SHRI KUMAR DATA, ALWAR V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, ALWAR

ITA 238/JPR/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7081 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 25-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 56(2)(vii)(b); 143(3); 2(14); 153A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA -@ ITA NO. 238/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2015-16 AJAY KUMAR DATA, 20, 21 AND 22, OLD INDUSTRIAL AREA, ALWAR, RAJASTHAN- 301001. CUKE VS. D.C.I.T., CENTRAL CIRCLE- ALWAR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: ABKPD 6905 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI B.K. GUPTA (CIT-DR) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/04/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/04/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A)-IV, JAIPUR DATED 29/01/2019 FOR THE A.Y. 2015-16 IN THE MATTER OF ORDER PASSED U/S 143(3) READ WITH SECTION 153A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR ADDITION OF RS.34,271/- U/S 56(2)(VII)(B)(II) OF THE ACT. IT WAS ARGUED BY THE LD AR ITA 238/JP/2019_ AJAY KR. DATA VS DCIT 2 THAT IN THE PRESENT CASE, AGRICULTURAL LAND PURCHASED BY THE ASSESSEE IS NOT A CAPITAL ASSET AS DEFINED IN SECTION 2(14) OF THE ACT. AS PER THIS SECTION, CAPITAL ASSET DOES NOT INCLUDE AGRICULTURAL LAND IN INDIA EXCEPT THAT AGRICULTURAL LAND WHICH FALLS WITHIN A PARTICULAR DISTANCE FROM THE LOCAL LIMITS OF THE MUNICIPALITY. AS PER SUB-CLAUSE (B)(III) OF CLAUSE (III) TO SECTION 2(14), AGRICULTURAL LAND SITUATED WITHIN 8 KMS OF THE LOCAL LIMITS OF MUNICIPALITY AND HAVING A POPULATION OF MORE THAN 10 LACS ARE CONSIDERED AS CAPITAL ASSET. IN THE PRESENT CASE, THE LAND PURCHASED BY THE ASSESSEE IN VILLAGE BHANDOLI IS SITUATED MORE THAN 32 KMS OF THE MUNICIPAL LIMIT OF ALWAR AND HAS A POPULATION OF 1357. THEREFORE, THE LAND PURCHASED BY THE ASSESSEE IS NOT A CAPITAL ASSET AND THUS, NOT AN IMMOVABLE PROPERTY AS ENVISAGED U/S 56(2)(VII)(B) OF THE ACT. HENCE, THE DIFFERENCE BETWEEN ACTUAL CONSIDERATION AND THE VALUE ADOPTED FOR STAMP DUTY PURPOSES CANNOT BE BROUGHT TO TAX IN THE HANDS OF THE PURCHASER UNDER THIS SECTION. IT WAS FURTHER CONTENDED THAT THE DIFFERENCE IN ACTUAL CONSIDERATION PAID AND DLC VALUE WAS LESS THAN RS. 50,000/- THEREFORE, PROVISIONS OF SECTION 56(2)(VII)(B)(II) WILL NOT BE APPLICABLE. 3. ON THE OTHER HAND, THE LD DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. ITA 238/JP/2019_ AJAY KR. DATA VS DCIT 3 4. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT THE ASSESSEE PURCHASED AN AGRICULTURAL LAND IN VILLAGE BANDHOLI, TEHSIL RANIGARH, DISTRICT ALWAR FOR RS.94,000/-. THE STAMP AUTHORITIES FOR STAMP DUTY PURPOSE TOOK ITS VALUE AT RS.1,28,271/-. ACCORDINGLY, AO MADE ADDITION OF RS.34,271/- U/S 56(2)(VII)(B)(II) OF THE ACT. BY THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE ACTION OF THE A.O. AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE ITAT. 5. AS PER SECTION 56(2)(VII)(B)(II), WHERE AN INDIVIDUAL RECEIVES ANY IMMOVABLE PROPERTY FOR A CONSIDERATION WHICH IS LESS THAN THE STAMP DUTY VALUE OF THE PROPERTY BY AN AMOUNT EXCEEDING RS.50,000/-, THE STAMP DUTY VALUE OF SUCH PROPERTY AS EXCEEDS SUCH CONSIDERATION IS ASSESSABLE AS INCOME FROM OTHER SOURCES. THUS, WHERE THE DIFFERENCE BETWEEN ACTUAL CONSIDERATION AND THE STAMP DUTY VALUE IS LESS THAN RS.50,000/-, THE DIFFERENCE CANNOT BE ASSESSED UNDER THIS SECTION. IN THE PRESENT CASE, THE DIFFERENCE BETWEEN ACTUAL CONSIDERATION AND THE STAMP DUTY VALUE IS ONLY RS.34,271/- AND THEREFORE, THIS DIFFERENCE CANNOT BE ASSESSED U/S 56(2)(VII)(B)(II). 6. IN VIEW OF THE ABOVE LEGAL POSITION, WE DO NOT FIND ANY MERIT IN UPHOLDING THE ADDITION OF RS. 34,271/- MADE U/S 56(2)(VII)(B)(II) OF THE ACT . HENCE, WE DIRECT THE A.O. TO THE DELETE THE SAME. ITA 238/JP/2019_ AJAY KR. DATA VS DCIT 4 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH APRIL, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI AJAY KUMAR DATA, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE DCIT, CENTRAL CIRCLE, ALWAR 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 238/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR