ACIT, New Delhi V. Mr. Satya Parkash Shokeen, New Delhi

ITA 2057/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81966 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 30-10-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 02-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Capital asset; Fair market value; Corroborative evidences; Non compliance; Onus to prove
• Section: 50C; 142(1); 37; 144

Judgement Text

ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A. N O S . 2057 & 2058 /DEL/201 2 A.Y . : 200 5 - 0 6 ACIT, CIRCLE 25(1), 315 - D, 3 RD FLOOR, ROOM NO. 315 - D, VIKAS BHAVAN, NEW DELHI VS. MR. SATYA PARKASH SHOKEEN, A - 99, MAIN ROAD, CHHAWLA VILLAGE, NEW DELHI (PAN: AXQPS5435A) (APPELLANT) (RESPONDENT) AND I.T.A. N OS. 2055 & 2056/DEL/2012 A.Y . : 2005 - 06 ACIT, CIRCLE 25(1), 315 - D, 3 RD FLOOR, ROOM NO. 315 - D, VIKAS BHAVAN, NEW DELHI VS. MRS. PREETI SHOKEEN, A - 99, MAIN ROAD, CHHAWLA VILLAGE, NEW DELHI (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI VIKRAM SAHAY, SR. DR ASSESSEE BY : SH RI PIYUSH KAUSHIK, ADV. DATE OF HEARING : 30 - 10 - 2014 DATE OF ORDER : 31 - 10 - 2014 ORDER PER BENCH REVENUE HAS FILED TH ESE A PPEAL S AGAINST THE SEPARATE IMPUGNED ORDER S ALL DATED 29.2.2012 PASSED BY THE LD. CIT(A) - XXIV, ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 2 NEW DELHI U/S. 144/ 271(1) (C) OF THE I.T. ACT, 1961 RESPECTIVELY IN RESPECT OF SEPARATE ASSESSES RELEVANT TO ASSESSMENT YEAR 200 5 - 0 6. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND IDENTICAL, HENCE, THESE ARE BEING CONSOLIDATE D AND DIS POSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN ITA NO. 2057/DEL/2012 (A.Y. 2005 - 06) : - (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS. 42,19,375/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ACCEPTING SELF SERVING DOCUMENTS NOT CORROBORATED BY CROSS EXAMINATION OR PRODUCED BEFORE THE AO. (III) SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE M ATTER BACK TO THE AO TO RE - EXAMINE FRESH EVIDENCE IN A HOLISTIC MANNER AND AS PER LAW. THE APPELLANT CRAVES THE RIGHT TO ADD ANY OTHER GROUND OF APPEAL. 3. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN ITA NO. 205 8 /DEL/2012 (A.Y. 2005 - 06): - (I) ON THE FACT S AND CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS. 13 , 88 , 590 / - IMPOSED U/S. 271(1)(C) OF THE I.T. ACT, 1961. ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 3 (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ACCEPTING SELF SERVING DOCUMENTS NOT COR ROBORATED BY CROSS EXAMINATION OR PRODUCED BEFORE THE AO. (III) SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE AO TO RE - EXAMINE FRESH EVIDENCE IN A HOLISTIC MANNER AND AS PER LAW. THE APPELLANT CRAVES THE RIGHT TO ADD ANY OTHER GR OUND OF APPEAL. 4. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN ITA NO. 2055/DEL/2012 (A.Y. 2005 - 06): - (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS. 42,19,375/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ACCEPTING SELF SERVING DOCUMENTS NOT CORROBORATED BY CROSS EXAMINATION OR PRODUCED BEFORE THE AO. (III) SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE AO TO RE - EXAM INE FRESH EVIDENCE IN A HOLISTIC MANNER AND AS PER LAW. THE APPELLANT CRAVES THE RIGHT TO ADD ANY OTHER GROUND OF APPEAL. 5. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN ITA NO. 2056/DEL/2012 (A.Y. 2005 - 06): - ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 4 (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE CIT(A) ERRED IN DELETING THE ADDITION OF RS. 13,88,590/ - IMPOSED U/S. 271(1)(C) OF THE I.T. ACT, 1961. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ACCEPTING SELF SERVING DOCUMENTS NOT CORROBORATED BY CROSS EXAMINATION OR PRODUCED BEFORE THE AO. (III) SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE AO TO RE - EXAMINE FRESH EVIDENCE IN A HOLISTIC MANNER AND AS PER LAW. THE APPELLANT CRAVES THE RIGHT TO ADD ANY OTHER GROUND OF APPEAL. 6. BRIEFLY STAT ED THE FACTS ARE THAT AS PER THE AIR INFORMATION WAS RECEIVED FROM THE CIT(CIB)/DELHI VIDE REFERENCE NO. CIT(CIB)/DELHI/GSL562 FOR TRANSACTION OF RS. 42,19,375/ - . NOTICE U/S. 142(1) WAS ISSUED AND SERVED ON THE ASSESSEE BY SPEED POST AT THE LAST AVAILABL E ADDRESS IN THE RECORD. THE SAME HAS NOT BEEN RECEIVED BACK HENCE TREATED AS SERVED. NOBODY ATTENDED. ANOTHER NOTICE WAS SENT TO COM PLY ON 4.12.2007 FIXING THE CASE FOR HEARING ON 12.12.2007. NOBODY ATTENDED. IN VIEW OF THE NON COMPLIANCE OF THE SAID NOTICES, THE AO DECIDED TO PASS THE ORDER EXPARTE U/S. 144 OF THE ACT TREATING RS. 42,19,375/ - AS UNACCOUNTED INVESTMENT IN PROPERTY AND INITIATED PENALTY PR OCEEDINGS U/S. 271(1)(C). NOTICE U/S. 274 READ WITH SECTION 271(1)(C) WAS ISSUED ON 28.12.2007 FIXING THE CASE FOR 15.1.2008. HOWEVER, NOBODY ATTENDED. SHOW CAUSE NOTICE U/S. 271(1)(C) WAS ISSUED ON 23.6.2008, FIXING THE CASE FOR 27.6.2008. AGAIN, NOBO DY ATTENDED AND THEREFORE, THE AO IMPOSED PENALTY AMOUNTING TO RS. 13,88,590/ - ON THE ASSESSEE U/S. 271(1)(C) OF THE ACT. ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 5 7. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 29.2.20 12 HAS ALLOWED THE APPEAL OF THE ASSESSEE. 8. AGAINST TH E ABOVE ORDER OF THE LD. CIT(A), REVENUE IS IN APPEAL BEFORE US. 9. LD. COUNSEL OF THE ASSESSEE HAS FILED THE SYNOPSIS ALONGWITH THE COPY OF THE JUDGMENTS OF THE HON BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. KHOOBSURAT RESORTS P LTD. IN ITA NO. 776/2011 VIDE ORDER DATED 5.11.2012 AND ITAT, DELHI BENCH (TO WHICH, ONE OF US THE JUDICIAL MEMBER WAS THE PARTY) IN THE CASE OF ITO VS. SMT. HIMALI BANSAL IN ITA NO. 3235/DEL/2013 (AY 2008 - 09) VI DE ORDER DATED 13.8.2014. LD. COUNSEL STATED THAT ASSESSEE IS A PURCHASER OF PROPERTY AND NOT A SELLER OF PROPERTY. HE ALSO SUBMITTED THAT THE ADDITION IN THE HANDS OF THE ASSESSEE BEING A PURCHASER HAS BEEN MADE ONLY ON THE BASIS OF DIFFERENCE BETWEEN THE CIRCLE RATE OF PROPERTY AND THE PRICE AS PER THE REGISTERED SALE DEED. BASED ON THE SAID ADDITION PENALTY U/S. 271(1)(C) HAS ALSO BEEN IMPOSED BY THE AO. LD. COUNSEL OF THE ASSESSE E HAS ALSO SUBMITTED THAT THE AFORESAID ISSUE INVOLVED BEFORE