The ITO, Exemption Ward, Baroda V. Matrushi Gangaba Trust, Baroda

ITA 2756/AHD/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8186 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 30-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 143(3); 50C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 2756/AHD/2015 (ASSESSMENT YEAR: 2011-12) ITO, EXEMPTIONS WARD- BARODA V/S MATRUSHI GANGABA TRUST KAMDHENU ESTATE OPP CITY BANK RACE COURSE- GOTRI ROAD, BARODA-390007 (APPELLANT) (RESPONDENT) PAN: AAATM3712B APPELLANT BY : SHRI V. K. SINGH, SR. D.R . RESPONDENT BY : SHRI MUKUND BAKSHI, A.R. ( )/ ORDER DATE OF HEARING : 27 -03-201 8 DATE OF PRONOUNCEMENT : 08 -06-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-5, VADODARA DATED 11.06.2015 PERTAINING TO A.Y. 2010-1 1 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 2756 /AHD/2015 . A.Y. 2011-12 2 (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE THE LD.CIT(A) IS JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSE SSING OFFICER OF RS.1,83,76,000/- ON ACCOUNT OF CAPITAL GAINS. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME- TAX (APPEALS) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. (III) IT IS, THEREFORE, PRAYED THAT ORDER OF THE LD, COMMISSIONER OF INCOME-TAX (APPEALS) MAY BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PR IVATE TRUST AND DERIVES INCOME FROM INTEREST. AS PER THE AIR INFORMATION, IT HAS C OME TO THE KNOWLEDGE OF THE ASSESSING OFFICER THAT A SALE DEED HAS BEEN AFFECTE D IN RESPECT OF IMMOVABLE PROPERTY LOCATED AT REVENUE SURVEY NO. 974 AND 957. THE DECLARED CONSIDERATION WAS RS. 2.00 CRORES AS AGAINST THE VA LUE FOR STAMP DUTY PURPOSES (JANTRI VALUE) AT RS. 4,67,52,000/-. THE SALE IS EX ECUTED IN FAVOUR OF TANMAN FINVEST PVT. LTD. BY THE ASSESSEE ALONG WITH ANOTHE R CO-OWNER SMT. GANGABEN RAOJIBHAI PATEL WITH M/S. JOHNSON ELECTRIC CO. PVT. LTD. AS A CONFIRMING PARTY. THE SALE DEED IS REGISTERED BY DOCUMENT NO. BRA-4/G RV/7840 OF 2010. THE ASSESSEE DID NOT OFFER ANY INCOME FROM THE TRANSFER OF PROPERTY AND PROVISIONS OF SECTION 50C WERE ATTRACTED. THE ASSESSING OFFICE R COMPUTED THE INCOME FROM THE SALE OF LAND UNDER THE HEAD CAPITAL GAIN A ND DETERMINED THE INCOME AT RS. 2,23,76,000/- AND REDUCED AN AMOUNT OF RS. 40,0 0,000/- FROM SUCH AMOUNT CONSIDERING SUCH AMOUNT HAVING BEEN OFFERED AS VALU E OF CONSIDERATION IN THE A.Y.2007-08 AND, THUS, THE CAPITAL GAINS DETERMINED FOR TAXATION WAS RS.1,83,76,000/-. 3. AGAINST THE SAID ORDER, ASSESSEE PREFERRED FIRST ST ATUTORY APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE APPEAL OF THE ASSESSEE. ITA NO. 2756 /AHD/2015 . A.Y. 2011-12 3 4. WE HAVE GONE THROUGH THE RELEVANT RECORD IN THE IMP UGNED ORDER. THE APPELLANT IS A TRUST AND IS REGULARLY FILING ITS RE TURN OF INCOME. FOR THE YEAR UNDER CONSIDERATION THE RETURN OF INCOME, DECLARING AN INCOME OF RS. 7,75,056/-. THE INCOME WAS ASSESSED U/S. 143(3), AS SESSING THE INCOME AT RS. 191,26,056/-. ADDITION OF RS. 1,83,76,000/- WAS MAD E BY THE LD. A.O. UNDER THE HEAD CAPITAL GAIN. 5. IN THIS CASE, THE INCOME TAX RETURN FOR THE A.Y. 2007-08 FILED BY THE ASSESSEE SHOWING ABOVE TRANSACTION IS PLACED AS PAGES 19-22 OF THE PAPER BOOK. IT WAS ALSO POINTED OUT THAT ASSESSMENT OF ANOTHER CO-OWNE R SMT. GANGABEN PATEL WAS COMPLETED U/S. 143(3) FOR THE A.Y. 2007-08 WHER E THE CAPITAL GAIN SHOWN BY HER HAS BEEN ACCEPTED AND SAME COPY OF THE ORDER IS ALSO PLACED BEFORE THE LOWER AUTHORITIES. IT IS ALSO A MATTER OF FACT THAT A NOTICE U/S. 148 IS ISSUED ON 09.03.2014 FOR TAXING THE SAME TRANSACTION IN THE A .Y. 2007-08 AND THAT ALL THESE FACTORS LEAD TO THE CONCLUSION THAT THE TRANS ACTION OF TRANSFER OF IMMOVABLE PROPERTY IS ACCEPTED TO BE NOT EFFECTED D URING THE YEAR UNDER CONSIDERATION AND CONSEQUENTLY, THE TAXATION OF CAP ITAL GAINS CANNOT BE SAID TO BE ARISING IN THE YEAR UNDER CONSIDERATION. ONCE, I T IS HELD THAT THE TRANSFER OF LAND TOOK PLACE IN AY 2007-08 AND ASSESSEE OFFERED CAPITAL GAINS ON THAT AND PAID DUE TAX THEREON, THERE IS NO OCCASION TO TAX C APITAL GAIN IN A.Y. 2011-12 AS CONTEMPLATED. AND IN OUR CONSIDERED OPINION, THE ASSESSEE IS ALSO COVERED BY CLAUSE (VI) OF SECTION 2(47) WHICH INCLUDES ANY TRANSACTION WHICH HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYMENT O F, ANY IMMOVABLE PROPERTY. FROM THE RECORDS, IT IS SEEN THAT ON 15.07.2006 POS SESSION WAS GIVEN BY THE ASSESSEE TO M/S TANMAN FINVEST PVT. LTD. AND POSSES SION LETTER DULY NOTARIZED WAS PLACED BEFORE THE LOWER AUTHORITIES. THEREFORE, LOWER AUTHORITY HAD NO ITA NO. 2756 /AHD/2015 . A.Y. 2011-12 4 DOUBTS ABOUT THE VERACITY OF THIS DOCUMENT AND PREF ERRED NOT TO CONDUCT ANY ENQUIRY WHATSOEVER FROM ANY QUARTER. THIS CLEARLY D EMONSTRATE THAT THE EFFECTIVE POSSESSION OF LAND AS ON 31.03.2007 WAS W ITH M/S TANMAN FINVEST PVT. LTD. AND NOT WITH APPELLANT AND THEREFORE, APP ELLANT HAD RIGHTLY SHOWN CAPITAL GAIN FROM TRANSFER OF THE IMPUGNED LAND FO R ASSESSMENT.YEAR. 2007- 08. THEREFORE, IN OUR CONSIDERED OPINION, THE LD. C IT(A) HAS PASSED DETAILED AND REASONED ORDER. THUS WE ARE NOT INCLINED TO INT ERFERE IN THE ORDER PASSED BY THE LD. CIT(A). HENCE, APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 08 - 06- 2018 SD/- SD/- (PRAMOD KUMAR) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY J UDICIAL MEMBER AHMEDABAD: DATED 08/06/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD