RAM JI LAL MEENA, Jaipur V. ITO, Jaipur

ITA 306/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2045 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 24-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Fair market value; Valuation report
• Section: 50C; 148; 37

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 306/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 RAM JI LAL MEENA, F.A-20, SIDHARTH NAGAR, MALVIYA NAGAR, JAIPUR (RAJ)- 302017. CUKE VS. INCOME TAX OFFICER, WARD-6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AOOPL 6275 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VIJAY GUPTA. JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/10/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 04/10/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER OF THE LD. CIT(A)-2, JAIPUR DATED 17/03/2017 FOR THE A. Y. 2008-09, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS NOT JUSTIFIED IN HOLDING THE ADDITION OF RS. 41,80,805/- UNDER THE HEAD CAPITAL GAIN MADE BY THE A.O. THE AC TION OF LD. CIT(A) IS ILLEGAL AND DESERVED TO BE SET ASIDE. THE LD. CIT(A) HAS ERRED BOTH IN FACTS AND IN LAW. ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) GROSSLY ERRED IN HOLDING AN ADDITION OF RS. 1,00,000/- UNDE R THE HEAD INCOME FROM OTHER SOURCES. THE ACTION OF THE LD. CI T(A) IS ILLEGAL AND DESERVES TO BE SET ASIDE. THE LD. CIT(A) HAS ER RED BOTH IN FACTS AND IN LAW. 2. THE ASSESSEE HAS NOT FILED RETURN OF INCOME FOR T HE ASSESSMENT YEAR 2008-09. NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ISSUED ON 23/03/2015. REGARDING THE FACTS AND OBSERVATION, THE ASSESSING OFFICER HAS OBSERVED AS UNDER: 2. AS PER INFORMATION AVAILABLE IN THIS OFFICE, IT WAS GATHERED THAT THE ASSESSEE SOLD AN IMMOVABLE PROPERTY SITUATED AT PLOT NO 106, TARN CHHAYA NAGAR, SCHEME ON 07.05.2007 FOR CONSIDERATION OF RS 11,70,000/-. THE VALUE OF THE P ROPERTY WAS ADOPTED AT RS.53,11,367/- BY THE SUB REGISTRAR IV, JAIPUR. DURING THE ASSESSMENT PROCEEDINGS DOCUMENTS OF PURCHASE/AGREEMENT AND SALE WERE SUBMITTED BY THE A SSESSEE. ON PERUSAL OF THE PURCHASE DEED IT WAS SEEN THAT TH E PROPERTY UNDER CONSIDERATION WAS PURCHASED BY THE ASSESSEE T HROUGH AN AGREEMENT ON 20.03.2003 FOR A CONSIDERATION OF RS.9 ,50,000/- FROM ONE SHRI HARBHAN SINGH AND THUS HE BECAME THE OWNER OF THE PROPERTY. IN THE AGREEMENT IT WAS CLEARLY MENTI ONED AT PAGE NO 2 THAT THE PURCHASER HAS BECOME THE OWNER AND PO SSESSION HAS BEEN TAKEN OVER BY HIM. FURTHER, THE PROPERTY U NDER CONSIDERATION WAS SOLD TO SHRI BHUPENDRA KUMAR DAK FOR SALE CONSIDERATION OF RS.L 1,70,000/- ON 07.05.2007 AND THE SALE DEED WAS GOT REGISTERED WITH SUB REGISTRAR-IV, JAIPUR. T HE SALE DEED WAS SIGNED BY THE ASSESSEE. THE REGISTERING AUTHORI TY ADOPTED THE VALUE OF THE PROPERTY AT RS.53,11,367/- FOR STA MP DUTY PURPOSES. IT WOULD BE APPROPRIATE TO MENTION HERE T HAT INITIALLY ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 3 PLOT OF LAND WAS ALLOTTED TO SHRI HARBHAN SINGH BY M/S. SUBHASH SINDHI CO-OPERATIVE HOUSING SOCIETY LTD., JAIPUR ON 28.08.1987 BEING A MEMBER OF THE SOCIETY. THERE