THE BENC H IS SQUARELY COVERED BY THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT AND BY THE DECISION OF THE CO - ORDINATE BENCH OF THE DELHI, ITAT. 10. LD. DR ON THE OTHER HAND RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 11. WE HAVE HEARD BOTH THE COUNSE L AND PERUSED THE RECORDS, ESPECIALLY THE ORDERS OF THE LOWER AUTHORITIES AND JUDGMENTS CITED BY THE LD. COUNSEL OF THE ASSESSEE. WE FIND CONSIDERABLE COGENCY IN THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE THAT THE ISSUE IS COVERED IN FAVOR OF THE ASSESSEE, IN VIEW OF THE JUDGMENT OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KHOOBSURAT RESORTS P LTD. IN ITA NO. 776/2011 WHEREIN THE HON BLE HIGH COURT HAS ADJUDICATED THE MATTER AS UNDER: - ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 6 12. AS FAR AS THE FIRST QUESTION IS CONCERNED, THIS COURT NOTICES THAT WITH THE AMENDMENT TO THE ACT, AND INSERTION OF SECTION 50 - C, A PRESUMPTION CAN BE DRAWN THAT PROPERTY WAS SOLD FOR A HIGHER VALUE FOR DETERMINING CAPITAL GAINS, IN CASE OF THE VALUATION INDICATED BY THE ASSESSEE TO THE STAMP AUTHORITIES, BEING HIGHER THAN THE CONSIDERATION DISCLOSED IN THE SALE DEED OR CONVEYANCING INSTRUMENT. THAT PROVISION READS AS FOLLOWS: 50C. SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES, (1) WHERE THE CONSIDERATION RECEIV ED O ACCRUING AS 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 GOVERNMENT (HEREINAFTER IN THIS SECTION REFERRED TO AS THE STAMP VALUATION AUTHORITY ) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE 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 . (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB - SECTION (1), WHERE - (A) THE ASSESSEE CLAIMED BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUBSECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROP ERTY AS ON THE DATE OF TRANSFER; ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 7 (B) THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB - SECTION (I) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT THE ASSESSING OFFICER MAY REFER THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS MADE, THE PROVISIONS OF SUB - SECTIONS (2), (30, (4), (5) AND (6) OF SECTION 16A, CLAUSE (I) OF SUB - SECTION {1) AND SUBSECTIONS (6) AND (7) OF SECTION 23A SUB - SECTION (5) OF SECTION 24, SECTION 34 A A. SECTION 35 AND SECTION 37 OF THE WEALTH - TAX, ACT, 1967 {27 OF I957) SHALL. WITH NECESSARY MODIFICATIONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUBSECTION (1) OF SECTION 16A OF THAT ACT. EXPLANATION FOR THE PURPOSES OF THIS SECTION VALUATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH - TAX ACT, 1957 (27 OF 1957). (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB - SECTION (2), WHERE THE VALUE ASCERTAINED UNDER SUB - SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB - SECTION (1), THE VALUE SO ADOPTED OR ASSESSED BY SUCH AU THORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION RECEIVED ON ACCRUING AS A RESULT OF THE TRANSFER. ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 8 13. IT IS APPARENT FROM THE ABOVE PROVISION THAT A PRESUMPTION THAT THE SALE PRICE IS HIGHER CAN BE DRAWN, IF THE CIRCUMSTANCES SPELT OUT IN S ECTION 50 - C ARE FULFILLED. THIS PROVISION WAS CHALLENGED BEFORE THE MADRAS HIGH COURT, IN K.R.PALANISAMY V. UNION OF INDIA, [2008] 306 ITR 61 (MAD). THE COURT REPELLED THE CHALLENGE, BUT NEVERTHELESS HELD THAT: SUB - SECTIONS (2) AND (3) OF SECTION 50C PR OVIDES FURTHER SAFEGUARD TO THE ASSESSEE, IN THE SENSE THAT IF THE ASSESSEE CLAIMS BEFORE THE ASSESSING OFFICER THAT THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITIES EXCEEDS THE FAIR MARKET VALUE AND THE VALUE SO ADOPTED OR ASSESSED FOR THE PURPOSE OF STAMP DUTY HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION BEFORE ANY AUTHORITY, THE ASSESSING OFFICER COULD REFER THE VALUATION OF THE CAPITAL ASSET TO THE DEPARTMENTAL VALUATION OFFICER. ON SUCH REFERENCE, IF THE VALUE DETERMINED BY THE VALUATION OFFICER IS M ORE THAN THE VALUE ADOPTED OR ASSESSED BY THE STAMP DUTY AUTHORITY, THE ASSESSING OFFICER SHALL ADOPT THE MARKET VALUE AS DETERMINED BY THE STAMP DUTY AUTHORITY. THUS, A COMPLETE FOOLPROOF SAFEGUARD HAS BEEN GIVEN TO THE ASSESSEE TO ESTABLISH BEFORE THE AU THORITIES CONCERNED THE REAL VALUE. THUS, WHAT IS STATED IN SECTION 50C AS A REAL VALUE CANNOT BE REGARDED AS A NOTIONAL OR ARTIFICIAL VALUE AND SUCH REAL VALUE IS DETERMINABLE ONLY AFTER HEARING THE ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 9 ASSESSEE AS PER THE STATUTORY PROVISIONS STATED SUPRA. T HERE IS NO INDICATION EITHER IN THE PROVISIONS OF SECTION 50C OF INCOME - TAX ACT OR SECTION 47A OF THE STAMP ACT OR RULES MADE THEREUNDER ABOUT THE ADOPTION OF THE GUIDELINE VALUE. HENCE, THE CONTENTION THAT THE SECTION 50C IS ARBITRARY AND VIOLATIVE OF ART ICLE 14 CANNOT BE ACCEPTED. THE FICTION CREATED BY VIRTUE OF SECTION 50C APPLIES ONLY IN RESPECT OF ESCAPED INCOME OF A SELLER, FOR THE DETERMINATION OF THE TRUE CAPITAL GAIN. SUCH A SPECIAL PROVISION HAS TO BE CONSTRUED NARROWLY, HAVING REGARD TO THE S UBJECT MATTER, AND THE EXTENSION OF THE FICTION OR PRESUMPTION IN RESPECT OF ANY MATTER NOT COVERED BY IT IS UNAUTHORIZED BY THE LAW. THERE IS A BODY OF JUDICIAL AUTHORITY ON THIS ASPECT (GARDEN SILK MILLS LTD V UNION OF INDIA AIR 2000 SC 33; UNION OF INDI A V SAMPAT RAJ DUGAR AIR 1992 SC 1417). THE PRINCIPLE WAS PROPOUNDED PITHILY BY THE SUPREME COURT IN BENGAL IMMUNITY CO. LTD V STATE OF BIHAR AIR 1955 SC 661 AS FOLLOWS: A LEGAL FICTION IS TO BE LIMITED TO THE PURPOSE FOR WHICH IT WAS CREATED AND SHOULD N OT BE EXTENDED BEYOND THAT LEGITIMATE FIELD.. 14. THIS COURT ALSO RECOLLECTS THE DECISION IN K.P. VARGHESE V INCOME - TAX OFFICER [1981] 131 ITR 597 (SC) WHERE IT WAS HELD (IN THE CONTEXT OF AMENDMENT TO SECTION 52 AND INSERTION OF SUB - SECTION (2)) THAT: THIS CONDITION OF 15% OR MORE DIFFERENCE IS MERELY INTENDED TO BE A SAFEGUARD ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 10 AGAINST THE UNDUE HARDSHIP WHICH WOULD BE OCCASIONED TO THE ASSESSEE IF THE INFLEXIBLE RULE OF THUMB ENACTED IN SUB - SECTION (2) WERE APPLIED IN MARGINAL CASES AND IT