Income Tax Officer, Ward-10(2), Hyderabad V. Ms.D.Anitha, Secunderabad

ITA 373/HYD/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82643 (ITAT-HYDERABAD)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 31-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 05-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P PRASAD
• Assessee Lawyers: RAMAKRISHNA B
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Fair market value
• Section: 37; 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SMT.ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO.394/HYD/14 : ASSESSMENT YEAR 2009 - 10 SMT. D. ANITHA , HYDERABAD (PAN A EMPD 1824 K ) V/S. INCOME TAX OFFICER WARD 10 (2), HYDERABAD (APPELLANT) (RESPONDENT) ITA NO.373/HYD/14 : ASSESSMENT YEAR 2009 - 10 INCOME TAX OFFICER WARD 10(2), HYDERABAD V/S. SMT. D. ANITHA, HYDERABAD (PAN AEMPD 1824 K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.PRASAD RESPONDENT BY : S HRI RAMAKRISHNA B., DR DATE OF HEARING 9 .12.2014 DATE OF PRONOUNCEMENT 24.12.2014 O R D E R PER P.M.JAGTAP, ACCOUNTANT MEMBER : TH ESE TWO APPEALS ONE FIELD BY THE ASSESSEE BEING ITA NO.394/HYD/2014 AND THE OTHER FILED BY THE DEPARTMENT, BEING ITA NO.373/HYD/2014 - ARE CROSS APPEALS, WHICH ARE DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A) VI, HYDERABAD DATED 15.11.2013. 2. THE R ELEVANT FACTS OF THE CASE GIVING RISE TO THIS APPEAL ARE AS FOLLOWS : T H E ASSESSEE IS AN INDIVIDUAL. AS PER THE INFORM A TION RECEIVED BY THE ASSESSING OFFICER, THE ASSESSEE HA D ENTERED I N TO A SALE AGR EE MENT FOR LAND ADMEASURING 3,964 SQ. YARDS IN SURVEY NO.28 OF RASOOLPURA, S ECUNDERABAD TO M/S. SRI I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 2 VINAYAKA C O NSTRUCTIONS OF BAPUJI NAGAR FOR VALUE OF RS.25 LAKHS. IT ALSO CAME TO THE KNOWLEDGE OF THE ASSESSING OFFICER THAT THE VALUE OF THE SAID PROPERTY, AS ADOPTED FOR THE PURPOSES OF STAMP DUTY WAS RS.3,9 9,65,000. SINCE NO RETURN OF IN C OM E FOR THE YE A R UNDER CONSIDERATION WAS FIL E D BY TH E ASSESSEE DE C LARING CAPITAL GAINS ARISING F R OM THE SAID TRANSACTION, A NOTICE UNDER S.148 WAS ISSUED BY THE ASSESSING OFFICER TO T H E ASSESSEE ON 7.1.2011, WHICH REMAIN E D U NCOMPLIED WITH. SUB S EQUENTLY , NOTICE S UNDER S.142 WERE I S SUED BY TH E ASSESSING OFFICER , IN R E SPON S E TO W H ICH THE ASSESSEE APPEARED ON 5.12.2011 FOR H EA RING BEFORE THE ASSESSING OFFICER. DU R IN G T H E COURSE OF H E ARING, THE ASSESSEE WAS CALLED UPON B Y THE ASSESSING OFFICER TO EXPLAIN WHY CAPITAL GAIN ARISING FROM THE TRANSFER OF P R OP E RTY AT SURVEY NO.28 RASOOLPURA , SECUN D ERABAD SHOULD NO T BE ASSESSED IN HER HANDS BY ADOPTING THE MARKET VALUE OF R S .3,99,65,000 . I N REPLY, IT WAS STA T ED BY THE ASSESSEE THAT SHE IS NO T AWARE O F THE SAID TRANS A CTION AND THAT SHE HAS NO T RE C EIVED ANY CON S I D ERATION OUT OF TH E SAID TRANSACTION. THE ASSESSEE HO W EVER COULD NO T P R O D U C E ANY EVI D ENCE SUCH AS CONFIRMATION FROM BUYERS ETC. , T O SUBSTANTIATE HER CLAIM AND FILED ONLY SOME C OPIES OF ENCUMBRANCE CERTIFICATE S . SHE ALSO ACCEPTED THAT THE SI G NATURE A PPEARING ON TH E SALE DEED WAS HER OWN SIGNATURE S . KEEP I NG IN VIEW THIS AVERMENT MADE BY TH E ASSESSEE AS WELL AS HER FAILURE TO PRO D U C E ANY EVIDENCE TO SUPPORT AND SUBS TA NTIATE HER C LAIM OF DENIAL OF TRANS A CTION, THE ASSESSING OFFICER BROUGHT TO TAX LONG TERM CAPITAL GAIN OF R S .3,88,11,476 IN THE HANDS O F THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION , AFTER REDUCING THE INDEXED COST OF ACQUISITION O F R S .11,53,524 FROM TH E SALE CON S I D ERATION OF R S .3,99,65,000 ADOPT E D BY HIM UNDER S.50C OF TH E AC T, IN THE ASSESSMENT COMPLETED UNDER S.143(3) READ WITH S.147, VIDE ORDER DATED 30.12.2011. I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 3 3. AGAINST THE O RDER PASSED BY THE ASSESSING OFFICER UNDER S.143 ( 3), AN APPEAL WAS PREFERRED BY T HE ASSESSEE BEFORE THE LEARNED CIT(A), CHALLENGING THE AD D ITION MADE ON AC C OUN T OF LONG TERM CAPITAL GAINS. DURING THE COURSE OF APPELLATE P R OCEEDIN G S BEFORE THE LEARNED CIT(A), IT WAS CONTENDED BY THE ASSESSEE T HAT THE PURPORTED SALE TRANSACTION APPEARING IN THE SALE DEED WAS A BOGUS TRANSACTION, AS THE ASSESSEE WAS INDUCED BY HER SISTER TO SIGN THE SAID SALE D E ED. IT WAS SUBMITTED THAT THE ASSESSEE W AS STAYING AT THE RELEVANT TIME WITH HER ELDER SISTER AND SIN C E SHE WAS UNDER THE ABSOLUTE CONTROL O F THE SAID SISTER, SHE WAS OBLIGED TO SIGN CERTAIN DOCUM E N T S AND ALSO TO PROVIDE HER IDENTITY CARD. IT WAS CONTENDED THAT THE RELEVANT TR A N S ACTION, THUS, WAS ENTIRELY A BOGUS TRANS A CTION WHEREIN THE NAME OF THE ASSESSEE WA S UTILISED AS ONE PARTY AND AT NO POINT OF TIME, THE CONSIDERATION REFERRED TO IN THE SALE DEED WAS ACTUALLY RECEIVED BY THE ASSESSEE. IT WAS ALSO CONTENDED THAT THE ASSESSEE , AT NO POINT OF TIME, WAS THE OWNER OF THE PROPERTY STATED TO BE SOLD AS PER THE SALE DEED AN D HAVING NOT R E C E IVED EVEN A SINGLE RUPEE OUT O F THE TR A N S AC TI ON, NO CAPITAL GAIN ARISING FROM THE SAID TRANS A CTION COULD BE BROUGHT TO TAX IN THE HANDS O F THE ASSESSEE. IN SUPPORT OF THE VARIOUS CON T ENTION S RAIS E D, ADDITIONAL DOCUMENTARY EVIDE N CE WAS FIL E D BY THE ASSESSEE BE FORE THE LEARNED CIT(A) . 4. THE DOCUM E N T ARY EVID E NCE FIL E D BY THE ASSESSEE B EF ORE HIM FOR THE FIRST TIME WAS FORWARDED BY THE LEARNED CIT(A) TO THE ASSESSING OFFICER TO CAUSE NECESSARY ENQUI R I E S. AS PER THE DIRE CT ION S OF THE LEARNED CIT(A), NECESSARY ENQUI R I E S WERE CONDUCTED BY TH E ASSESSING OFFICER AND A REMAND REPO R T WAS SUBMITTED BY HIM TO THE LEARNED CIT(A) GIVING HIS COMM E N T S ON VERIFICATION OF TH E ADDITIONAL DOCUM E N T ARY EVIDENCE FIL E D BY THE ASSESSEE . THE SAID REMAND REPORT WAS CONFRONTED BY TH E LEARNED CIT(A) TO TH E ASSESSEE AND AFTER TAKING INTO CON S I DE RATION TH E I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 4 COUN TE R COMMENTS OFFERED BY TH E ASSESSEE ON TH E REMAND REPORT, OTHER SUBMI S SION S MADE BY TH E ASSESSEE AND THE COMMENTS OFFERED BY TH E ASSESSING OFFICER IN THE REMAND REPORT A S WELL AS THE M A TERIAL AVAILABLE ON RECORD, THE LEARNED CIT(A) , HELD FOR TH E FOL L OWIN G R E ASONS GIVEN IN PARAGRAPH 4.9 OF HIS IMPU G N E D ORDER , THAT THE ASSESSEE WAS HOL D IN G RIGHTS OVER THE PROPERTY TRAN S FERRED TO THE EXTENT OF 60% AND CAPITAL GAIN S ARISING FROM TRANS FER OF SUCH RIGHTS W AS CH A RGEABL E TO TAX IN HER HANDS AS CAPITAL GAINS - 4.9 . ON THE OTHER HAND, THE CONSISTENT SUBMISSIONS OF THE APPELLANT WAS THAT SHE WAS NOT THE OWNER OF THE PROPERTY, EXCEPT HOLDING TO CERTAIN CONST R U C T E D PART OF THE LAND LOCATED AT SURVEY NO.28, RASOOLPURA, AND WAS PAYING ELECTRICAL CHARGES FOR THE PROPERTY WITH SUCH ELECT R IC CONNECTION IN HER NAME, AND THE SAID FAC T S DO NO T ENTITLE HER TO THE OWNERSHIP OF TH E PROPERTY ADMEASURING 3964 SQ. YARDS, WHICH W A S SHOWN TO HAVE BE E N SOLD VIDE THE SALE DEED D A TED 03.04.2008, FOR A TOTAL CONSIDERATION OF RS .25,00,000 OUT OF WHICH RS.10,00,000 WAS RECEIVED IN CASH BY MRS.D.SRIATHA KAMAKSHI, W/O. SRINIVAS RAO, AS AGAINST R S .15,00,000 DD ISSUED IN HER NAME, WHICH WERE ALSO FRAUDULENTLY ENCASHED BY APPELLANTS SISTER MRS.VIJAYA LAKSHMI, BY OPENING A BANK ACCOUNT BY IMPERSONATION. THUS, AS PER THE APP E LL A N T , SHE WAS FORCED TO SIGN ON THE DOCUM E N T S, RELATED TO A PROPERTY TO WHICH SHE WAS NEVER A OWNER, EXCEPT TO HOL D THE CON S TRU C TED AREA WHICH WAS UNDER OCCUPATION OF HER FAMILY AND NO CON S I D ERATION WAS RECEIVED BY HER. EVEN ON FACTS, IT WAS PROVED THAT, 40% OF THE CONSIDERATION WAS REC E IVED BY MRS. SRILATHA K AMAKSHI, PROVING THAT THE APPELL A N T IS NOT THE OWNER OR TITLE FOR TOTAL OF THE PROPERTY UNDER RE F E R EN CE , AS SUCH ESTABLISHING THAT THE ACT OF CONSIDERING THE ENTIRE SALE PROCEEDS IN THE HANDS OF APPELLANT IS NO T CORRECT. THE ASSESSING OFFICER ALSO ACKNOWLEDGE THE FACTS IN THIS REGARD. R EG ARDING THE OWNERSHIP O F TH E L A ND /PROPERTY UNDER REFER E N C E, THE APP E LL A N T COULD ESTABLISH THAT SHE WAS N E VER UNDER FULL CONTROL OF THE PROPERTY EXCEPT TO HOL D THE CONSTRUCTED AREA, BY VIRTUE OF THEIR RESIDEN C E/STAY THE R E, AND THE SAID RIGHT WAS ALSO SHOWN TO H A VE TAKEN AWAY BY THE DECISION OF COURTS, IN F A VOU R O F T H EI R R EAL OWNER, WHICH WAS CANTONMENT BOARD, AS PER THE SUBMI S SION S O F THE APPE L LANT. ALL THE FACTS/INFORMATION BROU G H T ON RECORD INDICATE THAT THE L E GAL BATTLE RE G ARDIN G TH E RIGHTS OVER THE PROPERTY ARE STILL UNDER WAY, W ITH TH E ACTUAL OWNERSHIP SHOWN TO HAVE BEEN ORDERED TO BE VESTED WITH THE CA NTONMENT BOARD. HOW E VER, IT I S ALSO A FACT THAT THE VENDEE OF THE PROPERTY, WHO BOUGHT THE S A ID PROPERTY/RIGHT OVER THE P R OP E RTY FROM TH E APPELL A N T AS WELL AS SRILATHA K AMAKSHI, I S STILL UNDER POSSESSION OF TH E SAID PROPERTY, AS PER THE INFORMATION BROUGHT ON RECORD. UNDER TH E CIRCUMSTANCES, IT IS REASONABLE TO HOLD THAT THE APPELL A N T , AS A SIGNATORY TO THE SALE DEED UNDER RE F ERENCE, CAN B E PRESUMED TO BE THE VENDOR OF THE RIGHTS OVER THE PROPERTY, WITH HER SHARE RESTRICTED TO 60% OF THE SALE PROCEEDS, NOTWITHSTANDING THE FACT THAT SUCH PROCEEDS RECEIV E D THROUGH DEMAND DRAFTS SHOWN TO H A VE I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 5 BEEN ENCASHED BY HER SISTER MRS.VIJAYA LAKSHMI. SINCE, THE END USER OF THE CON S I D ERATION IS N OT AN ISSUE OR BASIS FOR DETERMINING THE ACCRUAL OR ARISING OF CAPITAL, IN SALE OF PROPERTY, THE CAPITAL GAINS HELD TO HAVE ACCRUED/ARISEN IN THE H A N D S OF THE APP E LL A N T TO THE EXTENT OF HER SHARE IN RIGHT. 5. THE ACTION OF THE ASSESSING OFFICER IN W ORKING OUT THE C APITAL GAINS CHARGEABLE TO TAX IN TH E HANDS OF THE ASSESSEE BY ADOPTING TH E V ALUE OF RS.3,99 , 65,000 TAKEN FOR TH E S T AMP DUTY PU R PO S ES BY INVOKING THE P R OV I SION S O F S S.50C , HO W EVER, W A S NO T UPHELD BY T HE LEARNED CIT(A) FOR THE FOLLO W IN G REASONS GIVEN IN PARAGRAPH 4.10 OF HIS ORDER - 4.10 THE NEXT ISSUE COMES INTO PICTURE I S THE QUANTUM O F SALE CON S I D ERATION. THE ASSESSING OFFICER IN ASSESSMENT ORDER PRESUMED TO HAVE REFERRED TO THE P R OVI SI ON S OF SEC.50C O F TH E AC T, FOR ADOPTIN G THE VAL UE O F THE PROPERTY UNDER REFERENCE, AT FAIR MARKET VALUE, FOR ARRIVING AT THE SALE V AL U E OF RS.3,99,65,000/ - . IN THIS RE G ARD, IT IS RELEVANT TO R E FER TO THE P R OV I SION S OF SEC . 50C OF THE INCOM E - TAX A C T, WHICH R E AD AS UNDER: (1) WHERE THE CONSIDERATION R E CEIV E D OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, B E IN G LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED ( OR ASSESSED OR ASSESSABLE) BY ANY AUTHORITY O F STATE GO V ERNMEN T (HEREAFTER IN THIS SECTION REFERRED TO AS THE STAMP VALUATION AUTHO R ITY) FOR THE PURPOSE O F PAYMENT OF STAMP DUTY IN R E SPE C T OF SUCH TRAN SF ER, THE VALUE SO ADOPTED (OR ASSESSED OR ASSESSABLE) SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCR UING AS A RESULT OF SUCH TRANSFER. (2) WITHOU T PREJU D I C E TO THE P R O V I SI ON S O F SUB - SECTION (1), WHE R E (A ) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED (OR ASSE S SED OR ASSESSABLE) BY TH E STAMP VALUATION AUTHORITY UNDER SUB - SECTION (1) EXCEEDS THE FAIR MARKET VALUE O F THE P R OP E RTY AS ON THE DATE OF TRANSFER; (B) THE VALUE SO ADOPTED (OR ASSESSED OR ASSESSABLE ) BY TH E STAMP VALUATION AUTHORITY UN D ER SUB - SEC T ION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 6 RE FERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, THE ASSESSING OFFICER MAY REFER THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS MADE, THE PROVISIONS OF SUB - SECTIONS (2), (3) (4), (5) AND (6) OF SECTION16A, 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 ACT, 1957 (27 OF 1957) SHALL, WITH NECESSARY MODIFICATIONS, APPLY IN R E L A TION TO SUCH REFERENCE AS THEY APPLY IN REL A TION TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB - SECTION (1) OF SECTION 16A OF THE ACT. THUS, AS COULD BE SEEN, THE REFERENCE TO SEC.50C IS NOT ABSOLUTE, BUT SUBJECT TO CERTAIN CONDITIONS, WHICH IS STIPULATED IN SUB - SECTION 2 OF SEC.50C. IN THIS CASE, IT IS A FACT THAT THE PROPERTY UNDER REFERENCE IS NOT CLEAR TITLED AND MANY CLAIMS ARE THERE OVER IT. FURTHER, THERE IS NO OWNERSHIP TO THE APPELLANT OR HER FAMILY MEMBERS, AS PER THE ENCUMBRANCE CERT IFICATES OR THE AFFIDAVIT FILED BY FATHER OF THE APPELLANT. WHAT THE APPELLANT TRANSFERRED, VIDE THE SALE DEED D A TED 03. 0 4.2008, APP E ARS TO BE ONLY TH E LIMI T ED RIGHTS OVER THE PROP ER TY, WHI C H I S ALSO UNDER DISPUTE. UNDER THE CIR C UM S TANCES, I T IS NEITHER CL EARLY IN D I C ATED, NO R JUSTIFIED TO MAKE A REF E RENCE TO SEC.50C, FOR ADOPTING THE MARKET VALUE O F THE PROP E RTY. WHERE THE P R OPERTYS VALUE IS CON S IDERED TO BE LOWER THAN THE M A R K E T VALUE, THERE WAS A REQUIREMENT ON THE PART OF THE ASSESSING OFFICER TO ASSESS THE ACTUAL VALUE OF THE PROPERTY OR RIGHT IN THE PROPERTY, AS APPEARS TO BE A FACT IN THI S CA S E, BY REFERRING THE SAID PROPERTY TO VALUATION. JUDICIAL DECISION S SUPPORT THIS VIEW. HAVING FAILED TO ESTABLISH THE REASONABLE VALUE/RATE OF THE PROPERTY U NDER REFERENCE, I AM OF THE CON SIDERE D OPI N ION THAT ASSESSING OFFICER IS DIR E CTED TO ACCEPT THE V ALUE ADOPTED IN TH E SALE DEED UNDER REFERENCE. ALTERNATIVELY, THE ASSESSING OFFICER WAS HAVING ALL THE AVENUES TO EXP L ORE THE POSSIBIL ITY OF VALUATION OF SAI D PROPERTY, BY ASCERTAINING TH E CORRE C T OWNERSHIP OF THE SAID PROPERTY U N D ER REFERENCE. HOW E VER, TH E AO CHOSEN TO GO BY APPARENT INFORMATION AS O R IGINATED FROM THE SALE DEED, WITHOU T APPRECIATING THE F ACTS ASSOCIATED WITH T H E S A ID TRANSACTION. HENCE, I T I S REASONABLE TO HOL D THAT BASED ON THE FA C T THAT THE VERIF I ABLE IN F ORM A TION I ND I CATE THAT THE PROP E RT Y UNDER REF E REN C E DOES NO T H A VE THE VALU E AS REFERRED TO THE SRO AND IN ABSENCE OF THE SAME THE VALUE AS INDICATED IN SALE DEED, IS DIRECTED TO BE ADOPTED. FURTH E R, THE SH A RES OF THE APP E LL A N T IN THE SAID TR AN SAC T ION IS HELD TO B E CONFIN E D TO 60%. ACCOR D IN G LY, THE ASSESSING OFFICER IS DIR E CT E D TO CO M PU T E THE TAXABLE CAPITAL GAINS, ON THE ABOVE LINES, AFTER ALLO W IN G THE PROPORTIONATE COST OF I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 7 ACQUISITION. TH IS GROUN D O F APPEAL IS TREATED AS PARTLY ALLOWED. 6. ACCORDIN G LY, THE ASSESSING OFFICER WAS DIRECT E D BY THE LEARNED CIT(A) TO COMPU T E THE CAPITAL GAIN S C HA R GEABLE TO TAX IN THE HANDS OF THE ASSESSEE BY TAKING HER SHARE AT 60% OF THE TOTAL SAL E CON S I D E R ATION OF R S .25 LAKHS. AGGRI E VED BY THE SAME, THE ASSESSEE AND R EV ENUE BOTH ARE IN APPEALS B E FORE THE TRIBUNAL ON THE FOL L OWIN G GROUNDS - GROUNDS IN ASSESSEES APP E AL: (1) THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) VI/HYDERABAD ERRED IN RESTRICTIN G THE OWNERSHIP IN THE PROPERTY TO 60% SHARE, WHEN THE APPELLANT IS NOT AT ALL THE OWNER OF THE PROPERTY. (2) THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) VI/HYD SHOULD HAVE HELD THE APPELLANT, AS NOT THE OWNER OF THE PROPERTY. (3) ANY OTHER GROUND OR MODIFICATION OF THE GROUNDS ALREADY FILED WITH THE PERMISSION OF THE HONOURABLE ITAT. GROUNDS IN REVENU E S APPEAL : (1) THE HON'BLE COMMISSIONER OF INCOME - TAX(APPEALS) APPEARS TO HAVE ERRED IN FACTS AND IN LAW WHILE DIRECTING THAT THE ASSESSING OFFICER SHOULD ADOPT THE VALUE AS MENTIONED IN THE SALE DEED AND NO T THE VALUE ADOPTED BY THE SRO, MERELY BECAUSE TH E RE IS SOME DISPUTE ABOUT TH E OWNERSHIP OF THE L A ND IN QUE ST ION. (2) THE HON'BLE COMMISSIONER OF INCOME - TAX(APPEALS) APPEARS TO H AV E ERRED IN LAW BY DIRECTING THE AO TO ADOPT TH E VALUE O F THE SALE DEED IN A SITUATION WH E RE THERE IS NO ONUS CAST ON THE ASSESSING OFFICER TO RE C ORD A FIN D IN G THAT THE ASSESSEE RECEIVED MORE CON S I D E R ATION THAN WHAT HAS BEEN SHOWN IN THE SALE DE E D. (3) THE HON'BLE CIT(A) APPEARS TO HAVE ERRED IN FACTS BY OVERLOOKING THAT THE ASSESSEE - INDI VI DUAL DID NO T CLAI M B E FORE THE ASSESSING OFFICER THAT THE VALUE ADOPTED BY I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 8 THE STAMP V A LU A TION AUTHO R I T Y WAS MORE THAN TH E FMV OF THE SAID PROPERTY. 7 . WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IN SUPPORT O F TH E ISSUE R AISED IN TH E ASSESSEES APPEAL, THE LEARNED CO UN SEL FOR THE ASSESSEE HAS MAINLY REITERATED BEFORE US THE SUBMI S SION S MADE BEFORE THE LEARNED CIT(A). HE HAS CONTENDED THAT THE ASSESSEE WAS N E VER THE OWNER OF TH E P R OP E RTY AND SIN C E THE CON S I D ERATION M E N T ION E D IN THE SALE DEED HAD NEVER REACHED HER, THE CAPITAL GAINS ARISING FROM TH E TR A N S ACTION AS REC O R D ED IN THE RELEVANT AGREEMENT IS NO T CH A RGEABL E TO TAX IN THE HANDS O F THE ASSESSEE . H E HAS ALSO TAKEN US THROUGH THE RELEVANT DO C UM E N T ARY EVINCE PL A CED IN TH E P A PER BOOK TO SUPPO R T AND SUBSTANTIAT E THE CASE O F TH E ASSESSEE THAT SHE WAS NO T THE OWNER OF THE PROPERTY AND IT WAS HER SISTER, WHO INDUCED HER TO SIGN THE RELE V ANT AGREEMENT WITHOUT MAKING HER FULLY AWARE OF THE CONTENTS THER E OF. IT IS HOWEVER, OBSERVED T HAT THIS DO C UM E NTARY EVIDENCE RELIED UPON BY THE LEARNED COUNSEL FOR THE ASS ESSEE IN SUPPORT O F THE ASSESSEE CA S E HAS ALSO BEEN CON S I D ERED AND ANALYSED BY THE LEARNED CIT(A) IN TH E LI G HT O F THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER AND COM M EN T S OFFERED BY THE ASSESSEE THEREON, B E FORE COMING TO THE CON C LU S ION THAT THE ASSESSEE, EVEN THOUGH WAS NOT THE ABSOLUTE OWNER OF THE PROPERTY TRANSFERRED, WAS HOLDING CERTAIN RIGHTS OVER THE SAID PROPERTY, WHICH CON S TI T UTED A CAPITAL A SSET WITHIN THE MEANING OF S.2(14) OF THE ACT . W E HAVE ALSO PERUSED THE REL E VANT DOCU ME N TS PLACED ON RECORD BEFO R E US IN THE P A P E R BOOK FIL E D BY TH E ASSESSEE AND FIND FROM A PERUSAL OF THE REL E VANT AGREEMENT REFERRED TO AS AGREEM E NT OF SALE - CUM - GENERAL POW E R OF ATTORNEY WITH POSSESSION PL ACED AT P A GES 51 T O 63 OF THE PAPER - BOOK THAT THE SAME WAS ENTERED INTO BY THE ASSESSEE JOINTLY WITH SMT. D. SHR ILATHA K AMAKSHI, AS V ENDOR S/PRINCIPALS , WITH M/S. SRI VINAYAKA CON S TRUCTIONS AS P U R CHA S ER S /ATTORNEY HOL D ER S . THE SAID I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 9 AGREEMENT WAS NO T ONLY SIGNED BY THE ASSESSEE, BUT SHE PERSONALL Y PRESENTED HE RSELF BE FORE THE CON C ERNED GOVERNMENT AUTHORITY FOR REGISTRATION , A FTER DULY ESTABLISHING HER IDENTITY ON THE BASIS OF IDENTITY CARD ISSUED BY THE ELECTION COMMI S SION OF INDIA. IN TH E SAID AGREEMENT, ASSESSEE STYLED HERSELF AS THE OWNERS OF THE PROPERTY HAVING ACQUIRED THE SAME FROM HER FATHER SHRI D.DURGA PRASAD. IT WAS ALSO STATED IN THE AGREEMENT THAT SHE HAD CONSTRUCTED A SHED WITH AC - SHE ET ROOF ING AND GOT THE SAME ASSESSED UNDER THE C ANTONMENT BOARD ACT. IT WAS FURTHER STATED THAT SHE WAS PAYING TAXES REGUL A RLY IN RESPE C T OF THE SAID PROPERTY TO TH E CONCERNED AUTHO R I T I E S AND WAS IN CONTINUOUS AND UNINTERRUPTED POSSESSION OF THE SAME, SIN C E SEVERAL YEARS, EXERCISING ALL RIGHTS OF OWNERSHIP. 8. IT IS NO DOUBT TRUE THAT OTHER DOCUM E NTARY EVIDE N C E PRODUCED BY TH E ASSESSEE WAS SUFFI CIENT TO IN D I C ATE THAT THE PROPERTY WAS ENCUMBERED AND THE ASSESSEE COULD NO T B E SAID TO BE THE ABSOLUTE OWNER OF THE SAID PROPERTY. AT THE SAME TIME, I T I S ALSO TRUE THAT THE SAID D O C UMENTARY EVIDENCE READ WITH TH E AG RE E MENT ENTERED INTO BY THE ASSESSEE WITH M/S. SRI VINAYAKA CON S TRUC T ION S I S SUFFICIENT TO SHOW THAT THE ASSESSEE WAS HOL D IN G CERTAIN RIGHTS IN TH E PROPERTY AND THE SAME CONSTITUT ING CAPITAL ASSET WERE TRAN S FER R ED BY THE ASSESSEE BY AGREEMENT DATED 3RD APR IL, 2008 TO M/S. SRI VINAYAKA CON S TRUC T IONS FOR CON SIDERATION GIVING RISE TO CAPITAL GAINS CH A RGEABL E TO TAX IN HER HANDS TO THE EXTENT OF 60%, AS RIGHTLY H E LD BY THE LEARNED CIT(A) . WE TH E R E FORE, FIND NO INFI R MITY IN THE IMPU G N E D ORDER OF THE LEARNED CIT(A) HOL D IN G THE ASSESSEE TO B E THE OWNER OF CERTAIN RIGHTS IN TH E PROP E RTY TO THE EXTENT OF 60% AND ACCORDI N GLY DIRE C T ING THE ASSESSING OFFICER TO COMPU T E THE CAPITAL GAIN S ARISIN G FROM T RA N S FER OF THE SAID RIGHTS IN THE H A NDS OF TH E ASSESSEE . ACCO RD ING LY, THE I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 10 IMPU G N E D ORD E R OF TH E LEARNED CIT(A) ON THIS ISSUE IS UPHELD , AND THE APPEAL O F TH E ASSESSEE IS DISMI S SED. 9. AS REGARDS THE ISSUE INVOLVED IN THE APPEAL O F TH E REVENUE, RELATING TO TH E APPLI C ABILITY O F THE P R OVI SI ON S OF S .50C IN THE C A S E OF THE ASSESSEE , I T IS OB S ERVED THAT THE MARKET VALUE OF THE PROPERTY FOR STAMP DUTY PU R POSE WAS DETERMINED BY TH E CONCERNED AU T HO R I T Y AT R S .3,99,55,000 AND AC COR D IN G LY TH E STAMP DUTY THEREON WAS ALSO DULY PAID, WHILE REGISTERING THE REL E VANT AGREEMENT. TH E VALUE ADOPTED FOR THE PU R PO S E OF PAYMENT OF STAMP DUTY THUS W A S NOT DISPUTED BY THE RELEVANT PAR T IES, IN C LU D IN G THE ASSESSEE. THE LEARNED CIT(A) , HO W EVER, HELD THAT THE ASSESSEE WAS NOT THE OWNER OF THE PROPERTY AND SIN C E SHE HAD ONLY LIMITED RIGHTS O VER THE P R OP E RTY, WHICH WAS ALSO ENCUMBERED, THE MARKET VALUE O F THE PROP ER TY AS TAKEN FOR THE PU R PO S E O F PAYM E NT OF STAMP DUTY COULD NOT BE ADOPTED AS THE SALE CON S ID E RATION BY APPLYING THE P R O V I S IONS OF S.50C. WE HAVE ALREADY CONCURRED WITH TH E LEARNED CIT(A) WHILE DECIDING THE ISSUE INVOLVED IN THE APPEAL OF TH E ASSESSEE THAT THE ASSESSEE WAS NO T THE ABSOLUTE OWNER OF THE PROPERTY, AND WHAT THE ASSESSEE HELD WAS ONLY CERTAIN LIMITED RIGHTS OVER TH E SAID PROPERTY . IT, THEREFORE, FOLLOWS THAT THE CAPIT AL ASSET HELD BY THE ASSESSEE ITSELF WAS NEITHER THE LAND NO R THE BUILDING AS ENVISAGED IN SUB - SEC T ION ( 1 ) OF S.50C, AND WHILE COMPU T IN G TH E CAPITAL GAINS ARISING FROM TRANSFER OF SUCH ASSET, THE VALUE ADOPTED BY ANY AUTHORITY O F S TATE G OVERNMENT FOR THE P U RP OSE OF PAYMENT OF STAMP DUTY CANNO T BE TAKEN AS FULL VALUE O F CON S I DE RATION BY AP P LYIN G THE P R OVI S ION S OF S.50C, AS RIGHTLY HELD BY THE LEARNED CIT(A). WE , TH E R E FORE , UPHOL D THE IMP U GN E D ORDER OF TH E LEARNED CIT(A) ON THIS ISSUE AS WELL, AN D DISMISS THE APPEAL FIL E D BY THE REVENUE. I TA NO. 394 & 373/H YD/20 14 SMT. D. ANITHA, HYDERABAD 11 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE AS WELL AS TH AT OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 24 TH DECEMBER, 2014 SD/ - SD/ - ( ASHA VIJAYARAGHAVAN ) ( P.M.JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/ - 24 TH DECEMBER, 2014 COPY FORWARDED TO: 1. SMT. D. ANITHA (SECUNDERABAD ), C/O. M/S. SHARMA & SASTRY, CHARTERED ACCOUNTANTS, NO.5 - 3 - 318/1, JEERA, M.G.ROAD, SECUNDRABAD - 500 003 2 . INCOME TAX OFFICER WARD 10 (2), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) V I HYDERABAD 4. COMMISSIONER OF INCOME - TAX V , HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S