WAS SOME DISPU TE BETWEEN THE RIICO AND SUBHASH SINDHI CO-OPERATIVE S OCIETY WITH REGARD TO POSSESSION OF THE PROPERTY. SHRI HAR BHAN SINGH SOLD THE PROPERTY TO SHRI RAM JI LAI MEENA AND SHRI RAM JI MEENA IN TURN SOLD THE PROPERTY TO SHRI BHUPENDRA K UMAR DAK AND SALE CONSIDERATION WAS RECEIVED BY THE ASSESSEE . AT THAT POINT OF TIME THE MATTER WAS PENDING BEFORE THE HON BLE SUPREME COURT FOR ITS DECISION. THIS FACT HAS ALSO BEEN STATED IN THE SALE DEED. LATER ON, I.E. AROUND AFTER SIX YEAR S THE HONBLE APEX COURT DELIVERED ITS DECISION ON 12.02.2013 IN FAVOUR OF RIICO. 3. THE ASSESSEE VIDE LETTER SUBMITTED ON 04.01.2016 CONTENDED THAT FOR CALCULATING OF CAPITAL GAIN INCOME THE PRO VISIONS OF SECTION 50-C IS NOT APPLICABLE IN THE CASE OF THE A SSESSEE. IN THIS REGARD IT HAS BEEN STATED THAT THE RIGHT IN PROPERT Y WAS SOLD WITHOUT HANDING OVER THE POSSESSION OF THE PROPERTY (AS IT WAS ALREADY ACQUIRED BY RIICO) AND THE TITLE OF THE PRO PERTY WAS ALREADY IN DISPUTE WITH RIICO AND WAS UNDER JUDICIA L REVIEW BY THE COMPETENT AUTHORITIES/COURTS. THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE, AS THE TRANSACTION TOOK PLACED W ELL BEFORE THE DECISION OF THE HONBLE SUPREME COURT. FIRSTLY THE PROPERTY WAS PURCHASED BY THE ASSESSEE AND THEN SOLD OUT FURTHER AND RECEIVED SALES CONSIDERATION. THE PROPERTY WAS SOLD OUT BY THE ASSESSEE AND SALE DEED WAS ALSO GOT EXECUTED WITH T HE STAMP AUTHORITIES. WHEN THERE IS CLEAR CUT TRANSACTION OF SALE OF IMMOVABLE PROPERTY IT CANNOT BE SAID AND ACCEPTABLE THAT IT WAS A TRANSFER OF SALE OF RIGHTS ONLY. IN VIEW OF THE F ACTS OF THE CASE IT IS A TRANSFER WITHIN THE MEANING AND PURVIEW OF SEC TION 2(47) OF ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 4 THE IT ACT, 1961 AND THE ASSESSEE IS LIABLE TO PAY CAPITAL GAIN TAX AND SECTION 50C OF THE IT ACT IS APPLICABLE IN THE CASE. SECTION 50C IS APPLICABLE ON TRANSFER OF CAPITAL AS SETS BEING LAND OR BUILDING OR BOTH. IN VIEW OF THE FACTS OF THE CASE AS DISCUSSED ABOVE THE ASSESSEE HAS SOLD OUT THE IMMOVABLE PROPE RTY IN SHAPE OF PLOT AND PLEA OF THE ASSESSEE THAT RIGHTS WERE SOLD OUT IS NOT ACCEPTABLE. A SHOW CAUSE VIDE ORDER SHEET DA TED 11.01.2016 WAS GIVEN TO THE ASSESSEE AS WHY NOT SAL ES CONSIDERATION BE TAKEN AT RS 53,11,637/- ADOPTED BY THE STAMP REGISTRATION AUTHORITIES WITHIN THE MEANING AND PUR VIEW OF SECTION 50C OF THE IT ACT. THE ASSESSEE HAS NOT SUB MITTED ANY REPLY/WRITTEN SUBMISSION THEREFORE IT IS ASSUMED TH AT HE HAS NOTHING TO SAY IN THIS REGARD. 4. THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME FOR A.Y 2008-09 IN RESPONSE TO NOTICE U/S 148 AND ALSO NO RETURN OF INCOME WAS FILED EARLIER U/S 139(1) OF THE IT ACT. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAS ONLY FILED A UNSIGNED COMPUTATION OF TOTAL INCOME FOR A.Y 2008-09 ALONG WITH HIS LETT ER DATED 05.10.2015. CAPITAL GAIN LOSS OF RS 1,22,303/- WAS SHOWN IN THE SAID COMPUTATION. HOWEVER NO RETURN OF INCOME WAS F ILED BY THE ASSESSEE IN RESPONSE TO NOTICE ISSUED U/S 148. THER EFORE IN SUCH CIRCUMSTANCES AND FACTS A SHOW CAUSE U/S 144(1) OF THE IT ACT) 1961 WAS ISSUED ON 28.01.2016. IN THE SHOW CAUSE IT WAS PROPOSED TO CONSIDER SALE CONSIDERATION AT RS.53,11 ,367/- I.E. THE VALUE AS ADOPTED BY STAMP AUTHORITIES FOR COMPU TING CAPITAL GAIN ON SALE OF PLOT. FURTHER IT WAS ALSO PROPOSED TO ESTIMATE & ASSESS REGULAR INCOME AT RS 2,00,000/- IN ABSENCE O F ANY RETURN OF INCOME. 5. IN RESPONSE TO THE SHOW CAUSE ISSUED U/S 144(1) THE ASSESSEE HAS SUBMITTED REPLY VIDE LETTER DATED 02.02.2016, P LACED ON ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 5 RECORD. THE REPLY OF THE ASSESSEE WAS GONE THROUGH CAREFULLY. IN HIS REPLY THE ASSESSEE HAS STATED MORE OVER THE SAM E FACTS AS SUBMITTED EARLIER. THE ASSESSEE HAS SUBMITTED THAT SECTION 50C IS NOT APPLICABLE AS THE LAND WAS UNDER DISPUTE AND THE ASSESSEE HAS SOLD OUT THE RIGHTS. THE REPLY OF THE ASSESSEE WAS NOT ACCEPTABLE FOR THE REASONS AS ALREADY DISCUSSED ABO VE IN PARA 3. AGAIN THE ASSESSEE HAS NOT FILED ANY RETURN OF INCO ME U/S 148 OF THE IT ACT. HOWEVER, THE ASSESSEE IN HIS SUBMISSION HAS OBJECTED THE VALUE ADOPTED BY THE STAMP AUTHORITIES AND REQU ESTED TO REFER TO VALUATION OFFICER. IT IS PERTINENT TO MENT ION HERE THAT THE ASSESSMENT PROCEEDINGS WERE REGULARLY ATTENDED BY T HE ASSESSEE FROM SEPTEMBER 2015 AND IN SPITE KNOWING THE FACTS NEVER OBJECTED THE VALUE OF THE PROPERTY ADOPTED BY THE S TAMP AUTHORITIES DURING THE ASSESSMENT PROCEEDINGS. HOWE VER IN LAST JUNCTURE OF THE PROCEEDINGS VIDE HIS LETTER DATED 0 2.02.2016 SUBMITTED ON 03.02.2016, THE ASSESSEE HAS OBJECTED THE VALUE OF THE PROPERTY ADOPTED BY THE STAMP AUTHORITIES. THE ASSESSEE SHOULD HAVE OBJECTED THE SAME WELL BEFORE IN TIME W HICH WAS NOT DONE SO. HOWEVER THE MATTER WAS REFERRED TO THE DEPARTMENTAL VALUATION OFFICER AND REFERENCE WAS SE NT TO DVO VIDE THIS OFFICES LETTER NO 2243 DATED 05.02.2016 FOR DETERMINING THE FAIR MARKET VALUE OF THE PROPERTY I N VIEW OF THE OBJECTION RAISED BY THE ASSESSEE. THE DVO, JAIPUR V IDE HIS LETTER NO 183 DATED 10.02.2016 RETURNED BACK THE PROPOSAL STATING THEREIN THAT I WOULD LIKE TO INFORM YOU THAT THE STATUARY REFERENCES NORMALLY REQUIRE 120 DAYS. AS A NUMBER O F CASE ARE TO BE DISPOSED OFF BY THIS OFFICE BEFORE 31.03.2016 BEING TIME BARRING CASE, IT WOULD NOT BE POSSIBLE TO TAKE UP T HIS CASE AT THIS STAGE. THEREFORE REFERENCE IN ORIGINAL IS HEREBY RE TURNED. ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 6 THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND MADE AN ADDITION OF RS. 41,80,805/- AS LONG TERM CA PITAL GAIN. 3. THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASS ESSEE BY HOLDING AS UNDER: 2.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSES SMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. IT IS NOTED THAT THE ASSESSEE HAD MADE A SALE OF IMMOVABLE PROPERTY AT RS.11,70,000/- SALE C ONSIDERATION, AND NO RETURN OF INCOME HAD BEEN FILED ON THE RELEVANT YEAR. IN RESPONSE TO NOTICE UNDER SECTION 148, RETURN WAS FILED RETUR NING A CAPITAL LOSS ON THE TRANSACTION AT RS. 1,22,303/-. AS PER INFORMATI ON WITH THE ASSESSING OFFICER, THE VALUE OF THE PROPERTY WAS AD OPTED AT RS.53,11,367/- BY THE SUB- REGISTRAR IV, JAIPUR. TH E ASSESSING OFFICER NOTED THAT THE SAID PROPERTY HAD BEEN PURCHASED FOR A CONSIDERATION OF RS.9,50,000/- FROM ONE SHRI HARBHAJAN SINGH THRO UGH AN AGREEMENT ON 20.03.2003 AND SOLD TO SHRI BHUPENDRA KUMAR DAK FOR A CONSIDERATION OF RS. 11,70,000/- ON 07.05.2007 AND THE SALE DEED WAS REGISTERED WITH SUB-REGISTRAR-IV, JAIPUR. FURTHER F ACTS OF THE CASE ARE THAT THE PROPERTY WAS INITIALLY ALLOTTED TO SHRI HA RBHJAN SINGH BY M/S SUBHASH SINDHI COOPERATIVE SOCIETY AND A DISPUTE WA S GOING ON BETWEEN RIICO AND THE SOCIETY AS THE LAND HAD BEEN ACQUIRED BY THE GOVERNMENT AND HANDED OVER TO RIICO AND YET THE SUB HASH SINDHI COOPERATIVE SOCIETY HAD PURCHASED THE SAME FROM THE KHATEDARS BEING AWARE OF THE FACT OF ITS ACQUISITION BY THE G OVERNMENT. DURING ASSESSMENT PROCEEDINGS, IT HAS BEEN CONTEND ED THAT PROVISIONS OF SECTION 50C WERE NOT APPLICABLE AS ONLY THE RIGH T IN PROPERTY WAS SOLD WITHOUT HANDING OVER THE POSSESSION OF THE PRO PERTY AND THE TITLE OF THE PROPERTY WAS IN DISPUTE. THE ASSESSING OFFIC ER HELD THAT SINCE ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 7 THE SALE AND PURCHASE OF IMMOVABLE PROPERTY HAS TAK EN PLACE THAT THE SALE DEED HAD BEEN REGISTERED AND STAMP VALUE DETER MINED AS PER RULES, SECTION 50C WOULD BE APPLICABLE AND RS.41,80 ,805/- HAD BEEN ARRIVED AT AS THE CAPITAL GAINS. IN THE PRESENT PROCEEDINGS, THE AUTHORIZED REPRESE NTATIVE HAS SUBMITTED THAT IN VIEW OF THE DECISION OF THE HON'B LE SUPREME COURT IN THIS CASE THE LAND WHICH WAS SOLD BY KHATEDARS WAS A DISPUTED LAND AND SOLD THROUGH AN AGREEMENT TO THE RESPONDENT SOC IETY ON 21.07.1981. SUBSEQUENTLY, THE SOCIETY WITHOUT ANY C HARGE OR CONVERSION/ APPROVAL FROM STATE GOVERNMENT SOLD THE LAND TO SHRI HARBHAJAN SINGH WHO IN TURN EXECUTED THE SALE AGREE MENT AND POWER OF ATTORNEY IN FAVOUR OF SHRI RAMJI LAI MEENA IN MA Y, 2007 IN WHICH, IN THE DOCUMENTS, IT WAS CLEARLY MENTIONED THAT THE LA ND HAD BEEN ACQUIRED BY THE RLICO/STATE GOVERNMENT AND IF NOT F REED/RELEASED BY THE GOVERNMENT PURCHASERS WILL ONLY BE ENTITLED TO COMPENSATION FROM THE RLLCO/STATE GOVERNMENT. ON THE ABOVE BASIS , IT IS CLAIMED THAT THE TRANSACTION BETWEEN SOCIETY, HARBHAJAN SIN GH, RAMJI LAI TO BHUPENDRA KUMAR TO THE ULTIMATE PURCHASER ARE ONLY TRANSFER OF RIGHTS. RELIANCE WAS 'W 'W'W 'W PLACED ON THE CASE OF TARA CHAND JAIN VS. IT DATED 09.10.2015 OF ITAT, JAIPUR AND ATUL G. PURANIK VS. ITO OF ITAT, MUMBAI. FURTHER, REQUEST HAS BEEN MADE FOR REFERENC E TO VALUATION OFFICER AS CERTAIN FACTORS NEEDED TO BE CONSIDERED FOR ITS VALUATION. MOREOVER, IT WAS ALSO MENTIONED THAT THE ASSESSEE WAS NOT TRYING TO CIRCULATE BLACK MONEY AS BUYER OF RIGHTS WAS ADDL. DGP WHO IS NOT EXPECTED TO INDULGE IN SUCH A TRANSACTION. ON THE B ASIS OF ALL THE ABOVE, IT WAS SUBMITTED THAT INVOCATION OF SECTION 50C WAS NOT IN ORDER. DURING THE PROCEEDINGS, THE AUTHORIZED REPRESENTAT IVE WAS REQUIRED TO PRODUCE THE NOTIFICATION BY WHICH THE GOVERNMENT OF RAJASTHAN/RIICO HAD ACQUIRED THE PROPERTY AS ALSO T HE EVIDENCE AND ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 8 DATE ON WHICH PHYSICAL POSSESSION