HAS NOTHIN G TO DO WITH THE QUESTION OF BURDEN OF PROOF, FOR, THE BURDEN OF ESTABLISHING THAT THERE IS AN UNDERSTATEMENT OF THE CONSIDERATION IN RESPECT OF THE TRANSFER ALWAYS RESTS ON THE REVENUE. THE POSTULATE UNDERLYING SUB - SECTION (2) IS THAT THE DIFFERENCE BETWE EN ONE HONEST VALUATION AND ANOTHER MAY RANGE UP TO 15% AND THAT CONSTITUTES THE CLASS OF MARGINAL CASES WHICH ARE TAKEN OUT OF THE PURVIEW OF SUB - SECTION (2) IN ORDER TO AVOID HARDSHIP TO THE ASSESSEE. IT IS, THEREFORE, CLEAR THAT SUB - SECTION (2) CANNOT B E INVOKED BY THE REVENUE UNLESS THERE IS UNDERSTATEMENT OF THE CONSIDERATION IN RESPECT OF THE TRANSFER AND THE BURDEN OF SHOWING THAT THERE IS SUCH UNDERSTATEMENT IS ON THE REVENUE. ONCE IT IS ESTABLISHED BY THE REVENUE THAT THE CONSIDERATION FOR THE TRAN SFER HAS BEEN UNDERSTATED OR, TO PUT IT DIFFERENTLY, THE CONSIDERATION ACTUALLY RECEIVED BY THE ASSESSEE IS MORE THAN WHAT IS DECLARED OR DISCLOSED BY HIM, SUB - SECTION (2) IS IMMEDIATELY ATTRACTED, SUBJECT OF COURSE TO THE FULFILMENT OF THE CONDITION OF 15 % OR MORE DIFFERENCE, AND THE REVENUE IS THEN NOT REQUIRED TO SHOW WHAT IS THE PRECISE EXTENT OF THE UNDERSTATEMENT OR IN OTHER WORDS, WHAT IS THE CONSIDERATION ACTUALLY RECEIVED BY THE ASSESSEE. THAT WOULD IN MOST CASES BE DIFFICULT, IF NOT IMPOSSIBLE, TO SHOW AND HENCE SUB - SECTION (2) RELIEVES THE REVENUE OF ALL BURDEN OF ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 11 PROOF REGARDING THE EXTENT OF UNDERSTATEMENT OR CONCEALMENT AND PROVIDES A STATUTORY MEASURE OF THE CONSIDERATION RECEIVED IN RESPECT OF THE TRANSFER. IT DOES NOT CREATE ANY FICTIONAL RE CEIPT. IT DOES NOT DEEM AS RECEIPT SOMETHING WHICH IS NOT IN FACT RECEIVED. IT MERELY PROVIDES A STATUTORY BEST JUDGMENT ASSESSMENT OF THE CONSIDERATION ACTUALLY RECEIVED BY THE ASSESSEE AND BRINGS TO TAX CAPITAL GAINS ON THE FOOTING THAT THE FAIR MARKET V ALUE OF THE CAPITAL ASSET REPRESENTS THE ACTUAL CONSIDERATION RECEIVED BY THE ASSESSEE AS AGAINST THE CONSIDERATION UNTRULY DECLARED OR DISCLOSED BY HIM. THIS APPROACH IN THE CONSTRUCTION OF SUB - SECTION (2) FALLS IN LINE WITH THE SCHEME OF THE PROVISIONS RELATING TO TAX ON CAPITAL GAINS. IT MAY BE NOTED THAT SECTION 52 IS NOT A CHARGING SECTION BUT IS A COMPUTATION SECTION. IT HAS TO BE READ ALONG WITH SECTION 48 WHICH PROVIDES THE MODE OF COMPUTATION AND UNDER WHICH THE STARTING POINT OF COMPUTATION IS 'THE FULL VALU E OF THE CONSIDERATION RECEIVED OR ACCRUING'. WHAT IN FACT NEVER ACCRUED OR WAS NEVER RECEIVED CANNOT BE COMPUTED AS CAPITAL GAINS UNDER SECTION 48. THEREFORE, SUB - SECTION (2) CANNOT BE CONSTRUED AS BRINGING WITHIN THE COMPUTATION OF CAPITAL GAINS AN AMOU NT WHICH, BY NO STRETCH OF IMAGINATION, CAN BE SAID TO HAVE ACCRUED TO THE ASSESSEE OR BEEN RECEIVED BY HIM AND IT MUST BE CONFINED TO CASES WHERE THE ACTUAL CONSIDERATION RECEIVED FOR THE TRANSFER IS UNDERSTATED AND SINCE IN SUCH CASES IT IS VERY DIFFICUL T, IF NOT IMPOSSIBLE, TO DETERMINE AND PROVE ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 12 THE EXACT QUANTUM OF THE SUPPRESSED CONSIDERATION, SUB - SECTION (2) PROVIDES THE STATUTORY MEASURE FOR DETERMINING THE CONSIDERATION ACTUALLY RECEIVED BY THE ASSESSEE AND PERMITS THE REVENUE TO TAKE THE FAIR MARK ET VALUE OF THE CAPITAL ASSET AS THE FULL VALUE OF THE CONSIDERATION RECEIVED IN RESPECT OF THE TRANSFER. 15. THIS COURT IS OF THE OPINION THAT THE EXPRESS PROVISION OF SECTION 50 - C ENABLING THE REVENUE TO TREAT THE VALUE DECLARED BY AN ASSESSEE FOR PAY MENT OF STAMP DUTY, IPSO FACTO, CANNOT BE A LEGITIMATE GROUND FOR CONCLUDING THAT THERE WAS UNDERVALUATION, IN THE ACQUISITION OF IMMOVABLE PROPERTY. IF PARLIAMENTARY INTENTION WAS TO ENABLE SUCH A FINDING, A PROVISION AKIN TO SECTION 50 - C WOULD HAVE BEEN INCLUDED IN THE STATUTE BOOK, TO ASSESS INCOME ON THE BASIS OF A SIMILAR FICTION IN THE CASE OF THE ASSESSEE WHO ACQUIRES SUCH AN ASSET. NO DOUBT, THE DECLARATION OF A HIGHER COST FOR ACQUISITION FOR STAMP DUTY MIGHT BE THE STARTING POINT FOR AN INQUIRY IN THAT REGARD; THAT INQUIRY MIGHT EXTEND TO ANALYZING SALE OR TRANSFER DEEDS EXECUTED IN RESPECT OF SIMILAR OR NEIGHBOURING PROPERTIES, CONTEMPORANEOUSLY AT THE TIME OF THE TRANSACTION. YET, THE FINDING CANNOT START AND CONCLUDE WITH THE FACT THAT SUCH STAM P DUTY VALUE OR BASIS IS HIGHER THAN THE CONSIDERATION MENTIONED IN THE DEED. THE COMPULSION FOR SUCH HIGHER VALUE, IS THE MANDATE OF THE STAMP ACT, AND PROVISIONS WHICH LEVY STAMP DUTY AT PRE - DETERMINED OR NOTIFIED ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 13 DATES. IN THE PRESENT CASE, THE REVENUE DID NOT RELY ON ANY OBJECTIVE FACT OR CIRCUMSTANCES; CONSEQUENTLY, THE COURT HOLDS THAT THERE IS NO INFIRMITY IN THE APPROACH OF THE LOWER AUTHORITIES AND THE TRIBUNAL, GRANTING RELIEF TO THE ASSESSE. THIS QUESTION IS ACCORDINGLY ANSWERED IN FAVOUR OF THE ASSESSEE, AND AGAINST THE REVENUE. 12. WE ALSO FIND THAT FORCE IN THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT THE ISSUE IS ALSO COVERED IN FAVOR OF THE ASSESSEE, IN VIEW OF THE JUDGMENT OF THE ITAT, DELHI (TO WHICH, ONE OF US THE JUDICIAL MEMBER WAS THE PARTY) IN THE CASE OF ITO VS. SMT. HIMALI BANSAL IN ITA NO. 3235/DEL/2013 (AY 2008 - 09) VIDE ORDER DATED 13.8.2014 WHEREIN THE TRIBUNAL HAS CONCLUDED AS UNDER: - 5.2 WE FIND THAT LD. CIT(A) HAVE EXAMINED THE IMPUGNED ASSESSMENT ORDER AND THE AVERMENTS MADE BY THE AO THEREIN. HE CONSIDERED THE WRITTEN SUBMISSIONS, PRECISE SUMMARY OF FACTS, AND THE EVIDENCES PLACED BY THE ASSESSEE IN THE PAPER BOOK. AFTER CONSIDERING ALL THESE HE WAS ALSO OF THE CONSIDERED OPINION THAT PROVISIONS OF SECTION 69B CANNOT BE INVOKED IN THE CASE OF THE ASSESSEE, AS NO BOOKS ARE MAINTAINED BY THE ASSESSEE. WE FIND THAT MOREOVER, IT IS NOT THE CASE, WHERE THE AO HAS BROUGHT ON RECORD ANY CONTRARY MATERIAL TO SUBSTANTIATE THAT ASSESSEE OR HER MOTHER SMT. ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 14 SUDHA GARG H AS PAID ANY OTHER AMOUNT AS HAS BEEN MENTIONED IN THE SALE DEED EXECUTED BEFORE THE REGISTRAR OF PROPERTIES. IT IS ALSO NOT THE CASE OF THE AO THAT THERE IS ANY OTHER CONTRARY OR SUPPORTIVE EVIDENCE WHICH CORROBORATES THE STAND TAKEN BY THE AO EXCEPT THE V ALUE ADOPTED BY THE REGISTRAR OF PROPERTIES FOR PURPOSES OF STAMP VALUATION. WE FIND THAT LD. CIT(A) HAS STATED IN HIS ORDER THAT NO INQUIRY WAS CONDUCTED BY THE AO BEFORE INVOKING THE PROVISIONS OF SECTION 69B OF THE ACT AND NO EVIDENCE IS BROUGHT ON RECO RD BY THE AO THAT SOME EXTRA CONSIDERATION WAS PAID BY THE ASSESSEE FOR ACQUIRING THE PROPERTY OVER AND ABOVE THE AMOUNT OF SALES CONSIDERATION AS SHOWN IN THE SALE DEED. IT IS NOT UNDERSTOOD AS TO WHY THE VALUE TAKEN BY THE REGISTRAR OF PROPERTIES FOR PUR POSE OF STAMP DUTY PAYABLE CAN BE CONSIDERED AS THE SOLE CONSIDERATION, AND NOT ANY AMOUNT HIGHER OR LOWER THAN THAT. PAYMENT OF STAMP DUTY CANNOT BE SOLE CRITERIA TO PRESUME THAT ASSESSEE MUST HAVE PAID THAT MUCH AMOUNT FOR PURCHASE OF THE PROPERTY. WE FI ND THAT LD. CIT(A) HAS RIGHTLY OBSERVED THAT IN CASE, THERE WAS ANY DOUBT TO THE AO, HE SHOULD ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 15 HAVE REFERRED THE MATTER TO THE VALUATION OFFICER FOR VALUATION OF THE PROPERTY BEFORE INVOKING THE PROVISIONS OF SECTION 69B OF THE ACT. WE FIND THAT LD. CIT(A ) ALSO IN AGREEMENT WITH THE LD. AR THAT EVEN THE PROVISIONS OF SECTION 50C CANNOT BE INVOKED IN THE CASE OF THE ASSESSEE, AS ASSESSEE IS ONE OF THE PURCHASER OF THE PROPERTY, AND PROVISIONS OF SECTION 50C APPLIES TO THE SELLER OF PROPERTY. WE FIND THAT LD . CIT(A) HAS RIGHTLY OBSERVED THAT LD. AO HAS ALSO NOT BROUGHT ON RECORD TO SHOW THAT ANY CONTRARY VIEW WAS TAKEN BY THE ASSESSING OFFICER OF THE SELLER FOR THE SAID PROPERTY. WE FIND THAT LD. CIT(A) HAS ALSO CONSIDERED THE VARIOUS JUDGMENTS RELIED UPON BY THE ASSESSEE, AND AFTER CONSIDERING THOSE JUDGMENTS, LD. CIT(A) DID NOT FIND ANY REASON TO SUSTAIN THE ADDITION MADE BY THE AO IN THE HANDS OF THE ASSESSEE, IN THE ABSENCE OF ANY CONTRARY OR CORROBORATIVE EVIDENCES BROUGHT ON RECORD. WE FIND THAT LD. CIT( A) HAS RIGHTLY GET SUPPORT FROM THE JUDGMENT OF THE HON'BLE SC IN THE CASE OF KP VARGHESE VS ITO 131 ITR 597 (SC), AND THEREFORE, THE ADDITION MADE BY THE AO FOR AN AMOUNT OF RS. 13,58,550/ - WAS RIGHTLY DELETED BY THE LD. CIT(A). ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 16 IN THE BACKGROUND OF T HE AFORESAID DISCUSSIONS AND PRECEDENT RELIED UPON, WE UPHOLD THE ORDER THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DECIDE THE ISSUE AGAINST THE REVENUE. 13. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND PRECEDENTS, WE FIND THAT THE ISSUES ARE COVERED IN FAVOR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE AFORESAID DECISIONS OF THE HON BLE JURISDICTIONAL HIGH COURT AND COORDINATE BENCH OF THE ITAT, DELHI AS AFORESAID. ACCORDINGLY, RESPECTFULLY FOLLOWING THE PRECEDENTS AS CITED ABOVE, WE DECIDE THE ISSUES AGAINST THE REVENUE. ACCORDINGLY, ALL THE APPEALS OF THE REVENUE STAND DISMISSED. 14. IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE O PEN C OURT ON 31 / 10 /20 1 4 . SD/ - SD/ - [ T.S. KAPOOR ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 31 / 10 201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO S . 2057, 2058, 2055&2056/ DEL/ 2012 17