Sh. Sheo Ram, Jagadhari V. ITO, Yamunanagar

ITA 364/CHANDI/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4882 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 23-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHISH ABROL
• Keywords: Capital asset; Fair market value; Condonation of delay
• Section: 54B; 54F; 148; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH B, CHANDIGARH BEFORE MS.DIVA SINGH, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.364/CHD/2017 (ASSESSMENT YEAR :2007-08) SH. SHEO RAM, VS. THE INCOME TAX OFFICER, VILLAGE JARODA, WARD 3, JAGADHARI. YAMUNANAGAR. PAN: FHCPS9095D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ROHIT GOEL RESPONDENT BY : SHRI ASHISH ABROL, DR DATE OF HEARING : 09.01.2018 DATE OF PRONOUNCEMENT : 09.04.2018 ORDER PER ANNAPURNA GUPTA, A.M. : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEAL S), PANCHKULA (HEREINAFTER REFERRED TO AS (LD.CIT(APPE ALS)) DATED 14.9.2015. 2. AT THE OUTSET IT MAY BE POINTED OUT THAT THERE W AS DELAY OF 457 DAYS IN FILING THE APPEAL BEFORE US. AN APPLICATION REQUESTING CONDONATION OF DELAY WAS FIL ED ON 23.3.2017. REFERRING TO THE SAME, THE LD. COUNSEL F OR ASSESSEE STATED THAT THE DELAY WAS ON ACCOUNT OF NO N RECEIPT OF THE ORIGINAL ORDER PASSED BY THE CIT(APP EALS) DATED 14.9.2015 AND THAT THE SAME WAS RECEIVED SUBSEQUENTLY ONLY ON 5.12.2016 AFTER A LETTER WAS F ILED BY THE ASSESSEE TO THE CIT(APPEALS) DATED 28.10.2016 A SKING FOR A COPY OF THE ORDER, IF ANY, PASSED IN THE CASE . IT WAS 2 POINTED OUT THAT ON RECEIPT OF THIS APPLICATION BY THE ASSESSEE, THE ADMINISTRATIVE OFFICER OF THE CIT(APP EALS) VIDE OFFICE LETTER DATED 5.12.2016 ,SENT A COPY OF THE O RDER TO THE ASSESSEE AFTER WHICH THE APPEAL WAS FILED WITHIN ST IPULATED TIME. THE LD. COUNSEL FOR ASSESSEE, THEREFORE, STA TED THAT THE DELAY IN FILING THE APPEAL COULD NOT BE ATTRIBU TED TO ANY FAULT ON THE PART OF THE ASSESSEE BUT DUE TO THE LA TE RECEIPT OF THE ORDER OF THE CIT(APPEALS). 3. THE LD. DR, ON THE OTHER HAND OPPOSED THE CONDONATION OF DELAY APPLICATION STATING THAT THE O RDER WAS DISPATCHED FROM THE OFFICE OF THE CIT(APPEALS) BY S PEED POST ON 17.9.2015 AND HAD NOT BEEN RECEIVED BACK. THE L D. DR DREW OUR ATTENTION TO THE COMMUNICATION RECEIVED FR OM THE OFFICE OF THE CIT(APPEALS), PANCHKULA IN THIS REGAR D, ON BEING ASKED BY THE REGISTRY OF THE I.T.A.T. TO INTI MATE THE EXACT DATE ON WHICH THE ORDER WAS SERVED ON THE ASS ESSEE. THE LD. DR ALSO DREW OUR ATTENTION TO THE COPY OF T HE SPEED POST RECEIVED MENTIONING THE FACT OF THE DISPATCH O F THE ORDER ON THE AFORESTATED DATE TO THE ASSESSEE WHICH WAS ENCLOSED ALONGWITH THE REPLY FILED BY THE OFFICE OF THE CIT(APPEALS), IN RESPONSE TO THE REQUEST OF THE REG ISTRY IN THIS REGARD. 4. IN RESPONSE TO THE SAME, THE LD. COUNSEL FOR ASS ESSEE REITERATED THAT THE COPY OF THE ORIGINAL ORDER WHIC H WAS CLAIMED TO BE DISPATCHED ON 17.9.2015 WAS NEVER REC EIVED BY THE ASSESSEE AND WAS RECEIVED ONLY ON A REQUEST MADE TO THE CIT(APPEALS) FOR PROVIDING A COPY VIDE ASSESSEE S LETTER 3 DATED 28.10.2016. IT WAS ALSO STATED THAT A LETTER WAS ALSO WRITTEN UNDER THE RTI ACT TO THE CENTRAL PUBLIC INF ORMATION OFFICER AND SUPERINTENDENT, POST OFFICE, AMBALA FOR CONFIRMING THE DELIVERY OF POST DATED 21.9.2015, IN RESPONSE TO WHICH THE ASSESSEE WAS INFORMED THAT RECORDS REL ATING TO BOOKING AND DELIVERY OF SPEED POST WERE PRESERVED O NLY FOR A PERIOD OF SIX MONTHS AND, THEREFORE, NO RECORD OF THE DELIVERY OF THE CIT(APPEALS)S ORDER TO THE ASSESSE E WAS AVAILABLE WITH THE DEPARTMENT OF POST OFFICE. ALL THE ABOVE FACTS WERE STATED BY THE ASSESSEE ON OATH IN THE FO RM OF AN AFFIDAVIT WHICH WAS PRODUCED BEFORE US. THE LD. CO UNSEL FOR ASSESSEE FURTHER REFERRING TO THE APPLICATION FOR C ONDONATION OF DELAY POINTED OUT THAT THE ASSESSEE WAS AN ILLIT ERATE PERSON HAVING ONLY AGRICULTURAL INCOME AS HIS SOURC E OF INCOME AND WAS, THEREFORE, NOT REQUIRED TO FILE HIS RETURN OF INCOME. IT WAS FURTHER POINTED OUT THAT IN THE IMPU GNED ASSESSMENT YEAR NO RETURN WAS ORIGINALLY FILED AND IT WAS ONLY WHEN NOTICE U/S 148 WAS RECEIVED THAT THE RETU RN WAS FILED AND WHEN THE ASSESSMENT WAS FRAMED, MAKING AD DITION TO THE INCOME OF THE ASSESSEE, THE SERVICE OF A PRO FESSIONAL WERE ENGAGED FOR FILING APPEAL AGAINST THE SAID ORD ER. THE LD. COUNSEL FOR ASSESSEE REFERRING TO THE APPLICATI ON FOR CONDONATION OF DELAY STATED THAT THE ASSESSEE WAS N EVER AWARE OF THE INTRICACIES OF INCOME TAX MATTERS AND DID NOT FOLLOW UP THE STATUS OF APPEAL PROCEEDINGS FROM THE COUNSEL AND THAT IT WAS ONLY WHEN A PHONE CALL WAS RECEIVED FROM THE INCOME TAX OFFICE FOR DEPOSITING THE DEMAND THE N THE ASSESSEE CONTACTED HIS COUNSEL IN THE MONTH OF NOVE MBER, 4 2016 ENQUIRING THE STATUS OF APPEAL. THE LD. COUNSEL FOR A SSESSEE STATED THAT IN VIEW OF THE BACKGROUND OF THE ASSESSEE, THE DELAY BE CONDONED . 5. WE HAVE HEARD BOTH THE PARTIES AND FIND THAT THE ASS ESSEE IS AN ILLITERATE AGRICULTURIST WHO HAS NEVER FILED HIS RETURN IN THE PAST. WE FIND THAT THESE STATEMENTS WERE MADE ON AFFIDAVIT BY THE AS SESSEE AND WERE NEVER REBUTTED BY THE REVENUE. WE FURTHER FIND THAT IN THE PRESENT PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, NO ADVANTA GE CAN BE DRAWN BY THE ASSESSEE BY FILING THE APPEAL LATE, NOR ANY DISADVA NTAGE IS CAUSED TO THE REVENUE IF THE DELAY IS CONDONED. IN FACT THERE IS NO VESTED RIGHT WITH THE REVENUE THAT ON ACCOUNT OF LATE FILING OF APPEAL BY THE ASSESSEE THE REVENUE IS OUSTED FROM ITS SETTLED POSITION. THEREFORE, BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, WE DEEM IT APPROPR IATE TO CONDONE THE DELAY. THIS ORDER WAS PRONOUNCED IN OPEN COURT IN T HE PRESENCE OF BOTH THE PARTIES AND HEARING OF THE APPEAL WAS THEREAFTE R DIRECTED TO BE PROCEEDED WITH. 6. WE SHALL NOW PROCEED TO ADJUDICATE THE APPEAL BEF ORE US. BRIEF BACKGROUND OF THE CASE IS THAT THE ASSESSING OFFIC ER HAD INFORMATION ABOUT SALE OF HALF SHARE OF LAND BY THE ASSESSE E IN VILLAGE JARODA, YAMUNANAGAR FOR RS.7,51,95,313/- TO ONE M/S JEWEL PROJECTS PVT. LTD., NEW DELHI ON 20.3.2007. SINCE THE LAND WAS A CA PITAL ASSET, FALLING WITHIN 8 KM. OF THE MUNICIPAL LIMIT, THE CAPITAL GAIN ON SUCH SALE WAS TAXABLE AND, THEREFORE, THE ASSESSING OFFICER I SSUED NOTICE U/S 148 OF THE ACT FOR TAXING THE CAPITAL GAIN EARNED BY THE A SSESSEE ON THE IMPUGNED TRANSACTION. IN RESPONSE TO THE SAME, THE R ETURN WAS FILED BY THE ASSESSEE DECLARING LONG TERM CAPITAL G AINS OF RS.41,17,969/- ON ACCOUNT OF THE SAID TRANSACTION. DURING ASSESSMENT PROCEEDINGS THEREAFTER THE ASSESSING OFF ICER CONFRONTED THE ASSESSEE WITH THE FACT THAT COMPLETE CAPITAL 5 GAIN ON ACCOUNT OF THE AFORESAID TRANSACTION HAD NO T BEEN DISCLOSED BY THE ASSESSEE BUT IN FACT CAPITAL GAIN PERTAINING TO THE AMOUNT RECEIVED BY THE ASSESSEE ON ACCOUNT O F THE SAID TRANSACTION IN THE IMPUGNED YEAR IN CASH AMOUN TING TO RS.1,50,000 AND VIDE CHEQUE DATED 15.3.2017 AMOUNTI NG TO RS.32,67,969/- HAD BEEN DISCLOSED. THE ASSESSING O FFICER NOTED THAT THE REMAINING AMOUNT OF RS.3,41,79,688/- RECEIVED VIDE UNDATED CHEQUE NO.009611 AND REALISED BY THE ASSESSEE ON 14.8.2008 HAD NOT BEEN CONSIDERED F OR THE PURPOSE OF RETURNING THE CAPITAL GAIN, WHICH IN FAC T HAD BEEN OFFERED TO TAX IN THE NEXT YEAR I.E. ASSESSMEN T YEAR 2009-10. DUE REPLY WAS FILED BY THE ASSESSEE , AFT ER CONSIDERING WHICH THE ASSESSING OFFICER HELD THAT I N THE FACTS OF THE PRESENT CASE WHEREIN THE SALE CONSIDER ATION WAS PARTLY PAID AND PARTLY PROMISED, THE IMMOVABLE PROP ERTY IS TO BE DEEMED TO HAVE BEEN TRANSFERRED ON EXECUTION AND REGISTRATION OF SALE DEED IF THE POSSESSION HAS BEE N GIVEN TO THE BUYER AS PER THE PROVISIONS OF SECTION 54 OF TH E TRANSFER OF PROPERTY ACT. THE ASSESSING OFFICER NOTED THAT T HE ASSESSEE HAD DEPOSED BEFORE THE REGISTERING AUTHORI TY THAT THE POSSESSION OF LAND HAD BEEN HANDED OVER TO THE VENDEE. HE, THEREFORE, HELD THAT THE CLAIM OF THE ASSESSEE THAT THERE WOULD BE TWO DIFFERENT DATES FOR EFFECTING THE TRAN SFER IN THE PRESENT CASE, WAS NOT TENABLE AND ACCORDINGLY, WHOL E OF THE SALE CONSIDERATION OF RS.3,68,96,010/- (ASSESSEES SHARE) WAS HELD TO BE TAXABLE IN THE IMPUGNED ASSESSMENT Y EAR. 6 7. AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(APPEALS), WHO UPHELD THE ORDER OF THE AS SESSING OFFICER ,DISMISSING THE ASSESSEES APPEAL. 8. AGGRIEVED BY THE SAME, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US RAISING FOLLOWING EFFECTIVE GROUND S: 1. THE LEARNED CIT (APPEALS) HAS ERRED IN TAW AND FAC TS IN CONFIRMING AN ADDITION OF RS. 3,68,96,060/-MADE BY AO AS LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURE LAND MEASURING 109 KANAL 7.5 MARLA FOR A CONSIDERATION OF RS. 3,75,97,657/- BY HOLDING THE TRANSFER OF LAND IN THE YEAR UNDER CONSIDERATION DESPITE THE FACT THAT ONLY 10% OF THE SALE CONSIDERATION WAS RECEIVED DURING THE YEAR AND BALANCE 90% CONSIDERATION WAS RECEIVED ON 14.08.2008 I.E. AY 2009-10. 2. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACTS IN NOT ALLOWING THE BENEFIT OF INVESTMENTS IN NEW AGRICULTURE LAND AMOUNTING RS. 3,08,96,330/- U/S 54B & CONSTRUCTION OF HOUSE AMOUNTING RS. 43,00,000/- U/S 54 F INVESTED SUBSEQUENT TO THE RECEIPT OF MONEY AGAINST SALE OF AGRICULTURE LAND. 3. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FA CTS IN ADOPTING INDEXED COST OF LAND VALUED ON THE BASI S OF LAND VALUE ON 1-4-1981 AT RS. 7,01,597/-. 4. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACES IN CONFIRMING THE AO ACTION BY NOT ALLOWING THE BENEFI T OF IMPROVEMENT COST OF LAND. 5. THAT AUTHORITIES BELOW HAS ERRED IN LAW AND FACT S IN REOPENING THE ASSESSMENT U/S 148. 9. NO ARGUMENTS VIS-A-VIS GROUND NO.5 WERE MADE BE FORE US. THE SAME IS THEREFORE DISMISSED. 10. FURTHER, CHALLENGING THE ACTION OF THE CIT(APPE ALS) IN CONFIRMING THE ADDITION OF RS.3,68,96,060/- MADE BY THE ASSESSING OFFICER AS LONG TERM CAPITAL GAINS EARNED BY THE ASSESSEE DURING THE IMPUGNED YEAR ON ACCOUNT OF SAL E OF LAND, IN GROUND NO.1, THE LD. COUNSEL FOR ASSESSEE DURING THE COURSE OF HEARING BEFORE US STATED THAT THE ISS UE WAS 7 SQUARELY COVERED BY THE JUDGMENT OF THE CHANDIGARH BENCH OF THE I.T.A.T. IN GROUP OF CASES WITH THE LEAD CA SE BEING SHRI RAJIV KUMAR VS. ITO IN ITA NO.17/CHD/2016 DATE D 29.6.2016 AND WHICH DECISION WAS SUBSEQUENTLY FOLLO WED IN THE CASE OF SH.PURSHOTTAM KUMAR, SMT.PAYAL KUMARI A ND SH.PARVEEN KUMAR VS. ITO, WARD ,1,YAMUNANAGAR IN IT A NO 968 TO 971/CHD/2014 & 1185/CHD/2012 DATED 17-08- 16.COPIES OF BOTH THE ORDERS WERE PLACED BEFORE US. DRAWING OUR ATTENTION TO THE ORDER PASSED IN THE CA SE OF RAJIV KUMAR (SUPRA), LD.COUNSEL FOR THE ASSESSEE ST ATED THAT IN THE SAID CASE ALSO THE FACTS WERE IDENTICAL WITH THAT OF THE ASSESSEE WHEREIN THE LAND WAS ACQUIRED BY BU ILDERS MAKING ONLY PART PAYMENT OF AROUND 10% OF THE ENTIR E CONSIDERATION AND PROMISING TO PAY THE BALANCE VIDE UNDATED CHEQUE AND GETTING THE SALE DEED REGISTERED IN THEIR FAVOUR. IT WAS POINTED OUT THAT IN THE SAID CASE I T WAS BROUGHT TO THE NOTICE OF THE BENCH THAT THE BUILDER S HAD TRIED TO DUPE INNOCENT AGRICULTURISTS IN THIS MANNE R BY ACQUIRING THEIR LANDS BY MAKING MEAGER PAYMENT OF T HE AGGREGATE SALE CONSIDERATION, PROMISING TO PAY THE BALANCE IN FUTURE, WHICH IN FACT WAS NEVER PAID TO THE AGRI CULTURISTS. IT WAS POINTED OUT THAT THE AGRICULTURISTS ON BEING SO DUPED HAD FILED CASE BEFORE THE HON'BLE PUNJAB & HARYANA HIGH COURT WHO HAD ORDERED AN INVESTIGATION IN THE MATTE R AND AFTER CONSIDERING THE REPORT OF THE INVESTIGATOR HA D DIRECTED THE BUILDERS TO MAKE PAYMENT OF THE BALANCE AMOUNT TO THE AGRICULTURISTS, WHICH WAS PAID AND THUS REALIZED BY THE ASSESSEE ONLY IN THE SUCCEEDING YEAR. IT WAS POINT ED OUT TO 8 THE BENCH IN THE SAID CASE THAT IN THE YEAR WHEN T HE SALE DEED WAS REGISTERED THE INTENTION OF THE BUYERS WAS CLEARLY NOT TO MAKE PAYMENT OF THE ENTIRE AGREED AMOUNT. IT WAS ALSO POINTED OUT THAT IT WAS AGREED TO HANDOVER THE POSSESSION ONLY WHEN THE COMPLETE PAYMENT WAS MADE TO THE SELLERS ON FAILURE OF WHICH THE SALE DEED WOULD BE CANCELLED. THE LD. COUNSEL FOR ASSESSEE POINTED OUT FROM THE ORDER THAT TAKING NOTE OF THESE AVERMENTS MADE BEFO RE IT AND CONSIDERING THE EVIDENCES PLACED BEFORE IT SUBSTANTIATING THE STATED FACTS, THE I.T.A.T. HELD THAT THE TRANSFER COULD NOT BE SAID TO HAVE TAKEN PLACE IN T HE IMPUGNED YEAR BUT ONLY WHEN THE FINAL PAYMENT WAS RECEIVED BY THE ASSESSEE. IT WAS POINTED OUT THAT THE I.T.A.T. ON THIS BASIS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER OF THE ENTIRE CAPITAL GAINS IN TH E YEAR OF REGISTRATION OF THE SALE DEED. THE LD. COUNSEL FOR ASSESSEE STATED THAT THE FACTS IN THE PRESENT CASE WERE IDEN TICAL TO THAT IN THE CASE OF RAJIV KUMAR & OTHERS (SUPRA), PURSHOTTAM KUMAR & TEJINDER KUMAR AND A CHART POIN TING OUT IDENTICAL FACTS WAS PLACED BEFORE US AS UNDER: NO. PARTICULARS FACTS OF RAJIV KUMAR ITA NO. 17/CHD/2016 FACTS OF TAJINDER KUMAR ITA NO.19/CHD/ 2016 FACTS OF PURSHOTAM KUMAR ITA NO.968 & 969/CHD/20 14 FACTS OF SHEO RAM 1. DATE OF REGISTRATION OF SALE DEED 20-3-2007 20-3-2007 20-3-2007 20-3-2007 2. TOTAL VALUE OF SALE CONSIDERATION 5,50,00,000 5,44,15,625 2,95,28,125 3,75,97,656 3. DATE OF RECEIPT OF ADVANCE PAYMENT 25-3-2007 15-3-2007 20-3-2007 15-3-07 4. AMOUNT OF RECEIPT OF ADVANCE PAYMENT 50,00,000 4946875 2693375 32,67,969 6. DATE OF RECEIPT OF FINAL PAYMENT 16-6-2008 15-6-2008 16-6-2008 14-8-2008 7 AMOUNT OF FINAL 5,00,00,000 4,94,68,750 2,68,43,750 3,41,79,688 9 PAYMENT 8 CLAUSE IN SALE DEED THAT IN CASE OF CHEQUE NOT ENCASHED SALE DEED WILL BE CANCELLED YES YES YES YES 9 WRIT PETITION FILED BEFORE PUNJAB & HARYANA HIGH COURT NO BUT PETITION FILED BY TAJINDER KUMAR IN CRIMINAL MISC. NO. 36372-M DECIDED ON 31-5-07 BY P&H HC MATTER WAS REFERRED TO SP YNR AND FURTHER IN CWP 1908 OF 2009 A SIT WAS FORMED UNDER ADGP CRIME BRANCH TO COVER ALL FARMERS WITH A DIRECTION TO THE COLLECTOR BY COURT TO PREVENT THIRD PARTY RIGHTS ON LAND OR DISPOSSESSION OF FARMERS TO WHOM FULL SALE CONSIDERATION HAS NOT BEEN PAID. YES NO BUT PETITION FILED BY TAJINDER KUMAR IN CRIMINAL MISC. NO. 36372-M DECIDED ON 31-5-07 BY P&H HC MATTER WAS REFERRED TO SP YNR AND FURTHER IN CWP 1908 OF 2009 A SIT WAS FORMED UNDER ADGP CRIME BRANCH TO COVER ALL FARMERS WITH A DIRECTION TO THE FARMERS WITH A DIRECTION TO THE COLLECTOR BY COURT TO PREVENT THIRD PARTY RIGHTS ON LAND OR DISPOSSESSION OF FARMERS TO WHOM FULL SALE CONSIDERATION HAS NOT BEEN PAID. NO BUT PETITION FILED BY TAJINDER KUMAR IN CRIMINAL MISC. NO. 36372-M DECIDED ON 31-5- 07 BY P&H HC MATTER WAS REFERRED TO SP YNR AND FURTHER IN CWP 1908 OF 2009 A SIT WAS FORMED UNDER ADGP CRIME BRANCH TO COVER ALL FARMERS WITH A DIRECTION TO THE COLLECTOR BY COURT TO PREVENT THIRD PARTY RIGHTS ON LAND OR DISPOSSESSION OF FARMERS TO WHOM FULL SALE CONSIDERATION HAS NOT BEEN PAID. 10 DATE OF MUTATION OF LAND IN FAVOUR OF BUYER 31-3-2007 31-3-2017 31-3-2017 31-3-2017 11 DATE OF HANDING OVER OF POSSESSION TO BUYER COMPANY AS EVIDENT FROM P&H HC ORDER IN CWP 1908 OF 2009 DATED 5-2-2009 16-6-2008 15-6-2008 16-6-2008 14-8-2008 11. THE LD. COUNSEL FOR ASSESSEE, THEREFORE, STATED THAT THE ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE IN VIEW OF THE AFORESAID JUDGMENT OF THE I.T.A.T IN THE CASE OF RA JIV KUMAR(SUPRA) & PURSHOTTAM KUMAR(SUPRA). 12. THE LD. DR PER CONTRA, HOWEVER, POINTED OUT THE FOLLOWING DISTINGUISHING FACTS IN THE PRESENT CASE WITH THAT IN THE CASE OF RAJIV KUMAR (SUPRA): 10 1) IN THE CASE OF RAJIV KUMAR (SUPRA), ON THE DAY T HE SALE DEED WAS REGISTERED I.E. 20.3.2007, THE BUYERS HAD EXECUTED AN AFFIDAVIT WHICH WAS DULY ATTESTED BY TH E EXECUTIVE MAGISTRATE, JAGADHRI IN WHICH THE BUYERS HAD SPECIFICALLY AFFIRMED THAT THE SALE DEED OF THE LAND HAD BEEN REGISTERED BUT THE SPOT POSSESSION WOULD B E GIVEN AT THE TIME WHEN THE COMPANY WOULD BE MAKING THE TOTAL PAYMENT OF THE POST DATED CHEQUE OF THE ASSESSEE. THAT IN THE CASE OF ASSESSEE THERE IS NO SUCH FACT ON RECORD BUT IN FACT AS PER THE FACTS BR OUGHT OUT IN THE ASSESSMENT ORDER AND THE CIT(APPEALS)S ORDER, THE POSSESSION OF THE LAND HAD ALSO BEEN HAN DED OVER TO THE BUYERS AS PER THE SALE DEED EXECUTED. 2) THAT NO EVIDENCE HAD BEEN BROUGHT ON RECORD BY THE ASSESSEE THAT THE ASSESSEES LAND WAS ALSO COVE RED IN THE CIVIL CASE WHICH WAS FILED BEFORE THE HONBL E HIGH COURT WHEREIN DIRECTION WAS GIVEN BY THE HONB LE HIGH COURT, AFTER CONSTITUTING AN SIT ON THE ISSUE, TO THE BUYERS TO MAKE PAYMENT OF THE BALANCE AMOUNT TO THE SELLERS OF THE LAND. 13. AT THIS JUNCTURE, THE LD. COUNSEL FOR ASSESSEE ADMITTED THAT FACTUAL FINDING WITH REGARD TO THE ASSESSEES L AND BEING INCLUDED AND COVERED IN THE DISPUTED LANDS BEFORE THE HIGH COURT, WERE NOT AVAILABLE ON RECORD BUT AT THE SAME TIME, CONTENDED THAT THE SAME COULD BE ESTABLISHED BY THE ASSESSEE BY PLACING RELEVANT MATERIAL AND EVIDENCE ON RECORD SUBJECT TO VERIFICATION BY THE DEPARTMENT OF THE 11 SAME. THE LD. COUNSEL FOR ASSESSEE REQUESTED, THERE FORE, THAT THE ISSUE BE RESTORED TO THE ASSESSING OFFICER SO AS TO ENABLE THE ASSESSEE TO ESTABLISH THE IDENTITY OF TH E FACTS OF THE PRESENT CASE WITH THAT IN THE CASE OF RAJIV KUM AR (SUPRA). AS FOR THE AFFIDAVIT REGARDING POSTPONEME NT OF HANDING OVER OF POSSESSION OF LAND BY THE SELLERS T O THE BUYERS ONLY ON RECEIPT OF COMPLETE CONSIDERATION, T HE LD. COUNSEL FOR ASSESSEE STATED THAT NO SUCH AFFIDAVIT WAS FILED IN THE CASE OF PARSHOTAM KUMAR WHICH WAS ALSO AN ID ENTICAL CASE DECIDED ON THE LINES OF RAJIV KUMAR(SUPRA) FOL LOWING THE SAID DECISION. 14. THE LD. DR DID NOT OBJECT TO THE REQUEST OF THE LD.COUNSEL FOR THE ASSESSEE. 15. CONSIDERING THE ABOVE, IN THE INTEREST OF JUSTI CE, WE RESTORE THE ISSUE BACK TO THE ASSESSING OFFICER FOR THE LIMITED PURPOSE OF ENABLING THE ASSESSEE TO ESTABLI SH THE IDENTITY OF THE FACTS OF THE PRESENT CASE WITH THAT IN THE CASE OF RAJIV KUMAR(SUPRA) AND PURSHOTAM KUMAR (SUP RA) AND DIRECT THE ASSESSING OFFICER TO VERIFY THE CLAI M OF THE ASSESSEE IN THIS REGARD AND THEREAFTER PASS AN ORDE R IN ACCORDANCE WITH LAW. THIS GROUND OF APPEAL IS, THE REFORE, ALLOWED FOR STATISTICAL PURPOSES. 16. IN VIEW OF THE RESTORATION OF GROUND OF CHARGIN G OF ENTIRE CAPITAL GAIN TO TAX IN THE IMPUGNED YEAR TO THE ASSESSING OFFICER, WE FIND THAT THE REMAINING GROUN DS I.E. GROUND NO.2 TO 4, WITH REGARD TO THE CLAIM OF EXEMP TION U/S 54B & 54F OF THE ACT, CONSIDERING FAIR MARKET VALUE OF 12 PROPERTY AND RELATING TO GRANT OF BENEFIT OF COST O F IMPROVEMENT OF LAND, CANNOT BE ADJUDICATED AT THIS JUNCTURE. THESE ISSUES ARE, THEREFORE, ALSO RESTOR ED TO THE ASSESSING OFFICER TO BE ADJUDICATED UPON AFRESH AFT ER DECIDING THE MAIN ISSUE IN THE PRESENT APPEAL AS PE R OUR DIRECTIONS WITH REGARD TO GROUND NO.1 RAISED BY THE ASSESSEE. THE GROUNDS OF APPEAL NOS.2 TO 4 ARE ALS O, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DIVA SINGH) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 9 TH APRIL, 2018 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH 13