WAS ACQUIRED BY T HE GOVERNMENT BUT THE AUTHORIZED REPRESENTATIVE EXPRESSED HIS INA BILITY AND PLACED RELIANCE ON THE CONTENTS OF THE ORDER PASSED BY THE HON'BLE APEX COURT IN THIS CASE DATED 12.02.2013. CONSIDERING THE ABOVE FACTUAL MATRIX THAT ALL THE PARTIES INVOLVED RIGHT FROM M/S SUBHASH SINDHI SOCIETY, IN REFERENCE TO WH ICH THE ORDER OF APEX COURT HAS BEEN RENDERED AND THE SUBSEQUENT SEL LERS AND PURCHASERS ARE AWARE OF THE ILLEGALITY OF THE TRANS ACTION AS THE LAND HAD ALREADY BEEN ACQUIRED BY THE GOVERNMENT AND HAN DED OVER TO RIICO AS PER THE ORDER. THE AUTHORIZED REPRESENTATI VE IS ALSO RELYING ON THE FACT THAT SINCE THE APEX COURT HAS HELD THE TRANSACTION AS VOID, THE SALE AND ITS SUBSEQUENT EVENTS ARE ALSO VOID AN D APPLICATION OF SECTION 50C OF THE I.T. ACT. 1961 IS CORRECT. THE OBSERVATION OF THE HON'BLE COURT REGARDING THE BEHAVIOR OF THE SOCIETY INCLUDED THAT SOCIETY MEMBERS HAD ENTERED I NTO AN AGREEMENT TO SELL EVEN THOUGH, A NOTIFICATION UNDER SECTION 4 TO CARRY OUT ACQUISITION HAD BEEN ISSUED BY THE GOVERNMENT, FULL Y KNOWING THE LEGAL IMPLICATIONS THAT MAY ARISE AND THE BONAFIDES OF TH E SOCIETY HAD BEEN QUESTIONED. HOWEVER, THE RELEVANT AND IMPORTANT POI NT IS THAT AT THE TIME OF THE SALE TRANSACTION, THE HON'BLE RAJASTHAN HIGH COURTS ORDER WAS IN FORCE IN THIS CASE, IN WHICH IT HAD BEEN RUL ED AS FOLLOWS (PARA 27 OF THE APEX COURTS ORDER): IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7254 OF 2003 THE RAJASTHAN STATE INDUSTRIAL DEVELOPMENT .APPELL ANT AND INVESTMENT CORPORATION VERSUS SUBHASH SINDHI COOPERATIVE HOUSING SOCIETY RESPOND ENTS JAIPUR & ORS. WITH CIVIL APPEAL NO. 853 OF 2013 J U D G M E N T ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 9 DR. B. S. CHAUHAN, J. 1. THESE APPEALS HAVE BEEN PREFERRED AGAINST THE IMPUG NED JUDGMENT AND ORDER DATED 30.7.2002 PASSED BY THE HIGH COURT OF R AJASTHAN (JAIPUR BENCH) IN CIVIL WRIT PETITION NO. 454 OF 1993, BY W HICH THE HIGH COURT HAS ISSUED DIRECTIONS TO THE RAJASTHAN STATE INDUST RIAL DEVELOPMENT AND INVESTMENT CORPORATION (IN SHORT `RIICO), THE APPE LLANT HEREIN, TO RELEASE THE LAND IN DISPUTE FROM LAND PAGE 2 ACQUIS ITION IN FAVOUR OF RESPONDENT NO.1 - HOUSING SOCIETY (HEREINAFTER REFE RRED TO AS `THE SOCIETY). 27. A LARGE NUMBER OF ISSUES WERE AGITATED BEFORE T HE HIGH COURT, HOWEVER, THE HIGH COURT DID NOT DEAL WITH ANY OF THOSE. THE COURT ALLOWED THE PETITION MERELY OBSERVING: THE PETITIONER SUBHASH SINDHI COOPERATIVE HOUSING SOCIETY IS CONTESTING ONLY FOR A LIMITED PIECE OF LAND MEASURI NG 17 BIGHAS 9 BISWAS WHICH HAD BEEN ACQUIRED AND GIVEN TO DGDC BY THE RI ICO. THE CASE OF THE SOCIETY IS THAT IN VIEW OF THE OBSERVATIONS MAD E BY THE SUPREME COURT IN ITS ORDER, IT HAS PLEADED ITS CASE IN THIS PETITION ON THE BASIS THAT THE OTHER LAND WHICH HAD BEEN ACQUIRED HAD BEEN REL EASED OR IT STOOD DE FACTO RELEASED AND THE GOVERNMENT WAS ITSELF A P ARTY TO IT IN RELEASING THE ACQUIRED LAND AND LARGE NUMBER OF LANDS OF THIS NATURE DE FACTO STOOD RELEASED FROM ACQUISITION INASMUCH AS HOUSES HAVE BEEN CONSTRUCTED THEREON; THE GOVERNMENT ITSELF HAS ACQU IESCED WITH SUCH CONSTRUCTION AND HAS ALSO TAKEN STEPS FOR REGULARIS ATION OF SUCH CONSTRUCTION AND THE DECISION WHICH WAS TAKEN BY TH E JDA IN THE MEETING HEADED BY THE CHIEF MINISTER WAS IMPLEMENTE D QUA ALL OTHERS EXCEPT THE LAND OF PETITIONER SOCIETY, MERELY BECAU SE THE PETITIONER SOCIETYS LAND HAD BEEN GIVEN TO DGDC/RIICO. THIS S MALL PIECE OF LAND WHICH IS CLAIMED BY THE SOCIETY IN THE FACTS AND CI RCUMSTANCES OF THE CASE, CAN VERY WELL BE RESTORED TO THE SOCIETY AND TO THAT EXTENT, LAND ALLOTTED TO DGDC CAN BE CURTAILED WITHOUT HAVING AN Y ADVERSE IMPACT ON THE PROSPECTS OF BUSINESS OF DGDC. FACTS HAVE COME ON RECORD THROUGH DOCUMENTS THAT TO START WITH, DGDC HAD DEMANDED ONL Y 35 ACRES OF LAND. THIS DEMAND WAS RAISED FROM TIME TO TIME AND ULTIMATELY, IT REACHED UPTO 105 ACRES. IT IS ALSO ON RECORD THAT T HE RIICO HAD GIVEN ONLY 80 ACRES OF LAND TO DGDC AS AGAINST THE ALLOTM ENT OF 105 ACRES. IN SUCH A SITUATION, IF A SMALL PIECE OF LAND MEASURIN G 17 BIGHAS 9 BISWAS ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 10 OUT OF THE LAND ALLOTTED TO DGDC IS RESTORED BACK T O THE PETITIONER SOCIETY IT CANNOT HAVE ANY ADVERSE IMPACT ON THE BU SINESS PROSPECTS OF DGDC NOR THE RIICO MAY 29 PAGE 30 HAVE ANY JUST OBJ ECTION AND THE STATE GOVERNMENT WHICH HAS ALREADY ACQUIESCED WITH THE RELEASE OF SUCH ACQUIRED LANDS IN LARGE NUMBER OF CASES, CANNO T HAVE ANY LEGITIMATE CASE TO CONTEST THE GRANT OF RELIEF TO T HE PETITIONER SOCIETY AND THE PETITIONER SOCIETY IS FOUND TO BE ENTITLED FOR THE SAME ON THE PRINCIPLES OF PARITY AS WELL AS EQUITY. DUE TO THE SAME, THE OWNERSHIP OF THE LAND WAS LEG AL AT THE TIME OF REGISTRATION OF SALE DEED AND VESTED WITH THE SELLE R. FURTHER, THE NOTING IN THE REGISTERED SALE DEED REGARDING THE LAND AND ITS OWNERSHIP ARE REPRODUCED BELOW: ;G FD MIJKSDR OF.KZR IYKV DKS EQ[R;KJDRKZ JH GJHKKU FLAG DKS LQHKKK FLU/KH DKS VKIJKSFVO GKMFLAX LKSLK;VH FYFEV SM T;IQJ JFT- UECJ 1588 ,Y DS VKOVAU I= FNUAKD 28-08-1987 BZLOH }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}ZLJDKJH] CSAD O TULK/KKJ.K LS EQDR G S RFKK FDLH DTKZ] DQDHZ FMH] O VUQCU/K I= }KJK HKH CFU/KR UGHA GS ,OA BLDS FOK; ESA EQ[R;KJDRKZ DKS IZR;SD IZDKJ LS VIUS DKE ESA YSUS O ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 11 JGU] FO; O GLRKURFJR VKFN DJUS DS LEIW.KZ LOROKF/K DKJ EKFYFDKUK GD IZKIR GSA ;G FD VC FO; EWY;/KU DH JKF'K ESA LS F}RH;I{K LS DQN HKH YSUK CKDH UGHA JGK GSA VC FO; FD;S X;S IYKV LS EQ[ R;KJDRKZ] IZFKEI{K DK O MUDS MRRJKF/KDKFJ;KSA] LFKKUKIUUKSA] OKFJLKUKSA] ,TSUVKSA IZFRFUF/K;KWA VKFN DK DKSBZ GD O LECU/K UGHA JGK GS RFKK UK GH HKFO; ESA JGSXKA VC MIJKSDR OF.KZR IYKV DKS F}RH;I {K VIUS FDLH HKH DKE ESA YSOS] EAFTY NJ EAFTY FUEKZ.K DJKOS ] IKUH O FCTYH DS DUSD'KU VIUS UKE YXOK;S] LO;A JGS] FDJK;S IJ NSOS ;K FDLH HKH O;FDR DKS FDLH HKH IZDKJ LS JGU] FO; O GL RKURFJR VKFN DJ QK;NK MBKOS] BLESA E[R;KJDRKZ] IZFKEI{K DKS O MUDS MRRJKF/KDKFJ;KSA DKS FDLH IZDKJ DH VKIFRR DJUS DK V F/KDKJ UGH GKSXKA ;G FD FO; FD;S X;S IYKV DS LECU/K ESA JHDKS }KJK VOKFIR IZF;K DS VFRFJDR VKT LS IGYS DH DKSBZ CDK;K JKF'K >XM+K] V.VK] _.K HKKJ LJDKJH] V}ZLJDKJH] CSSAD O TULK/KKJ DK IK;K X;K RKS MU LELR DS FUIVKJS DH FTEESNKJH EQ[R;KJDRKZ ] IZFKEI{K DH GKSXH RFKK VKT DS I'PKR~ DH LELR FTEESNKJH F}RH; I{K DH GKSXH ,OA HKFO; ESA YXUS OKYS LELR FU;EU 'KQYD] 'K GJH TEKCUNH] LHOJST PKTZ] VSDLST VKFN DH JDE F}RH;I{K G H VKIUS IKL LS TEK DJKOSXKA ;G FD FO; FD;S X;S IYKV LS LECFU/KR LELR VLY DKXT KR IZFKEI{K US F}RH;I{K DKS LEHKYK FN;S GSA ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 12 ;G FD FO; FD;S X;S IYKV DS LECU/K ESA VC F}RH;IK{ K DKS VF/KDKJ GS FD OG BL FO; I= DS VK/KKJ IJ LELR DK;KZ Y;KSA ESA EQ[R;KJDRKZ JH GJHKKU FLAG DS UKE DS LFKKU IJ V IUK UKE VAFDR DJOK YSOS] FTLESA IZFKEI{K }KJK F}RH;I{K DK I W.KZ FYF[KR O EKSF[KD LG;KSX FD;K TKOSXKA IN VIEW OF THE DISCUSSION AS ABOVE, IT IS CLEAR TH AT ON THE DATE OF TRANSACTION, THE OWNERSHIP OF THE LAND WAS WITH THE APPELLANT AS PER THE ORDER OF THE JURISDICTIONAL HIGH COURT IN FORCE AT THAT TIME. THE REGISTERED SALE DEED CLEARLY SHOWS THAT THE LAND WA S TRANSFERRED FOR A CONSIDERATION AND ALL THE PAPERS OF OWNERSHIP WERE HANDED OVER. IN VIEW OF THE ABOVE, THE VALUE ADOPTED BY STAMP VALUA TION AUTHORITY HAS TO BE ADOPTED. AS REGARDS REFERENCE TO VALUATION OF FICER, THE SAME WAS REQUESTED FOR BY THE ASSESSEE AT THE FAG END OF THE FINANCIAL YEAR AND THE TIME WAS INSUFFICIENT FOR THE SAME AND THE ASSE SSMENT WAS GETTING TIME BARRED. THE COMPLIANCE WAS MADE TO THE SHOW CA USE NOTICE UNDER SECTION 144(1) ON 02.02.2016. IN VIEW OF THE ABOVE, THE APPLICATION OF SECTION 50C IS UPHELD AND THE ADDITI ON OF RS.41,80,805/- UNDER THE HEAD LONG TERM CAPITAL GAIN IS CONFIRMED. 4. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS NOT SO LD OUT ANY PROPERTY BUT ONLY RIGHTS, THEREFORE, THE PROVISIONS OF SECTI ON 50C OF THE ACT ARE NOT APPLICABLE. HE CLAIMED THAT THE PROPERTY WAS SOL D WITHOUT HANDING OVER THE POSSESSION AND THE TITLE OF THE PROPERTY WA S IN DISPUTE. 5. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ASSESSEE HAS SOLD THE PLOT OF LAND, WHICH WAS ALLOTTED TO HIM BY A COOPERATIVE SOCIETY ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 13 AND THE SALE DEED CLEARLY MENTIONS IN THIS REGARD, THEREFORE, THERE IS NO MERIT IN THE CLAIM OF THE ASSESSEE. 6. AFTER HEARING BOTH THE SIDES, I HOLD THAT THIS WA S A TRANSFER OF A PLOT, WHICH WAS ALLOTTED TO THE ASSESSEE BY A COOPERA TIVE SOCIETY, THEREFORE, THERE IS NO SUBSTANCE IN THE PLEADINGS O F THE ASSESSEE. THE FACTS AND CIRCUMSTANCES OF THE CASE ARE CLEARLY SHO WS THAT THE PROVISIONS OF SECTION 50C OF THE ACT ARE APPLICABLE AND IT WAS A TRANSFER OF A CAPITAL ASSET BEING PLOT OF LAND. 7. THE SECOND ARGUMENT OF THE LD AR OF THE ASSESSEE WAS THAT, ALTHOUGH, THE ASSESSEE HAS SUBMITTED THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY WAS ON A HIGHER SIDE AND T HE ASSESSEE HAS REQUESTED TO THE ASSESSING OFFICER TO REFER THE MAT TER TO THE VALUATION OFFICER. THE ASSESSING OFFICER DISMISSED THE CLAIM O F THE ASSESSEE FOR THE REASON THAT THE ASSESSMENT WAS GETTING TIME BARR ED AND THERE IS NO TIME LEFT FOR THE DVO TO ESTIMATE THE FAIR MARKET V ALUE. FOR READY REFERENCE, THE PROVISIONS OF SECTION 50C(2) OF THE ACT READ AS UNDER: 50C (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1), WHERE ( A ) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHO RITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; ( B ) THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE B Y THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 14 THE ASSESSING OFFICER MAY REFER THE VALUATION OF TH E CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS MADE, THE P ROVISIONS OF SUB-SECTIONS (2), (3), (4), (5) AND (6) OF SECTION 16A, CLAUSE ( I ) OF SUB-SECTION (1) AND SUB- SECTIONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5 ) OF SECTION 24, SECTION 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX A CT, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODIFICATIONS, APPLY IN RELAT ION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFERENCE MADE BY THE ASSESS ING OFFICER UNDER SUB- SECTION (1) OF SECTION 16A OF THAT ACT. EXPLANATION 1 . FOR THE PURPOSES OF THIS SECTION, 'VALUATION OFFICE R' SHALL HAVE THE SAME MEANING AS IN CLAUSE ( R ) OF SECTION 2 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957). EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION, THE EXPRESSION 'A SSESSABLE' MEANS THE PRICE WHICH THE STAMP VALUATION AUTHORITY WOULD HAVE, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE, ADOPTED OR ASSESSED, IF IT WER E REFERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUTY. THUS, THE PROVISIONS OF THE ACT PROVIDES THAT WHERE T HE ASSESSEE CLAIMS BEFORE THE ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXC EEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRAN SFER THEN THE ASSESSING OFFICER MAY REFER THE VALUATION OF THE CA PITAL ASSET TO THE VALUATION OFFICER. IN PARAGRAPH NO. 5 OF THE ASSES SMENT ORDER, IT WAS CLEARLY STATED BY THE ASSESSING OFFICER THAT THE AS SESSEE HAS OBJECTED THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY AND REQUESTED TO REFER THE MATTER TO THE VALUATION OFFICER. THE ASSES SING OFFICER REFERRED THE MATTER TO THE DEPARTMENTAL VALUATION OFFICER ON 05/02/2016 FOR DETERMINATION OF FAIR MARKET VALUE OF THE PROPERTY. HOWEVER, THE DVO RETURNED BACK THE PROPOSAL BY STATING THAT THE STAT UTORY REFERENCES NORMALLY REQUIRES 120 DAYS AND NUMBER OF CASES ARE TO BE DISPOSED OFF ITA 306/JP/2017_ RAM JI LAL MEENA VS ITO 15 BY HIS OFFICE PRIOR TO 31/3/2016 BEING TIME BARRING CASES, THEREFORE, IT WOULD NOT BE POSSIBLE TO TAKE THE CASE AT THAT STAGE AND THE REFERENCE WAS RETURNED. AFTER HEARING BOTH THE SIDES AND IN TH E INTEREST OF JUSTICE AND EQUITY, I FIND IT APPROPRIATE TO RESTORE THE MA TTER TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED DE NOVO AFTER OBTAI NING VALUATION REPORT FROM THE DVO. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 04/10/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04 TH OCTOBER, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAM JI LAL MEENA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-6(1), JAIPUR. 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. 306/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR