Church of North India Trust Association, New Delhi V. ITO, New Delhi

ITA 2932/DEL/2013

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0756 (ITAT-DELHI)
• Duration Of Justice: 8 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 13-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Additional evidence; Reassessment proceedings; Set aside
• Section: 50C; 12A; 13; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI B BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SHRI O.P.KANT, ACCOUNTANT MEMBER ITA NO.2932/DEL/2013 ASSESSMENT YEAR : 2006-07 CHURCH OF NORTH INDIA TRUST ASSOCIATION, CNI BHAWAN, 16, PANDIT PANT MARG, NEW DELHI-110001. PAN-AAATC6541K VS ITO, WARD-III, NEW DELHI. APPELLANT RESPONDENT APPELLANT BY SH.SUBHASH SINGHAL, CA RESPONDENT BY SH. MAHESH THAKUR, SR. DR DATE OF HEARING 12.07.2021 DATE OF PRONOUNCEMENT 15 .07.2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2006-07 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-XII, NEW D ELHI DATED 11.03.2013. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. 'THE FIRST 148 NOTICE WAS ISSUED ON 24/09/2008 A ND THE ASSESSMENT HAS BEEN MADE ON 31/12/2010 I.E. MORE TH EN ONE YEAR FROM INITIATION OF REASSESSMENT PROCEEDINGS ON THE INFORMATION RECEIVED. HENCE THE ORDER UNDER APPEAL IS TIME - BA RRED. 2. THE NOTICE DATED 24/09/2008 U/S148 FOR SAME REA SONS WAS ISSUED BY ITO, WARD 2(1), AJMER AND NO ORDER WAS P ASSED BY HIM BY THE TIME THE ITO. TRUST WARD III. DELHI ISSUED NOTI CE U/S 148 ON 09/12/2009 FOR THE SAME FACTS/REASONS. THERE CAN NO T EXIST TWO 148 NOTICES SIMULTANEOUSLY ON TWO DIFFERENT TAX PAYERS FOR A SINGLE ITA NO. 2932/DEL/2013 2 | P A GE TRANSACTION. THE SATISFACTION OF DELHI ITO IS A BOR ROWED ONE & NOT HIS OWN SATISFACTION. 3. THE NOTICE U/S 148 DATED 09/12/2009 FOR ASST. YE AR 2006-07 IS INVALID AS IT HAS TRIED TO BRING IN THE PROPERTY SO LD IN 1995 AND POSSESSION WAS GIVEN/ PAYMENT WAS RECEIVED UNDER A WRITTEN AGREEMENT. REGISTRATION OF SALE DEED IS NOT PRE- CO NDITION IN INCOME TAX FOR A TRANSACTION TO BE TREATED AS SALE. PAYMEN T & POSSESSION IS SUFFICIENT UNDER AN AGREEMENT. 4. SEC 50C WAS INSERTED W.E.F. 01/04/2003 INTO LAW AND FOR TRANSACTION OF 1995, IT HAS NOT APPLICATION. IT IS NOT RETROSPECTIVE. 5. SEC 50C IS NOT APPLICABLE ON EXEMPTION PROVISION S U/S 11 AND 12 OF I.T. ACT. 1961 BECAUSE THE DEEMING PROVISION ARE NOT APPLICABLE AS PRESCRIBED IN SEC 50C. NET CONSIDERATION MEANS A CTUAL AMOUNT RECEIVED AS PER SALE DEED AND NOT THE DEEMED AMOUNT . 