Vinod Kumar Chugh, Noida V. ITO, New Delhi

ITA 2595/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1200 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 01-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C; 133(6)

Judgement Text

ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 2595/DEL/2015 ASSESSMENT YEAR: 2010-11 SHRI VINOD KUMAR CHUGH, R/O K-24, SECTOR-25, NOIDA-201301 (PAN: ADCC9024H) VS ITO, WARD 33(4). NEW DELHI-110008 APPELLANT RESPONDENT ASSESSEE BY : SHRI VED JAIN, ADV. DEPARTMENT BY: SHRI RAGHUNATH, SR. DR DATE OF HEARING : 15.01.2019 DATE OF PRONOUNCEMENT : 18.03.2019 O R D E R PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST OR DER DATED 20 TH JANUARY, 2015 PASSED BY THE LD. CIT (APPEALS) 17 , NEW DELHI {CIT (A)} FOR ASSESSMENT YEAR (AY) 2010-11. T HE ONLY GRIEVANCE IN THIS APPEAL IS THE ADDITION OF RS. 78, 40,062/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. C IT(A) ON ACCOUNT OF THE CAPITAL GAIN. 2.0 THE BRIEF FACTS LEADING TO THE PRESENT APPEAL A RE THAT THE ASSESSEE, DURING THE YEAR UNDER CONSIDERATION, WAS ENGAGED IN ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 2 CONSIGNMENT SALES OF PRODUCTS OF M/S HALDIA PETRO C HEMICALS LTD. ON COMMISSION BASIS. THE ASSESSEE FILED HIS RE TURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARI NG AN INCOME OF RS.18,94,797/-. AS PER THE AIR INFORMATION, THE ASSESSEE HAD EXECUTED ONE TRANSACTION OF SALE OF ONE IMMOVABLE P ROPERTY AT A- 34, SECTOR 30, NOIDA FOR RS.83,70,000/- ON 23 RD JUNE, 2009 AND THE ASSESSING OFFICER (AO) NOTED THAT THIS TRANSACT ION HAD NOT BEEN REFLECTED IN THE RETURN OF INCOME. THE ASSESSE E WAS ASKED TO EXPLAIN THE SAME. IT WAS SUBMITTED BY THE ASSESS EE BEFORE THE AO THAT HE HAD PURCHASED THE A VACANT PLOT IN THE Y EAR 1987 THROUGH A GENERAL POWER OF ATTORNEY (GPA) FROM THE ORIGINAL ALLOTTEE SMT. LILAVATI KAPUR FOR RS. 1,35,000/- ON WHICH THE ASSESSEE HAD CONSTRUCTED THE GROUND FLOOR AND SOLD THE HOUSE ON 03.08.1991 TO SMT. SANTOSH SAREEN FOR A CONSIDERATI ON OF RS. 4,55,000/- UNDER A REGISTERED AGREEMENT TO SELL A LONG WITH THE POSSESSION OF PROPERTY. HOWEVER, AS PER THE AO, THE RE WAS NO PROOF OF VALID SALE ON 03.08.1991. THEREFORE, THE A O PROCEEDED TO HOLD THAT THE TRANSACTION IN THE ASSESSMENT YEAR UN DER CONSIDERATION ATTRACTED LONG TERM CAPITAL GAINS (LT CG) ON THE SALE OF PROPERTY AND WAS TAXABLE U/S 50C OF THE INC OME TAX ACT, 1961 (HEREINAFTER CALLED THE ACT). THE LTCG WAS C OMPUTED AT RS. ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 3 78,40,062/- AFTER ALLOWING THE BENEFIT OF INDEXATIO N TO THE ASSESSEE. 2.1 THE LD. CIT (A) CONFIRMED THE ACTION OF THE ASS ESSING OFFICER. 2.2 NOW, THE ASSESSEE HAS APPROACHED THE ITAT AND H AS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDI TION OF RS. 78,40,062 MADE BY THE A.O. UNDER THE HEAD LONG TERM CAPITAL GAIN ON SALE OF PROPERTY NO. A/34, SECTOR-3 0, NOIDA. (B) THAT THE LD. CIT(A) AND A.O. HAS FAILED TO APPR ECIATE THE FACTUAL POSITION, OF HAVING SOLD THE PROPERTY A-34, SECTOR-30, NOIDA ON 03.08.1991 HAVING RECEIVED THE CONSIDERATI ON, HAVING HANDED OVER THE PHYSICAL POSSESSION AND CONFIRMATION BY THE PURCHASER OF THE SAID PROPERTY AT VARIOUS OCCASIONS FOR HAVING PURCHASED , TAKEN OVER POSSESSION RESIDING IN THE SAID PROPERTY, HAVING OB TAINED PERMISSION FROM NOIDA AUTHORITY AND ALSO HAVING SOL D THE PROPERTY IN A.Y. 2011-12. (C) IT IS HIGHLY UNJUSTIFIED AND AGAINST EQUITY TO HOLD THAT THE DATE OF TRANSFER U/S 2(47) FOR WORKING OUT THE CAPITAL GAIN IS 23.06.2009 AND NOT 03.08.1991. (D) IT IS DENIED THAT THE AGREEMENT TO SELL DATED 0 3.08.1991 WAS NOT A PROPERTY REGISTERED DOCUMENT. THE DOCUMEN T WAS REGISTERED VIDE DOCUMENT NO-87 VOLUME NO-679 BOOK N O- 740 PAGES 41 TO 50. 2. TO THE ABOVE EXTEND OF ABOVE OBJECTION THE ORDE R PASSED U/S 143(3) BY THE A.O. & FURTHER CONFIRMATION BY TH E ID. CIT(A) IS BAD IN LAW. 3. THAT A PRAYS THAT THE ADDITION BE DELETED IN FULL TO MEET BOTH ENDS OF JUSTICE. ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 4 4. THAT APPELLANT PRAYS THAT HE BE ALLOWED TO ADDUC E, DEDUCE, ALTER, AMEND, WITHDRAW OR RECTIFY ANY GROUN DS OF APPEAL DURING OR BEFORE THE FINAL HEARING. 3.0 IT WAS CONTENDED BY THE LD. AUTHORISED REPRESEN TATIVE (AR) THAT THE ADDITION MADE BY THE AO WAS UNSUSTAINABLE IN LAW AND ALSO ON FACTS. THE LD. AR SUBMITTED THAT THE ASSES SEE HAD PURCHASED A PLOT BEARING NO. A-34, SECTOR-30, NOIDA IN 1987 FROM SMT. LILAWATI KAPUR AS PER THE AGREEMENT TO SELL DA TED 22 ND JUNE, 1987 (PLACED AT PAPER BOOK PAGES 56-58). IT WAS FUR THER SUBMITTED THAT THE ASSESSEE HAD ALSO OBTAINED GPA ( PLACED AT PAPER BOOK PAGES 47-55) FROM SMT. LILAWATI KAPUR, W HO WAS THE ORIGINAL ALLOTTEE IN THE RECORDS OF NOIDA AUTHORITY . THE LD. AR SUBMITTED THAT THE ASSESSEE CONSTRUCTED THE GROUND FLOOR ON THE SAID PLOT AND, THEREAFTER, SOLD THE PROPERTY TO SMT . SANTOSH SAREEN ON 03.08.1991 FOR RS.4,55,000/-, VIDE AGREEM ENT TO SELL DATED 3 RD AUGUST, 1991 (PLACED AT PAPER BOOK PAGES 6-12). IT WAS SUBMITTED THAT THE SALE DEED COULD NOT BE EXECUTED AT THE TIME WHEN THE ASSESSEE HAD PURCHASED THE PLOT FROM SMT. LILAWATI KAPUR IN 1987AND ALSO WHEN THE ASSESSEE HAD SOLD TH E PROPERTY TO SMT. SANTOSH SAREEN IN 1991, AS THE PLOT WAS ON LEASEHOLD. THE LD. AR FURTHER SUBMITTED THAT SUBSEQUENTLY IN 2 009, THE NOIDA AUTHORITY ACCORDER THE APPROVAL FOR TRANSFER AND ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 5 CONSEQUENT TO SUCH APPROVAL FOR TRANSFER, SMT. SANT OSH SAREEN, THE BUYER, APPROACHED THE ASSESSEE TO GET THE SALE DEED EXECUTED IN HER FAVOUR ON THE BASIS OF THE GENERAL POWER OF ATTORNEY HELD BY THE ASSESSEE FROM THE ORIGINAL ALLOTTEE SMT. LIL AWATI KAPUR. THUS, THE SALE DEED EXECUTED ON 23.06.2009 IN FAVOU R OF SMT. SANTOSH SAREEN WAS IN THE CAPACITY OF THE GPA HOLDE R AND, THUS, IT WAS NOT APPROPRIATE FOR THE AO TO CONSIDER THE S ALE OF THIS PROPERTY IN THE HANDS OF THE ASSESSEE IN 2009. 3.1 THE LD. AR FURTHER SUBMITTED THAT DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE REQUESTED THE AO TO ISSUE NOTICE U/S 133(6) OF THE ACT TO SMT. SANTOSH SAREEN , AND THE ADDRESS OF THE PARTY WAS ALSO PROVIDED BY THE ASSES SEE TO THE AO. IT WAS SUBMITTED THAT IN RESPONSE TO THE NOTICE ISS UED BY THE AO U/S 133 (6) OF THE ACT, SMT. SANTOSH SAREEN HAD FIL ED A REPLY DATED 12.03.2013 (PLACED AT PAPER BOOK PAGE 66), WH EREBY SHE CONFIRMED THAT SHE HAD PURCHASED THE PROPERTY AND H AD TAKEN THE POSSESSION OF THE PROPERTY ON 03.08.1991. IT WA S FURTHER SUBMITTED THAT ALONG WITH THE SAID REPLY, SMT. SANT OSH SAREEN HAD ALSO FILED THE ACKNOWLEDGMENT OF ITR ALONG WITH THE COMPUTATION OF INCOME IN RESPECT OF A.Y. 2010-11 (P APER BOOK PAGES 110 111) AND HAD ALSO FURNISHED COPY OF HER BANK ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 6 STATEMENT, HER POST OFFICE SAVING ACCOUNT, HER DEMA T ACCOUNT, HER PAN ALLOTMENT LETTER, WHEREIN ALSO THE ADDRESS OF S MT. SANTOSH SAREEN HAS BEEN MENTIONED AS A-34, SECTOR-30, NOIDA (PAPER BOOK PAGES 113 123). IT WAS SUBMITTED BY THE LD. AR THAT A PERUSAL OF THE COMPUTATION OF INCOME OF SMT. SANTOS H SAREEN FOR A.Y. 2010-11 WOULD SHOW THAT DURING THE YEAR UNDER CONSIDERATION, SMT. SANTOSH SAREEN HAS FURTHER SOLD THE PROPERTY, AND IN THE COMPUTATION OF INCOME UNDER TH E HEAD CAPITAL GAINS, SHE HAS ALSO SHOWN THE ACQUISITION OF THE PROPERTY TO HAVE TAKEN PLACE IN 1991 ONLY, AND HAS FURTHER S HOWN THE PAYMENT OF FREEHOLD DUTY DURING THE YEAR UNDER CONS IDERATION. IT WAS FURTHER SUBMITTED THAT SMT. SANTOSH SAREEN HAS, THEREAFTER, AGAIN FILED A REPLY ON 18.03.2013 BEFORE THE ASSESS ING OFFICER WHEREBY SHE HAS ALSO SUBMITTED THE BANK STATEMENTS AVAILABLE WITH HER ALONG WITH HER PAN DETAILS. 3.2 IT WAS FURTHER SUBMITTED BY THE LD. AR THAT THE FACT THAT THE POSSESSION OF THE PROPERTY WAS ALREADY HANDED OVER TO SMT. SANTOSH SAREEN IN 1991 ALSO CORROBORATES THE FACT T HAT THE TRANSFER OF THE PROPERTY HAD ALREADY TAKEN PLACE IN THE YEAR 1991, AND NOT IN THE YEAR IN WHICH THE SALE DEED HAS BEEN EXECUTED BY THE ASSESSEE AS THE GPA-HOLDER. THE LD. AR INVITED OUR ATTENTION ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 7 TO THE SALE DEED EXECUTED ON 23.06.2009 (PLACED AT PAPER BOOK PAGE 15) WHEREBY THE SELLER IS SMT. LILAWATI KAPUR, THE ORIGINAL OWNER, AND THE ASSESSEE HAS EXECUTED THE SALE DEED AS HER GENERAL POWER OF ATTORNEY HOLDER. ON THE BASIS OF THIS IT WAS CONTENDED THAT EVEN IF IT IS ASSUMED THAT SALE HAS TAKEN PLACE ON 23.06.2009, STILL THE ASSESSEE CANNOT BE CONSIDERED AS A SELLER SO AS TO CHARGE CAPITAL GAIN IN HIS HAND ON THE BASIS OF THIS SALE DEED. IT WAS SUBMITTED THAT THE FACT THAT THE ASSE SSEE OR SMT. SANTOSH SAREEN COULD NOT PRODUCE THEIR BANK STATEME NTS OR ITRS FOR THE YEAR 1991 CANNOT BE THE BASIS FOR AN DRAWIN G ADVERSE INFERENCE ESPECIALLY CONSIDERING THE FACT THAT THE SAID RECORDS BEING ALMOST 20 YEARS OLD WERE DIFFICULT TO BE TRAC ED. 3.3 IT WAS FURTHER SUBMITTED THAT THE AGREEMENT TO SELL WAS EXECUTED BY THE ASSESSEE IN THE YEAR 1991 ITSELF AN D THE SALE DEED WAS EXECUTED IN THE YEAR 2009 ONLY FOR THE REASON T HAT THE SMT. SANTOSH SAREEN HAD TO FURTHER SELL THE PROPERTY AND FOR THAT PURPOSE SHE WANTED TO CONVERT THE LEASEHOLD PROPERT Y INTO FREEHOLD PROPERTY. 3.4 AS REGARDS THE APPLICATION OF SECTION 50C OF TH E ACT BY THE AO, WHICH HAS BEEN UPHELD BY THE LD. CIT (A), IT WA S SUBMITTED BY THE LD. AR THAT THE PROVISIONS OF THE SAID SECTI ON WERE ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 8 INTRODUCED IN THE ACT BY FINANCE ACT, 2002 WITH EFF ECT FROM 01.04.2003. SINCE, IN THE CASE OF ASSESSEE, THE PRO PERTY WAS TRANSFERRED IN THE YEAR 1991, THE PROVISIONS OF THE SAID SECTION WILL ALSO NOT BE APPLICABLE. AS REGARDS THE ADVERSE OBSERVATIONS MADE BY THE AO IN THE ASSESSMENT ORDER AS WELL AS T HE IN THE REMAND REPORT AND THE BY THE LD. CIT (A), IT WAS SU BMITTED BY THE LD. AR THAT THE SAID OBSERVATIONS ARE CONTRARY TO T HE FACTS PREVAILING IN ASSESSEES CASE. THE LD. AR CONTENDE D THAT THE FINDINGS OF THE AO AS WELL AS THE LD. CIT (A) WERE BASED ON INCORRECT FACTS AND FINDINGS AND, THUS, WERE LIABLE TO BE REVERSED. 4.0 IN REPLY, THE LD. SENIOR DEPARTMENTAL REPRESENT ATIVE (SR. DR) SUPPORTED THE ORDERS PASSED BY THE AUTHORITIES BELOW. IT WAS CONTENDED THAT THE SALE DEED HAVING BEEN EXECUTED B Y THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION, THE A O WAS JUSTIFIED IN CONSIDERING THE TRANSFER IN THIS YEAR AND COMPUTING CAPITAL GAIN TAX ACCORDINGLY. THE LD. SR. DR PLAC ED RELIANCE ON THE ORDER PASSED BY THE AUTHORITIES BELOW. IT WAS CONTENDED THAT BOTH THE AO AND THE LD. CIT (A) HAS EXAMINED THE I SSUE AND THE FACTS IN DETAIL AND, THEREFORE, NO INTERFERENCE WAS CALLED FOR ON THE ISSUE. ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 9 5.0 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE ALSO PERUSED THE MATERIAL ON RECORD. ON GOING THROUGH TH E RECORDS, WE NOTE THAT THE ASSESSEE HAS PURCHASED A PLOT BEARING NO. A-34, SECTOR-30, NOIDA FROM SMT. LILAWATI KAPUR IN TERMS OF THE AGREEMENT TO SELL DATED 22.06.1987. THE ASSESSEE A LSO OBTAINED A GENERAL POWER OF ATTORNEY IN HIS FAVOUR FROM SMT. LILAWATI KAPUR. THE ASSESSEE, THEREAFTER, CONSTRUCTED A HOU SE HAVING ONLY THE GROUND FLOOR THEREON. THEREAFTER, THE ASS ESSEE SOLD THE PROPERTY TO SMT. SANTOSH SAREEN THROUGH AN AGREEMEN T TO SELL DATED 03.08.1991 FOR A SUM OF RS.4,55,000/- WHICH W AS RECEIVED BY CHEQUE. IN THE YEAR UNDER CONSIDERATION, SMT. SA NTOSH SAREEN OBTAINED APPROVAL FOR THE TRANSFER OF THE ABOVE PLO T FROM THE NOIDA AUTHORITY IN HER FAVOUR AND ASKED THE ASSESSE E TO EXECUTE A PROPER SALE DEED IN HER FAVOUR, BEING THE GENERAL POWER OF ATTORNEY HOLDER OF SMT. LILAWATI KAPUR, THE ORIGINA L OWNER. THE ASSESSEE, ACCORDINGLY, EXECUTED THE SALE DEED IN HI S CAPACITY AS THE GENERAL POWER OF ATTORNEY HOLDER AS IS EVIDENT FROM THE SALE DEED (PLACED AT PAPER BOOK PAGES 13-45) EXECUTED ON 23.06.2009. THE ASSESSING OFFICER HAS ASSUMED THIS AS SALE BY THE ASSESSEE DURING THE YEAR AND HAS TAXED THE CAPI TAL GAIN IN THE ASSESSEES HAND. FROM THE FACTS, IT IS CLEAR THAT THE ASSESSEE HAD ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 10 PURCHASED THE PROPERTY THROUGH AN AGREEMENT TO SELL IN 1987 AND HAD SOLD THE SAME AGAIN THROUGH AN AGREEMENT TO SEL L IN 1991. THE ASSESSEE HAD GIVEN POSSESSION TO THE BUYER IN T HE YEAR 1987. THE BUYER HAD ALSO CONFIRMED THE SAME IN RESPONSE T O THE ENQUIRY CONDUCTED BY THE AO. THE BUYER HAS ALSO FI LED EVIDENCES TO SUPPORT THAT SHE WAS IN POSSESSION ALL ALONG FRO M THE YEAR 1991. THE AO HAS NOT BROUGHT ANY MATERIAL TO THE C ONTRARY TO REBUT THE EVIDENCES SUBMITTED BY THE ASSESSEE AND B Y THE BUYER SMT. SANTOSH SAREEN. THE CONTENTION OF THE ASSESSE E IS SUPPORTED BY THE DEFINITION OF TRANSFER IN SECTION 2(47) CLAUSE (V) OF THE ACT WHEREBY TRANSFER IN RELATION TO CAPITA L ASSETS INCLUDES ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSSE SSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT. AS PER SECTION 53A OF TH E TRANSFER OF PROPERTY ACT, AS APPLICABLE IN THE YEAR 1991, AN AG REEMENT TO SELL NEED NOT BE REGISTERED IF THE TRANSFEREE HAS, IN PA RT PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF THE PROPERTY A ND CONTINUES IN POSSESSION OF THE SAME. IN THE PRESENT CASE, TH E TRANSFEREE HAS TAKEN POSSESSION IN THE YEAR 1991 AND HAS CONTI NUED TO BE IN POSSESSION OF THE PROPERTY AND HENCE, TRANSFER W AS COMPLETE IN ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 11 THE YEAR 1991 IN VIEW OF CLAUSE (V) OF SECTION 2(47 ) OF THE INCOME TAX ACT. 5.1 WE ALSO NOTE THAT IN THE SALE DEED THE TOTAL CO NSIDERATION HAS BEEN STATED AT RS. 4,50,000/- AND THE DETAILS O F THE CHEQUE AND MODE OF PAYMENT IS STATED IN THIS SALE DEED AT INTERNAL PAGE 8 PAPER BOOK PAGE 24. THIS FACT SUPPORTS THE CASE OF THE ASSESSEE THAT THE ASSESSEE HAD SOLD THIS PROPERTY W AY BACK IN THE YEAR 1991. IN VIEW OF THESE FACTS, THE AO AND THE LD. CIT (A), BOTH, WERE NOT JUSTIFIED IN DRAWING AN ADVERSE INFE RENCE MERELY ON THE GROUND THAT THE ASSESSEE HAD FAILED TO PRODU CE THE BANK STATEMENT FOR THE YEAR 1991. FROM THE ASSESSMENT O RDER, IT IS ALSO EVIDENT THAT THE ASSESSING OFFICER HAS MADE A DIRECT INQUIRY FROM THE BUYER SMT. SANTOSH SAREEN AND SHE ALSO HAS CONFIRMED HAVING BOUGHT THIS PROPERTY FROM THE ASSESSEE IN TH E YEAR 1991. 5.2 THE ALLEGATION OF THE ASSESSING OFFICER THAT TH E PROPERTY HAS BEEN SOLD IN THE YEAR 2009, WHEN THE ASSESSEE HAS E XECUTED THE SALE DEED ALSO IGNORES THE FACT THAT THE SALE DEED HAS BEEN EXECUTED BY THE ASSESSEE IN THE CAPACITY OF GENERAL POWER OF ATTORNEY HOLDER AND NOT AS AN OWNER. THIS FACT IS EVIDENT FROM THE SALE DEED ITSELF WHICH IS BETWEEN SMT. LILAWATI KAPUR, THE ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 12 ORIGINAL OWNER AS THE SELLER AND SMT. SANTOSH SAREE N AS THE BUYER. 5.3 IN VIEW OF THE ABOVE FACTS, WE HOLD THAT THE SA LE OF THIS PROPERTY BY THE ASSESSEE HAS TAKEN PLACE IN THE YEA R 1991 AND THE AO WAS NOT JUSTIFIED IN TAXING THE CAPITAL GAIN ARISING ON THE SALE OF THIS PROPERTY IN THE YEAR UNDER CONSIDERATI ON. AS REGARDS INVOKING THE PROVISION OF SECTION 50COF THE ACT, TH E SAME WILL COME TO BE ATTRACTED ONLY WHEN SALE HAS TAKEN PLACE DURING THE YEAR. AS WE HAVE HELD THAT THE SALE BY THE ASSESSE E STOOD COMPLETED IN THE YEAR 1991, THERE IS NO QUESTION OF INVOKING THE PROVISION OF SECTION 50C. ACCORDINGLY, THE ADDITIO N MADE BY THE ASSESSING OFFICER OF RS. 78,40,062/- AS LONG TERM C APITAL GAINS IS DIRECTED TO BE DELETED. 6.0 IN THE FINAL RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MARCH, 2019. SD/- SD/- (R.K. PANDA) (SUDHANSHU SRIVAS TAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH MARCH,2019 ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 13 COPY FORWARDED TO: - 1) APPELLANT 2) RESPONDENT 3) CIT(A) 4) CIT 5) DR TRUE COPY BY ORDER ASSTT. REGISTRAR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER ITA NO. 2595/D/2015 ASSESSMENT YEAR 2010-11 14