Rakesh Kumar Gupta, Meerut V. ITO, Ward- 2(2), Meerut

ITA 3876/DEL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4351 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 15-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR JIWANI
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C; 148

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI BHAVNESH SAINI , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3876/DEL/2017 (ASSESSMENT YEAR: 2007 - 08 ) RAKESH KUMAR GUPTA, C/O. VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT PAN: ADAPG7314E VS. ITO, WARD - 2(2), MEERUT (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY: SHRI VIJAY KUMAR JIWANI, SR. DR DATE OF HEARING 07/08 / 2018 DATE OF PRONOUNCEMENT 3 1 / 10 / 2018 O R D E R PER PRASHANT MAHARISHI , A. M. 1 . THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A), ALIGARH DATED 30.03.2017, WHEREIN, THE CAPITAL GAIN COMPUTATION AS PER STAMP VALUE AUTHORITIES WAS UNDER CHALLENGE. THE ASSESSEE HAS PREFERRED TWO GROUNDS OF APPEAL WHICH ARE AS UNDER: - 1. THAT THE A.O. WAS NOT JUSTIFIED TO MAKE ADDITION OF RS. 2,41,345/ - UNDER THE HEAD OF SHE TERM CAPITAL GAIN AS AGAINST DIFFERENCE BETWEEN ACTUAL SALE CONSIDERATION AND VALUE AS PE - STAMP AUTHORITIES. HOWEVER, CAPITAL GAIN IS LONG TERM CAPITAL GAIN. A.O. HAS ALSO ACCEPTED SALE CONSIDERATION OF RS. 11,45,655/ - ONLY (VALULE AS PER SALE DEED) IN T HE ASSESSMENT ORDER. RECEIPT OF RS. 13,87,000/ - (VALUE AS PER STAMP AUTHORITIES) WAS ALSO NOT MENTIONED IN THE ASSESSMENT ORDER. ADDITION HAS BEEN DONE ON DEEMING PROVISION BASIS ONLY AND CIT(A) ALSO IN ERROR IN CONFIRMING THE SAME. 2. THAT THE LD. A.O. FA ILED TO APPRECIATE THAT THE APPELLANT HAD SOLD THE PROPERTY IN THE CAPACITY OF THE POWER OF ATTORNEY HOLDER ONLY AND THE SALE CONSIDERATION RECEIVED BY THE APPELLANT WAS ONLY IN THE CAPACITY OF POWER OF ATTORNEY HOLDER. THEREFORE, THE ADDITION OF RS. 2,41, 345/ - INVOKING THE PROVISION OF SECTION 50C OF THE ACT IN THE HANDS OF THE APPELLANT IS UNJUSTIFIED AND THE SAME MAY BE DELETED. NO INQUIRY WAS MADE FROM THE OWNER OF THE PROPERTY AND CIT(A) ALSO IN ERROR IN CONFIRMING THE SAME. RAKESH KUMAR GUPTA VS ITO, ITA NO. 3876/DEL/2017 (ASSESSMENT YEAR: 2007 - 08) PAGE | 2 3. THAT APPELLANT PRAYS THA T THE ADDITION OF RS. 2,41,345/ - UNDER SECTION 50C OF THE ACT IS WITHOUT ANY BASIS AND HENCE, THE SAME MAY BE DELETED. 2 . THE BRIEF FACTS OF THE CASE SHOWS THAT THE ASSESSEE IS AN INDIVIDUAL TO WHOM NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 WAS ISSUED ON 2 9.03.2014. ONLY ISSUE INVOLVED IN APPEAL IS THAT THE ASSESSEE HAS SOLD A PROPERTY OF PLOT NO. A - 45 ON 22.02.2007 FOR RS. 1145655/ - CIRCLE VALUE OF WHICH WAS RS. 1387000/ - AND THEREFORE THE LD AO WANTED TO COMPUTE THE CAPITAL GAIN BY ADOPTING THE MARKET VAL UE AS SALE CONSIDERATION BY APPLYING THE PROVISION OF SECTION 50C OF THE ACT. IN RESPONSE TO THE NOTICE ISSUED U/S 148 THE ASSESSEE SUBMITTED THAT ORIGINAL RETURN FILED ON 31.10.2007 DECLARING RETURN OF INCOME OF RS. 176030/ - MAY BE TREATED AS RETURN OF IN COME FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. 3 . DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE DID NOT SUBMIT ANY REPLY IN RESPONSE TO THE NOTICE ISSUED BY THE LD AO. THEREBY THE LD AO CONSIDERED THE DEEMED SALE CONSIDERATION OF RS. 1387 000/ - AND HELD THAT SHORT TERM CAPITAL GAIN SHOWN BY THE ASSESSEE IS TO BE INCREASED BY RS. 241345/ - BEING DIFFERENCE IN ACTUAL SALE CONSIDERATION AND DEEMED SALE CONSIDERATION. CONSEQUENTLY, ASSESSMENT U/S 148 READ WITH SECTION 143(3) WAS PASSED DETERMINING TOTAL INCOME OF THE ASSESSEE AT RS. 417375/ - AGAINST THE RETURN FILED AT RS. 176030/ - . THE ASSESSEE PREFERRED AN AP PEAL BEFORE THE LD CIT(A) WHO PASSED AN ORDER DATED 30.03.2017 DISMISSING THE APPEAL OF THE ASSESSEE. HE HELD THAT THAT AMENDMENT IN SECTION 50C OF THE ACT W.E.F 01.10.2009 IS CLARIFACTORY IN NATURE AND THEREFORE, THERE IS NO ERROR IN THE ORDER OF THE LD A O. SAME WAS CONSIDERED. 4 . DESPITE NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE, HOWEVER THE ASSESSEE SUBMITTED A WRITTEN SUBMISSION DATED 02.08.2018 AND REQUESTED TO CONSIDER THE SAME. 5 . THE LD DR RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. RAKESH KUMAR GUPTA VS ITO, ITA NO. 3876/DEL/2017 (ASSESSMENT YEAR: 2007 - 08) PAGE | 3 6 . WE HAVE CA REFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO NOTED THAT THE ASSESSEE SOLD A PROPERTY ON 22.02.2007 FOR RS. 1145655/ - WHOSE MARKET VALUE ASSESSED BY THE REGISTERING AUTHORITY WAS RS. 1387000/ - . THE ASSESSEE HAD ACCEPTED THE ABOVE SALE DEED AS A POWER O F ATTORNEY WAS REGISTERED ON 29.05.2004 AND ULTIMATELY PLOT WAS TRANSFERRED IN THE NAME OF THE ASSESSEE ON 31.01.2007. THE ASSESSEE DID NOT PRODUCE ANY DOCUMENT WITH RESPECT TO THE POWER OF ATTORNEY RECEIVED BY THE ASSESSEE. BEFORE US IN THE WRITTEN SUBMI SSION IT IS SUBMITTED THAT AMENDMENT IN SECTION 50C HAS BEEN MADE W.E.F 01.10.2009 AND THEREFORE IN THE IMPUGNED APPEAL SAME CANNOT BE APPLIED. ON CAREFUL CONSIDERATION OF THE ARGUMENT IT IS APPARENT THAT THE ASSESSEE IS CONTENDING THAT EXPLANATION 2 INSER TED W.E.F 01.10.2009 IS NOT APPLICABLE TO THE CASE OF THE ASSESSEE. HOWEVER, IN THE PRESENT CASE THE ASSESSEE HAS EXECUTED THE SALE DEED AND STAMP DUTY HAS BEEN PAID ON THE VALUE DETERMINED BY THE REGISTERING AUTHORITY. THEREFORE, THAT EXPLANATION DOES NO T APPLY TO THE FACTS OF THE CASE. THE PROVISION OF SECTION 50C OF THE ACT ARE CLEAR CUT. THE ASSESSEE HAS SOLD A PROPERTY DURING THE YEAR AT THE RATE BELOW THE CIRCLE RATE ON WHICH THE SAME STAMP DUTY IS PAYABLE. THEREFORE, INSTEAD OF THE ACTUAL SALE VALUE THE VALUE DETERMINED BY THE REGISTERING AUTHORITY SHALL BE CONSIDERED AS THE DEEMED SALE CONSIDERATION U/S 50C OF THE ACT. IN VIEW OF THIS THE APPEAL OF THE ASSESSEE ON BOTH THE GROUNDS IS DISMISSED. 7 . IN THE RESULT THE APPEAL IS DISMISSED. ORDER PRONOU NCED IN THE OPEN COURT ON 3 1 / 10 / 2018 . - SD/ - - SD/ - ( BHAVNESH SAINI ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 1 / 10 / 2018 A K KEOT COPY FORWARDED TO 1 . APPLICANT RAKESH KUMAR GUPTA VS ITO, ITA NO. 3876/DEL/2017 (ASSESSMENT YEAR: 2007 - 08) PAGE | 4 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI