIS WILL NOT EFFECT THE FAIR MARKET VALUE OF THE PROPERTY. UNDER THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT NO INTERFERE NCE IS CALLED FOR IN THE ORDER OF THE CIT(A). WE, ACCORDINGLY, CONFIRM THE ORDER OF THE CIT(A) 8 ITA NO.163/AGR/2009 ASST. YEAR: 2004-05 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STA NDS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 08.10.2010). SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 8 TH OCTOBER, 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY
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