Shri Rajkumar Jain, Indore V. THE ITO, Ward-1(3), Indore

ITA 322/IND/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5665 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

RAJKUMAR JAIN ITA NO.322/IND/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, INDORE BEFORE SHRI D.T. GARASIA, HON'BLE JUDICIAL MEMBER ITA NO.322/IND/2016 A.Y.2009-10 RAJKUMAR JAIN INDORE PAN ADZPJ 5175H ::: APPELLANT VS INCOME TAX OFFICER 1(3) INDORE ::: RESPONDENT APPELLANT BY SHRI PRANAY GOYAL RESPONDENT BY SHRI MOHD. JAVED DATE OF HEARING 19.7.2016 DATE OF PRONOUNCEMENT 2 7 .7.2016 O R D E R THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-22, NEW DELHI, HOLDING CONCURRENT JURISDICTION OF CIT(A), INDORE-2 DATED 16 .2.2016. RAJKUMAR JAIN ITA NO.322/IND/2016 2 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME DECLARING INCOME AT RS.3,42,260/- BY DERIVING INCOME FROM BUSINESS OF T RADING IN COTTON BALES. THE ASSESSEE AGREED TO PURCHASE AGRICULTURAL LAND FROM SHRI BAHADUR SINGH FOR A SUM OF RS.36,45,000/- OUT OF WHICH RS. 25 LACS WERE PAID. T HIS FACT HAS BEEN CONFIRMED BY SHRI ANTAR SINGH IN HIS STATEMENT RECORDED ON 26.12.2011 BEFORE THE ASSESSIN G OFFICER. THE ASSESSEE HAS PAID RS. 25 LACS ADVANCE TO SH RI BAHADUR SINGH WHICH WAS DULY REFLECTED IN THE BALANCE SHEET OF THE ASSESSEE. SINCE THE SUBSTANTIAL AMOUNT WAS PAID, THE POWER OF ATTORNEY IN FAVOUR OF THE ASSESSEE W AS EXECUTED. SINCE SHRI BAHADUR SINGH REFUSED TO TRANSFE R THE SAID PROPERTY BECAUSE OF SOME DISPUTE IN THE FAMIL Y, THUS THE AMOUNT ADVANCED GOT STUCK UP. THE ASSESSEE SOL D THIS LAND TO SHIVNARAYAN SOLANKI AND SMT. AHITA SOLANKI FOR A CONSIDERATION OF RS.25 LACS. THE ASSESSING OFFI CER HAS RAJKUMAR JAIN ITA NO.322/IND/2016 3 MADE THE ADDITION ON THE GROUND THAT THE ASSESSEE HAS EARNED CAPITAL GAIN ON SUCH TRANSFER AND THE ASSESSING OFFICER HAS APPLIED PROVISIONS OF SECTION 50C OF THE ACT. THE MATTER WAS CARRIED IN APPEAL AND THE LEARNED CIT(A) DISMISSED THE SAME. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS THE POWER OF ATTORNEY HOLDER. THERE FORE, HE CANNOT BE TREATED AS OWNER OF THE PROPERTY AND THE ADDI TION CANNOT BE MADE. THE CLA SUBMITTED THAT IF THE AMOUNT OF CAPITAL GAIN IS TAXABLE, SECTION 50C CANNOT BE APPLIED T O THE ASSESSEE. 4. ON THE OTHER HAND, THE LEARNED DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE SIDES. LOOKING TO THE FACTS AN D CIRCUMSTANCES OF THE CASE, THE ASSESSEE IS A POWER OF ATTORNEY HOLDER OF SHRI BAHADUR SINGH AND AS SHRI RAJKUMAR JAIN ITA NO.322/IND/2016 4 BAHADUR SINGH HAS NOT EXECUTED THE SALE DEED BUT THE ASSESSEE HAS EXECUTED THE SALE DEED IN THE NAME OF SH IV NARAYAN SOLANKI AND SMT. ANITA SOLANKI FOR A CONSIDERATION OF RS.25 LACS, I AM OF THE OPINION THAT IT IS A IN MY OPINION, IT IS A WELL SETTLED LAW THAT THE ASSES SEE IS A POWER OF ATTORNEY HOLDER IN CONSIDERATION OF RS.25 LAC S AND, THEREFORE, HE IS TREATED AS OWNER OF THE PROPERTY AND HE BECOMES ACTUAL OWNER. THEREFORE, THE ASSESSING OFFIC ER AND LEARNED CIT(A) ARE JUSTIFIED. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IN ALL THE DECISIONS THE FAC TS ARE THAT THE POWER OF ATTORNEY HOLDERS ARE WITHOUT ANY CONSIDERATION WHEREIN IN THIS CASE THE POWER OF ATTORN EY IS WITH THE CONSIDERATION. THEREFORE, ALL THE JUDGMENTS CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE ARE NOT APPLI CABLE TO THE FACTS OF THE CASE. DURING THE COURSE OF HEARING IT HAS COME TO THE NOTICE THAT THE ASSESSING OFFICER HAS NOT REFERRED THE MATTER TO THE DEPARTMENTAL VALUATION OFFICE R RAJKUMAR JAIN ITA NO.322/IND/2016 5 AS THE ASSESSEE HAS DISPUTED IT. THEREFORE, THE DECIS ION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CHANDANI BHOCHAR; 323 ITR 510 SHALL APPLY. AFTER CONSIDERING THE FACTS OF THE CASE, I RESTORE THE ISSU E TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO REFER THE MATTER TO THE DVO FOR VALUATION PURPOSES AND DECIDE THE SAME ACCORDINGLY. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON 27 TH JULY, 2016 SD/- ( D.T. GARASIA) JUDI CIAL MEMBER 27 TH JULY, 2016 DN/- RAJKUMAR JAIN ITA NO.322/IND/2016 6