6. ADDITIONAL EVIDENCES FILED BEFORE CIT (A) WERE N OT OBJECTED TO BY THE ITO IN HIS REMAND REPORT DATED 20/07/2012 AND W ERE ALSO ACCEPTED BY CIT (A) ON PAGE 11 OF HIS ORDER BUT THE CIT (A) FAILED TO CONSIDER PROPERLY THE FACTS AND EVIDENCES FILED BEF ORE HIM TO SUPPORT THE CASE. 7. THE APPLICATION OF SEC 50C AND REASSESSMENT MADE IN THIS CASE BE KINDLY DELETED/ CANCELLED. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSMENT U/S 143 R.W.S. 148 OF THE INCOME TAX ACT, 1961 (TH E ACT) WAS FRAMED VIDE ORDER DATED 31.12.2010. WHILE FRAMING THE ASSESSME NT, THE ASSESSING OFFICER OBSERVED THAT THE PROPERTY KNOWN AS HUSBA ND MEMORIAL SCHOOL, AJMER WAS DISPOSED OFF ON 29.11.2005 BY THE ASSESSE E CHURCH OF NORTH INDIA TRUST ASSOCIATION FOR CONSIDERATION OF RS.7 ,06,980/-. HOWEVER, THE VALUE WAS ADOPTED AS ASSESSED BY THE SUB-REGISTRAR, AJMER AT ITA NO. 2932/DEL/2013 3 | P A GE RS.77,80,888/-. THEREFORE, THE ASSESSING OFFICER T REATED THE FULL VALUE OF CONSIDERATION OF RS.77,80,888/- AS CAPITAL GAIN IN THE HANDS OF THE ASSESSEE WITH REFERENCE TO PROVISIONS CONTAINED U/ S 50C(1) OF THE ACT. 3. AGGRIEVED AGAINST THIS, THE ASSESSEE PREFERRED A PPEAL BEFORE LD.CIT(A) WHEREIN THE ASSESSEE HAD CHALLENGED THE ADDITION AN D ALSO THE VALIDITY OF NOTICE U/S 148 OF THE ACT AS ISSUED BY THE ASSESSIN G OFFICER. HOWEVER, THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED BY LD. CIT(A). 4. NOW, THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBU NAL. GROUND NOS.1 TO 3 RAISED BY THE ASSESSEE IN THIS APPEAL READ AS UNDER:- 1. 'THE FIRST 148 NOTICE WAS ISSUED ON 24/09/2008 A ND THE ASSESSMENT HAS BEEN MADE ON 31/12/2010 I.E. MORE TH EN ONE YEAR FROM INITIATION OF REASSESSMENT PROCEEDINGS ON THE INFORMATION RECEIVED. HENCE THE ORDER UNDER APPEAL IS TIME - BA RRED. 2. THE NOTICE DATED 24/09/2008 U/S148 FOR SAME REA SONS WAS ISSUED BY ITO, WARD 2(1), AJMER AND NO ORDER WAS P ASSED BY HIM BY THE TIME THE ITO. TRUST WARD III. DELHI ISSUED NOTI CE U/S 148 ON 09/12/2009 FOR THE SAME FACTS/REASONS. THERE CAN NO T EXIST TWO 148 NOTICES SIMULTANEOUSLY ON TWO DIFFERENT TAX PAYERS FOR A SINGLE TRANSACTION. THE SATISFACTION OF DELHI ITO IS A BOR ROWED ONE & NOT HIS OWN SATISFACTION. 3. THE NOTICE U/S 148 DATED 09/12/2009 FOR ASST. YE AR 2006-07 IS INVALID AS IT HAS TRIED TO BRING IN THE PROPERTY SO LD IN 1995 AND POSSESSION WAS GIVEN/ PAYMENT WAS RECEIVED UNDER A WRITTEN AGREEMENT. REGISTRATION OF SALE DEED IS NOT PRE- CO NDITION IN INCOME TAX FOR A TRANSACTION TO BE TREATED AS SALE. PAYMEN T & POSSESSION IS SUFFICIENT UNDER AN AGREEMENT. ITA NO. 2932/DEL/2013 4 | P A GE 5. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED T HAT LD.CIT(A) FAILED TO ADJUDICATE THE SPECIFIC GROUNDS TAKEN BY THE ASS ESSEE. HE SUBMITTED THAT THERE WERE TWO NOTICES ISSUED U/S 148 OF THE A CT WHEREIN FIRST NOTICE WAS ISSUED ON 24.09.2008 AND THE ASSESSMENT WAS COM PLETED ON 31.12.2010. IT WAS CLEARLY A TIME BARRED ASSESSMEN T. FURTHER, HE SUBMITTED THAT FOR THE SAME REASONS, ANOTHER NOTICE U/S 148 OF THE ACT WAS ISSUED ON 09.12.2009. HE CONTENDED THAT THE EARLIE R NOTICE DATED 24.09.2008 REMAINED IN OPERATION SINCE THAT WAS NOT WITHDRAWN BY THE ASSESSING OFFICER AT AJMER. FURTHER, HE CONTENDED THAT THE PROPERTY IN QUESTION WAS INFACT TRANSFERRED IN THE YEAR 1995 IN TERMS OF SECTION 2(47)(V) OF THE ACT AS THE ENTIRE PAYMENT WAS RECEIVED AND THE POSSESSION WAS HANDED OVER TO THE VENDEE. HE SUBMITTED THAT FOR T HIS TRANSACTION, EVEN THE ASSESSMENT COULD NOT HAVE BEEN RE-OPENED BY IS SUING NOTICE DATED 09.12.2009. LD. COUNSEL FOR THE ASSESSEE HAS TAKEN US THROUGH THE IMPUGNED ORDER TO BUTTRESS THE CONTENTION THAT ALL THESE THREE GROUNDS WHICH WERE CATEGORICALLY TAKEN BEFORE LD.CIT(A), H AVE NOT BEEN ADJUDICATED. FURTHER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION HAS BEEN MADE BY INVOKING THE PROVISION O F SECTION 50C(1) OF THE ACT AND THE TRANSACTION RELATED TO YEAR 1995. THER EFORE, THE ASSESSING OFFICER GROSSLY ERRED IN MAKING THE ADDITION BY INV OKING THE PROVISIONS WHICH WAS NOT IN THE STATUTE BOOK AT THE TIME OF TR ANSFER OF PROPERTY. HE THEREFORE, PRAYED THAT THE IMPUGNED ASSESSMENT DESE RVES BE QUASHED. 6. PER CONTRA, LD. SR. DR SUBMITTED THAT SO FAR THE ASSESSEE IS CONCERNED, ONLY ONE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 09.12.2009. ITA NO. 2932/DEL/2013 5 | P A GE THE NOTICE DATED 24.09.2008 WAS ISSUED TO A DIFFERE NT ENTITY. HE SUBMITTED THAT NOTICE MIGHT HAVE BEEN ISSUED FOR THE SAME TRA NSACTION BUT THE NOTICE TO BOTH EX-FACIE ARE DIFFERENT ASSESSEES. THE NOTICE WAS SUBSEQUEN TLY WITHDRAWN AGAINST THE ANOTHER ASSESSEE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ASSESSEE HAD TAKEN SPECIFIC GROUND S AGAINST THE RE-OPENING OF THE ASSESSMENT BY MAKING MULTI FOLD S UBMISSIONS; FIRSTLY THAT THERE CANNOT BE TWO NOTICES U/S 148 OF THE ACT FOR THE SAME TRANSACTION; SECONDLY, THE NOTICE DATED 09.12.2009 WOULD BE BARR ED BY TIME AS THE PROPERTY IN QUESTION WAS SOLD IN THE YEAR 1995. FU RTHER, IT IS CONTENDED THAT THE ADDITION IS MADE BY INVOKING OF SECTION 50 C(1) OF THE ACT WHICH WAS INSERTED IN THE YEAR 2003 MUCH AFTER TRANSACTIO N WAS EXECUTED. WE HAVE PERUSED THE ENTIRE ORDER OF THE LD.CIT(A). WE DO NOT FIND ANY ADJUDICATION ON THIS GROUND AS THE LD.CIT(A) HAS DI SMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER:- A PERUSAL OF THE REPRODUCED PROVISION WOULD CLEARL Y REVEAL THAT THE SAME ARE APPLICABLE TO ALL THE ASSES SEES AND E VEN A TRUST OR SOCIETY WHICH HAS BEEN GRANTED REGISTRATION U/S 12A A OF THE INCOME TAX ACT. IN VIEW OF THE SAME IT IS UNDISPUTED THAT AS PER INFORMATION RECEIVED FROM ITO, WARD-IL, AJMER, PROPERTY KNOWN A S 'HUSBAND MEMORIAL SCHOOL' WAS VALUED AT RS.77,80,888/- FOR S TAMP PURPOSES BY SUB-REGISTRAR, AJMER. SINCE THE SALE DEED WAS RE GISTERED ON 29.11.2005 THE TRANSACTION HAS TAKEN PLACE DURING A .Y. 2006-07 AND THEREFORE PROVISIONS OF SECTION 50C INSERTED W.E.F. 1.4.2003 ARE VERY MUCH APPLICABLE TO THE CASE OF THE ASSESSEE. ITA NO. 2932/DEL/2013 6 | P A GE AS PER THE SCHEME OF ACTION 11, 12 & 13 EVEN INCOME / PROCEEDS IN THE NATURE OF GAINS ACCRUING ON TRANSFER OF CAPI TAL ASSETS HAD TO BE APPLIED BY THE SAID TRUST/SOCIETY AND ONLY THEREAFT ER EXEMPTION IS AVAILABLE. IN THE PRESENT CASE THE COUNSEL OF THE A SSESSEE HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SHOW ANY APPLICAT ION BY THE ASSESSEE OF THE CONSIDERATION RECEIVED ON SALE OF T HE IMPUGNED IMMOVABLE PROPERTY. EVEN THE BALANCE SHEET AND INCO ME AND EXPENDITURE ACCOUNT FOR A. Y. 2006-07 HAS NOT BEEN FILED. THE CONTENTION OF THE ASSESSEE THAT THE TRANSFER OF THE IMPUGNED PROPERTY TOOK PLACE DURING A. Y. 1995-96 AS PER THE DEFINITION OF TRANSFER OF PROPERTY ACT U/S 2(47) OF THE INCOME TA X ACT IS NOT TENABLE. NO DOCUMENT HAS BEEN BROUGHT ON RECORD TO PROVE THA T THE POSSESSION OF THE IMPUGNED PROPERTY WAS HANDED OVER BY THE ASS ESSEE TO THE BUYER AND HENCE IT CANNOT BE SAID THAT THERE WAS A PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1982. IN VIEW OF THE ABOVE DISCUSSION THE ORDER OF THE A.O. IS CONFIRMED. 8. DURING THE COURSE OF HEARING, LD. SR. DR FAIRLY CONCEDED THAT THESE GROUNDS HAVE NOT BEEN ADJUDICATED BY WAY OF A SPEAK ING ORDER. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS APPEAL BEFORE LD.CIT (A) TO DECIDE THE APPEAL AFRESH BY WAY OF SPEAKING ORDER ON EACH GROUND RAIS ED IN FORM NO.35 BY THE ASSESSEE. WE ARE CONSCIOUS OF THE FACT THAT TH E CASE BEING VERY OLD RELATED TO THE ASSESSMENT YEAR 2006-07. HOWEVER, I N THE ABSENCE OF A SPECIFIC ADJUDICATION BY THE FIRST APPELLATE AUTHOR ITY, WE DEEM IT PROPER TO RESTORE THE GROUNDS TO THE FILE OF LD.CIT(A) FOR AD JUDICATING THE GROUNDS RAISED IN FORM NO.35. LD.CIT(A) IS HEREBY DIRECTED TO DISPOSE OF GROUNDS AND THE APPEAL OF THE ASSESSEE WITHIN THREE MONTHS FROM THE DATE OF RECEIPT ITA NO. 2932/DEL/2013 7 | P A GE OF THIS ORDER. THUS, GROUNDS RAISED BY THE ASSESSE E IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRT UAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 15 TH JULY, 2021. SD/- SD/- (O.P.KANT) (KUL B HARAT) ACCOUNTANT MEMBER JUDICIA L MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI