The Dy. Commissioner of Income-tax, Jalandhar V. Sh. Pritam Singh Luthra, Jalandhar

ITA 309/ASR/2012

• Counselvise Citation: 30920914 RSA 2012
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PREM SINGH; GUNJEET S INGH ITP
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO. 309(ASR)/2012 ASSESSMENT YEAR:2009-2010 PAN :AAADPL6876F DY. COMMR. OF INCOME TAX, VS. SH. PRITAM SINGH LUTH RA, CIRCLE-II, JALANDHAR. HOSHIARPUR ROAD, JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY:SH. PREM SINGH ADV. AND SH. GUNJEET S INGH, ITP DATE OF HEARING:04/09/2012 DATE OF PRONOUNCEMENT:05/09/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER OF THE CIT(A), JALANDHAR, DATED 29.05.2012 FOR THE ASSESSMENT YEAR 2009- 2010 ON THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE CAPITAL GAIN OF RS.1,05,98,532/-. 2. THAT IT IS PRAYED THAT THE ORDER OF THE LD. CIT( A) BE SET ASIDE AND THAT OF THE A.O. RESTORED. ITA NO.309(ASR)/2012 2 2. AT THE TIME OF HEARING, SH. PREM SINGH ADVOCATE ALONG WITH SH. GUNJEET SINGH, ITP RAISED A PRELIMINARY OBJECTION AND STATED THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF THE ASSESSEE BY THIS BENCH IN THE CASE OF DCIT, CIR.IV, AMRITSA R VS. M/S. SIDHARTHA TEXTILE MILLS LTD. AMRITSAR IN ITA NO.338(ASR)/2009 FOR THE ASSESSMENT YEAR 2006-07 DATED 26 TH AUGUST, 2009. THEY FURTHER RELIED UPON THE DECISIO N OF THE ITAT JAIPUR BENCH IN THE CASE OF SMT. VIJAY LAXMI DHADDHA VS. ITO (2009) 20 DTR (JP)(TRIB) 365, DECISION OF ITAT LUCK NOW BENCH IN THE CASE OF CARLTON HOTEL (P) LTD. VS. ACIT (2009) 21 DTR 16 5 AND DECISION OF ITAT, JODHPUR BENCH IN THE CASE OF RAN MAL BHANSALI VS. ACIT (2012) 143 TTJ (JD)(UO) 65. THEY HAVE ALSO FILED WRITTEN SUBMI SSIONS DATED 30.08.2012 AND REQUESTED THAT THE APPEAL FILED BY THE DEPARTME NT MAY BE DISMISSED. 3. SH. TARSEM LAL, THE LD. DR STATED THAT THE ISSUE IN DISPUTE IS NOT COVERED BY THE DECISION OF THIS BENCH AS WELL AS T HE DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE (SUPRA). HE ALS O DREW OUR ATTENTION TOWARDS THE ORDERS PASSED BY THE A.O. AS WELL AS TH E IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY AND STATED THA T THE LAND IN QUESTION IS A CONSOLIDATED LAND SITUATED IN THE SAME AREA AND HAD BEEN DIVIDED AND SOLD AT DIFFERENT PRICE RATES. ONLY ONE SALE DEED HAS BEEN REGISTERED AND REGISTRATION ITA NO.309(ASR)/2012 3 DEED OF THE SAME MENTIONS THE STAMP VALUE OF THE PR OPERTY AT RS.30,000/- PER MARLA AND THE PROPERTY AT SL. NO.2 OF THE TABLE IS MENTIONED BY THE AO AT PAGE 2. HE FURTHER STATED THAT OTHER PROPERTY HAS B EEN SOLD THROUGH POWER OF ATTORNEY WHEREIN STAMP VALUE OF THE PROPERTY IS NOT MENTIONED. IF THE CONTENTION OF THE ASSESSEE RAISED BEFORE THE LD. FI RST APPELLATE AUTHORITY IS ACCEPTED THEN THE PROPERTY AT SL. NO.3 SHOULD HAVE BEEN SHOLD AT THE SAME VALUE AS PROPERTY AT SL. NO.1 @ RS.20,000/- PER MAR LA BUT THE SAME HAS BEEN SOLD AT RS.37,000/- PER MARLA. HE FURTHER STATED TH AT KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PROVISIONS OF SE CTION 50C OF THE INCOME- TAX ACT, 1961 IS ATTRACTED AND THE PROPERTY AT SL. NO.1 BEING SOLD AT RS.20,000/- PER MARLA SHALL BE CONSIDERED TO BE SOL D AT RS.30,000/- PER MARLA AS PER RATE OF STAMP VALUE AUTHORITY AND THE AO HAS RIGHTLY PASSED THE ORDER. HE REQUESTED THAT THE APPEAL FILED BY THE DEPARTMEN T MAY BE ALLOWED BY CANCELING THE IMPUGNED ORDER. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT MATERIAL AVAILABLE WITH US ESPECIALLY THE ORDERS OF THE REV ENUE AUTHORITIES, INCLUDING THE ORDER DATED 26.08.2009 PASSED BY THIS BENCH IN THE CASE OF DCIT, CIR.IV, AMRITSAR VS. M/S. SIDHARTHA TEXTILE MILLS L TD. AMRITSAR IN ITA NO.338(ASR)/2009 FOR THE ASSESSMENT YEAR 2006-07 AS WELL AS OTHER ORDERS OF ITA NO.309(ASR)/2012 4 ITAT, JAIPUR BENCH IN THE CASE OF SMT. VIJAY LAXMI DHADDHA VS. ITO (2009) 20 DTR (JP)(TRIB) 365, ITAT LUCKNOW BENCH I N THE CASE OF CARLTON HOTEL (P) LTD. VS. ACIT (2009) 21 DTR 165 AND ITAT , JODHPUR BENCH IN THE CASE OF RAN MAL BHANSALI VS. ACIT (2012) 143 T TJ (JD)(UO) 65. AFTER GOING THROUGH THE SAID ORDERS, WE ARE OF THE CONSID ERED OPINION THAT THE ORDER PASSED BY THIS BENCH IN THE CASE OF DCIT VS. M/S. SIDHARATHA TEXTILES MILLS LTD. (SUPRA), IN WHICH JUDICIAL MEMBER IS THE PARTY AND IN THE CASE OF ITAT JAIPUR BENCH (SUPRA) IN WHICH, ACCOUNTANT MEM BER IS THE PARTY HAVE ADJUDICATED AND DECIDED THE ISSUE IN DISPUTE IN FAV OUR OF THE ASSESSEE. THE RELEVANT PORTION OF THE FINDINGS OF THIS BENCH DATE D 26.8.2009 GIVEN IN PARA 5 (PAGE 3 & 4) IS REPRODUCED AS UNDER: 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CON SIDERED THE RIVAL SUBMISSIONS, FACTS OF THE CASE AND THE DECISI ONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE. IN THIS CASE, THE ASSET IN QUESTION WAS TRANSFERRED BY EXECUTING POWER OF ATTORNEY DATED 11 .08.2005 AND NOT THROUGH REGISTRATION OF THE DOCUMENT. IN SUCH A SI TUATION, THERE DOES NOT EXIST ANY VALUE ADOPTED OR ASSESSED BY ANY AUTH ORITY OF STATE GOVT. OR STAMP VALUATION AUTHORITY, FOR THE PURPOSE OF PAYMENT OF STAMP DUTY, IN RESPECT OF SUCH TRANSFER. CONSEQUENT LY, IT IS NOT POSSIBLE TO ASCERTAIN AND CONSTRUE THAT THE CONSIDERATION R ECEIVED BY THE ASSESSEE IS LESS THAN THE CONSIDERATION, ON WHICH S TAMP DUTY HAS BEEN PAID. THE DECISIONS RELIED UPON BY THE ASSESSEE REM AIN UNREBUTTED BY THE REVENUE. THEREFORE, WE ARE OF THE CONSIDERED O PINION THAT THE PROVISION OF SECTION 50C IS NOT APPLICABLE TO FACT- SITUATION OF THE PRESENT CASE, AS THE TRANSFER OF THE IMPUGNED ASSET S HAD BEEN EFFECTED BY WAY OF POWER OF ATTORNEY AND NOT REGISTERING THE DOCUMENT, WITH THE REGISTERING AUTHORITIES. THE FACT-SITUATION OF THE PRESENT CASE APPEARS TO HAVE BEEN COVERED BY THE ABOVE AMENDMENT TO SECTION 50C ITA NO.309(ASR)/2012 5 OF THE ACT, WHICH IS EFFECTIVE FROM 01.10.2009. FUR THER, THE CONTENTION OF THE REVENUE THAT SECTION 2(47) OF THE ACT COVERS ALL TRANSFER, BEING AN INCLUSIVE DEFINITION, IS IRRELEVANT IN THE PRESE NT CASE, AS THE DISPUTE PERTAINS TO THE ADOPTION OF CONSIDERATION OF THE IM PUGNED TRANSFERRED ASSET WITHIN THE MEANING OF SECTION 50C OF THE ACT AND NOT THE TRANSFER OF ASSET U/S 2(47) OF THE ACT. 6. IN VIEW OF THE ABOVE DISCUSSIONS AND HAVING REGA RD TO THE CASE LAWS RELIED UPON BY THE ASSESSEE AND CONSIDERING TH E CURRENT AMENDMENT MADE TO SECTION 50C, WE ARE OF THE CONSID ERED OPINION THAT THERE IS NO INFIRMITY IN THE ORDER PASSED BY T HE LD. CIT(A) AND, HENCE, THE SAME IS UPHELD. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. 4.1. THE ORDER PASSED BY THIS BENCH DATED 26.08.200 9 (SUPRA) AS WELL AS ORDERS PASSED BY OTHER CO-ORDINATE BENCHES (SUPRA) ARE EXACTLY ON SIMILAR ISSUE, AS THE ISSUE INVOLVED IN THE PRESENT CASE AN D BY FOLLOWING THE SAME WE HOLD THAT THE ASSET IN QUESTION WAS TRANSFERRED BY EXECUTING POWER OF ATTORNEY AND NOT THROUGH REGISTRATION OF DOCUMENT. IT IS NOT POSSIBLE TO ASCERTAIN AND CONSTRUE THAT THE CONSIDERATION RECE IVED BY THE ASSESSEE IS LESS THAN THE CONSIDERATION, ON WHICH STAMP DUTY HAS BEE N PAID. WE ARE OF THE VIEW THAT PROVISION OF SECTION 50C OF THE ACT, IS NOT APPLICABLE TO THE FACT SITUATION OF THE PRESENT CASE, AS THE TRANSFER OF T HE IMPUGNED ASSETS HAD BEEN EFFECTED BY WAY OF POWER OF ATTORNEY AND NOT REGIST ERING THE DOCUMENT WITH REGISTERING AUTHORITIES. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE DISCUSSED ABOVE AND BY RESPECTFULLY FOLLOWING THE ORDER PASSED BY THIS ITA NO.309(ASR)/2012 6 BENCH AS WELL AS OTHER CO-ORDINATE BENCHES (SUPRA), THE PRESENT APPEAL FILED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5TH SEPTEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5TH SEPTEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. PRITAM SINGH LUTHRA, JALANDHAR. 2. THE DCIT, CIRCLE-II, JALANDHAR. 3. THE CIT(A), JALANDHAR. 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.