SMT. KUSUM LATA JAIN, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 350/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2744 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 14-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANOOP SINGH ACIT
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition
• Section: 50C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 350/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 KUSUM LATA JAIN 91, MAUJI COLONY, MALVIYA NAGAR, JAIPUR. CUKE VS. THE ITO, WARD 6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABXPJ 6534 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPON DENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI AKHILESH KUMAR JAIN (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI ANOOP SINGH (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 14/02/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 26/02/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 20.12.2017 OF LD. CIT (A), JAIPUR FOR A.Y. 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND O N FACTS IN NOT GRANTING DEDUCTION OF RS. 10000/- FROM SALE CONSIDE RATION OF CAPITAL ASSET BEING EXPENSES INCURRED IN THE COURSE OF TRANSFER OF CAPITAL ASSET IN SPITE OF THE FACT THAT RELEVANT DO CUMENTARY EVIDENCE WAS PRODUCED. 2. THE LEARNED CIT(APPEALS) HAS FURTHER ERRED IN LA W AND ON FACTS IN NOT ALLOWING BENEFIT OF INDEXATION FROM THE FINA NCIAL YEAR 1995- ITA NO. 350/JP/2018 KUSUM LATA JAIN VS. ITO 2 96 IN WHICH PAYMENT OF RS. 198900/- WAS MADE TOWARD S COST OF ACQUISITION OF CAPITAL ASSET SOLD. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TI ME OF HEARING OF APPEAL. 2. GROUND NO. 1 IS REGARDING NOT ALLOWING DEDUCTION OF RS. 10,000/- ON ACCOUNT OF BROKERAGE CHARGES AT THE TIME OF SALE OF THE CAPITAL ASSET. THE ASSESSEE IS AN INDIVIDUAL AND SINGLE LADY SOLD IMMOVABLE PROPERTY AT SALE CONSIDERATION OF RS. 2,55,500/- WHICH WAS V ALUED AT RS. 5,00,000/- BY THE STAMP DUTY AUTHORITY. ACCORDINGLY , THE AO ADOPTED THE FULL VALUE CONSIDERATION AS PER THE PROVISIONS OF SECTION 50C OF THE ACT AT RS. 5,00,000/-. THE AO AFTER ALLOWING DEDUCT ION IN THE INDEX COST OF ACQUISITION, CONSTRUCTION, REGULARIZATION CHARGE S, REGISTRATION CHARGES AND SOCIETY MEMBERSHIP CHARGES TOTAL AMOUNTING TO R S. 4,50,596/- COMPUTED THE LONG TERM CAPITAL GAIN AT RS. 49,404/- . THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT( A) AND CLAIMED THAT THE BROKERAGE CHARGES OF RS. 10,000/- WAS NOT ALLOW ED BY THE AO, WHILE COMPUTING THE LONG TERM CAPITAL GAIN. THE LD. CIT(A ) HAS REJECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT NO DETAILS HAVE BEEN FURNISHED. 3. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT AT THE TIME OF HEARING BEFORE THE LD. CIT(A) THE ASSESSEE WAS ASKED TO SUBMIT ITA NO. 350/JP/2018 KUSUM LATA JAIN VS. ITO 3 THE DOCUMENTS IN RESPECT OF THE BROKERAGE CHARGES A ND ACCORDINGLY, THE ASSESSEE VIDE LETTER DATED 19.12.2017 SUBMITTED THE RECEIPT OF BROKERAGE CHARGES. HOWEVER, THE LD. CIT(A) WHILE PA SSING THE IMPUGNED ORDER HAS NOT CONSIDERED THE SAID DOCUMENTARY EVIDE NCE IN SUPPORT OF PAYMENT OF RS. 10,000/- AS BROKERAGE CHARGES. THUS, THE LD. AR HAS SUBMITTED THAT THE EVIDENCE FILED BY THE ASSESSEE B EFORE THE LD. CIT(A) MAY BE CONSIDERED IN SUPPORT OF THE CLAIM. 4. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE ASSESSEE DID NOT FILE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM OF BROKERAGE CHARGES EITHER BEFORE THE AO OR BEFORE TH E LD. CIT(A). THE ALLEGED LETTER DATED 19.12.2017 DOES NOT FIND PLACE IN THE IMPUGNED ORDER OF THE LD. CIT(A). HE HAS RELIED UPON THE ORD ERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE LD. CIT(A) WHILE PASSING TH E IMPUGNED ORDER DATED 20.12.2017 HAS REJECTED THIS CLAIM IN PARA 3. 3 REPRODUCED AS UNDER:- 3.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSE SSMENT ORDER AND THE SUBMISSION OF THE APPELLANT. 2(A): THE FIRS T GROUND RELATES TO NON-ALLOWING OF TRANSFER EXPENSE OF RS. 10,000/- BEING BROKERAGE AT 2% CLAIMED TO BE PAID. IT IS SEEN THAT NO DETAILS FOR ITA NO. 350/JP/2018 KUSUM LATA JAIN VS. ITO 4 THIS EXPENDITURE HAVE BEEN FURNISHED, THE SAME CANN OT BE ALLOWED. GROUND OF APPEAL IS DISMISSED. THUS, THE LD. CIT(A) HAS DISMISSED THE GROUND FOR W ANT OF NECESSARY DETAILS FOR THIS EXPENDITURE OF BROKERAGE CHARGES. THE ASSESSEE FILED A COPY OF LETTER DATED 19.12.2017 ALONG WITH RECEIPT DATED 13.02.2009 ISSUED BY THE BROKER REGARDING THE PAYMENT OF RS. 10,000/- AS BROKERAGE CHARGES IN RESPECT OF THE SALE TRANSACTIO N OF THE PROPERTY SOLD BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION . WITHOUT GOING INTO THE CONTROVERSY WHETHER THE SAID RECEIPT WAS FILED BEFORE THE LD. CIT(A) ON 19.12.2017 A DAY BEFORE THE IMPUGNED ORDER WAS PASSED WE NOTE THAT AS PER THE SAID RECEIPT THE BROKER STATED TO H AVE RECEIVED BROKERAGE CHARGES OF RS. 10,000/- @ 2% OF THE SALE CONSIDERATION OF RS. 5,00,000/-. HOWEVER, THE ACTUAL SALE CONSIDERAT ION AS PER SALE DOCUMENT AS WELL AS CLAIM OF THE ASSESSEE IS RS. 2, 55,500/- THEREFORE, THE ALLEGED RECEIPT OF BROKER IS CONTRADICTORY TO T HE ADMITTED FACTS AND THEREFORE CANNOT BE CONSIDERED AS AN ADMISSIBLE EVI DENCE IN SUPPORT OF THE CLAIM. HENCE, WE DO NOT FIND ANY REASON TO INTE RFERE WITH THE ORDERS OF THE AUTHORITIES BELOW. 6. GROUND NO. 2 IS REGARDING THE DENIAL OF INDEXATI ON COST FROM THE FINANCIAL YEAR 1995-96. THE ASSESSEE HAS CLAIMED TH AT IT PURCHASED THE ITA NO. 350/JP/2018 KUSUM LATA JAIN VS. ITO 5 PROPERTY IN QUESTION VIDE AGREEMENT/RECEIPT DATED 1 5.03.1996 THOUGH THE SAID PLOT WAS TRANSFERRED IN THE NAME OF THE AS SESSEE BY THE SOCIETY IN THE YEAR 1997. THEREFORE, THE AO ALLOWED THE BEN EFIT OF INDEXATION FROM THE FINANCIAL 1997-98 AND NOT FROM THE FINANCI AL YEAR 1996-97. ON APPEAL, THE LD. CIT(A) HAS CONCURRED WITH THE VIEW OF THE AO WHILE GRANTING THE BENEFIT OF INDEXATION FROM THE YEAR IN WHICH THE PROPERTY WAS TRANSFERRED IN THE NAME OF THE ASSESSEE BY THE SOCIETY. 7. BEFORE US, THE LD. AR HAS REFERRED TO THE AGREEM ENT/RECEIPT DATED 15.03.1996 AND SUBMITTED THAT THE ASSESSEE MADE THE PAYMENT ON THE SAID DATE OF AGREEMENT AND THEREFORE, THE BENEFIT O F INDEXATION SHALL BE ALLOWED FROM THE DATE OF PAYMENT AND NOT FROM THE D ATE WHEN THE PLOT IN QUESTION WAS TRANSFERRED BY THE SOCIETY IN ASSES SEES NAME. ON THE OTHER HAND, THE LD. DR HAS RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE PURCH ASE THE PROPERTY IN QUESTION BEARING PLOT NO. 151, RAVINDRA NAGAR, JAGA TPUR, JAIPUR MEASURING 200 YARD FROM ONE SHRI KAILASH CHANDRA SH ARMA VIDE AGREEMENT-CUM-RECEIPT DATED 15.03.1996. PURSUANT TO THE SAID PURCHASE DOCUMENTS THE COOPERATIVE SOCIETY SUBSEQUE NTLY TRANSFERRED ITA NO. 350/JP/2018 KUSUM LATA JAIN VS. ITO 6 THE SAID PLOT IN THE NAME OF THE ASSESSEE IN THE YE AR 1997. THEREFORE, FOR THE PURPOSE OF ALLOWING THE INDEX COST OF ACQUI SITION THE DATE OF PURCHASE AND ACTUAL PAYMENT OF THE PURCHASE CONSIDE RATION HAS TO BE TAKEN INTO CONSIDERATION. THE AO NOT DISPUTED THE P AYMENT MADE BY THE ASSESSEE FOR PURCHASE OF THE PLOT OF LAND IN QU ESTION ON 15.03.1996, THEREFORE, THE BENEFIT OF INDEXATION IN RESPECT OF THE COST OF ACQUISITION HAS TO BE ALLOWED FROM THE DATE OF PURCHASE AGREEME NT/RECEIPT AS WELL AS PAYMENT MADE BY THE ASSESSEE AND NOT FROM THE DA TE WHEN SUBSEQUENTLY, THE PLOT WAS TRANSFERRED BY THE COOPE RATIVE SOCIETY IN THE NAME OF THE ASSESSEE. IT IS PERTINENT TO NOTE THAT IN THE TRANSFER IN RECORD OF THE COOPERATIVE SOCIETY ITSELF DOES NOT G IVEN THE OWNERSHIP TITLE IN THE ABSENCE OF THE PURCHASE DOCUMENTS FROM THE ANOTHER MEMBER. HENCE, WE ALLOW THE CLAIM OF THE ASSESSEE A N INDEXATION COST OF ACQUISITION FROM 15.03.1996. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/02/2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26/02/2019. ITA NO. 350/JP/2018 KUSUM LATA JAIN VS. ITO 7 * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- KUSUM LATA JAIN, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 6(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 350/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR