The Income-tax Officer, Amritsar. V. Smt. Baljinder Kaur, Amritsar.

ITA 405/ASR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57371 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND DRS; SSH TARSEM LAL
• Assessee Lawyers: PADAM BAHL
• Keywords: Sale consideration of property below Jantri Value; Valuation report
• Section: 50C; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.405(ASR)/2011 ASSESSMENT YEAR:2008-09 PAN:AEWPK1006Q INCOME TAX OFFICER, VS. SMT. BALJINDER KAUR, WARD 4(1), AMRITSAR. C/O JAMSON MOTORS, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:S/SH.TARSEM LAL & AMRIK CHAND, DRS RESPONDENT BY: SH. PADAM BAHL, CA DATE OF HEARING :15/03/2012 DATE OF PRONOUNCEMENT:16/03/2012 ORDER PERBENCH; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER OF THE CIT(A), AMRITSAR DATED 05.05.2011 RELATING TO ASSESSMENT YE AR 2008-09. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), AMRITSAR IS NOT JUSTIFIED IN DELETING THE ADDITION OF RS.68,19,139/- MADE BY THE A.O. WITHOUT APPRECIATIN G ITA NO.405(AS)/2011 2 THE FACTS THAT THE ASSESSEE ALONG WITH OTHER CO-OWN ERS HAS SOLD THE HOTEL BUILDING SITUATED AT DALHOUSIE BY WA Y OF AGREEMENT TO SELL FOR RS.37,50,000/- HAVING 17% SHA RE. 2. THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE ADDITION SIMPLY RELYING UPON THE GROUND THAT NO OUTSIDER AND NON HIMACHAL CAN SELL AND PURCHASE THE LAND BELONGING T O HIMACHAL PRADESH DUE TO THE RESTRICTION OF H.P. LAN D REVENUE ACT. 3. THE CIT(A) HAS NOT CONSIDERED THE FACT THAT SON OF ORIGINAL SELLER HAS CONFIRMED THAT POSSESSION OF HO TEL BUILDING ALONG WITH LAND APPURTENANT THERETO WAS TRANSFERRED TO ASSESSEE ALONG WITH CO-PURCHASER AFT ER EXECUTION OF THE SALE DEED. 4. WORTHY CIT(A) HAS NOT CONSIDERED THE FACT THAT A FTER EXECUTION OF SALE DEED IN FAVOUR OF ASSESSEE ALL TH E LEGAL RIGHT OF PROPERTY TRANSFERRED TO ASSESSEE. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE AO THAT THE ASSE SSEE HAS SOLD HOTEL PROPERTY AT DALHOUSIE ON 14.03.2008 BY WAY OF AGREE MENT TO SELL FOR RS.37,50,000/- IN WHICH THE ASSESSEE HAS ONLY 17% S HARE. INFORMATION U/S 133(6) WAS CALLED FOR FROM THE SUB-REGISTRAR, DALHO USIE REGARDING THE TOTAL VALUE OF THE HOTEL BUILDING AS PER THE STAMP DUTY A CT PURCHASE I.E. CIRCLE RATE. IN RESPONSE THERETO, THE SUB-REGISTRAR, DALHOUSIE F URNISHED THE INFORMATION VIDE HIS OFFICE LETTER DATED 24.11.2010 STATING THE REIN THAT THE TOTAL VALUE OF THE LAND OF THE ABOVE SAID HOTEL MEASURING 0.03.14 HECTARE AS PER CIRCLE RATE FOR THE PERIOD UNDER CONSIDERATION IS RS.4,00,67,15 0/- IN ADDITION TO THE COST ITA NO.405(AS)/2011 3 OF HOTEL BUILDING STRUCTURE. FURTHER, THE AO HAS CA LLED FOR INFORMATION FROM THE ORIGINAL SELLER OF THE HOTEL, SMT. VIJENDER KAU R W/O SH. KULDIP SINGH V. LOHALI, DALHOUSIE AND IN TURN HER SON, SH. HARPREET SINGH HAS FURNISHED AN AFFIDAVIT DT. 27.12.2010 IN WHICH ONE OF THE AVERME NTS/DEPONENTS MADE IS THAT THE HOTEL KOHINOOR SITUATED AT MOUZA BARKROTA TEHSIL DALHOUSIE, DISTRICT CHAMBA (HP) WAS SOLD AND PART OF THE VACANT LAND WA S LEASED IN THE YEAR 2001 TO SH. MANOHAR SINGH S/O SH. BINAT SINGH, SMT. BALJINDER KAUR, W/O SH. MANOHAR SINGH, SH. HARDEEP SINGH, SMT. TAJENDER KAUR, SH. HARMEET SINGH, BOTH ARE RESIDENTS OF THE MALL, AMRITSAR UND ER THE PROVISIONS OF HIMACHAL PRADESH LAND REVENUE ACT, WITH THE CONSENT OF THE PURCHASER. ACCORDING TO AO., THE REGISTRATION OF LAND WAS NOT MADE AS NON-HIMACHALI CANNOT LEGALLY BUY LAND IN HIMACHAL PRADESH. THUS, PLACING RELIANCE ON SUB-REGISTRAR, DALHOUSIES REPORT DATED 14.11.2010 TO THE EFFECT THAT THE TOTAL VALUE OF THE LAND OF THE ABOVE SAID HOTEL MEA SURING 0-03-14 HECTARE AS PER CIRCLE RATE PREVALENT AT THE RELEVANT POINT OF TIME IS RS.4,00,67,516/- AS WELL AS ON THE AFFIDAVIT DATED 27.12.2010 OF SH. HA RPREET SINGH SON OF THE ORIGINAL SELLER, SMT. VIJENDER KAUR, THE AO HAS MAD E AN ADDITION OF RS.68,19,139/- TOWARDS LONG TERM CAPITAL GAIN PERTA INING TO APPELLANTS SHARE OF 17% AS AGAINST THE LONG TERM CAPITAL GAIN SHOWN BY HER AT RS.1,20,062/- AND THUS DETERMINING THE ASSESSEES TOTAL NET ASSES SABLE AT RS.71,59,380/-. ITA NO.405(AS)/2011 4 4. BEFORE THE LD. CIT(A), THE ASSESSEE MADE THE SUB MISSIONS WHICH WERE ACCEPTED BY HIM AND ACCORDINGLY THE LD. CIT(A) ALLO WED THE CLAIM OF THE ASSESSEE VIDE PARA 6 OF HIS ORDER. 5. THE LD. DR, MR. TARSEM LAL, APPEARING FOR THE RE VENUE ARGUED THAT THE ASSESSEE HAS SOLD THE HOTEL KOHINOOR, NOT ONLY THE SUPER STRUCTURE BUT AS WELL AS THE LAND ATTACHED THERETO. EVEN IF THE ARG UMENTS OR EXPLANATION OF THE ASSESSEE BEFORE THE LD. CIT(A) ARE TAKEN AS COR RECT THAT THE ASSESSEE HAD SOLD ONLY THE SUPER STRUCTURE THEN PURCHASER IS VE STED WITH THE ABSOLUTE RIGHT OF THE SUPER-STRUCTURE. UNDER THAT CIRCUMSTANCES, T HE SELLER DOES NOT HAVE ANY RIGHT IN THE LAND BENEATH SUPER STRUCTURE AND IMPLI EDLY THE LAND IS ALSO SOLD ALONG WITH SUPER STRUCTURE TO THE PURCHASER. THIS F ACT HAS BEEN CONFRONTED BY THE SELLERS SON WHO WAS AVAILABLE WHEN THE INSPECT OR OF THE INCOME TAX VISITED THE ASSESSEES PLACE, WHO HAD CONFIRMED THE SAID FACT. THE SUB- REGISTRAR, DALHOUSIE HAS ALSO SUBMITTED REPORT ON 1 4.11.2010. THEREFORE, THE LD. DR SUPPORTED THE ORDER OF THE A.O. AND PRAY ED TO REVERSE THE ORDER OF THE LD. CIT (A). 6. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE, SH. PADAM BAHL, ARGUED ON THE SIMILAR LINES, AS SUBMITTED BEFORE TH E LD. CIT(A) AND THE SAID SUBMISSIONS ARE AVAILABLE IN PARA 5 AT PAGES 3 TO 6 OF CIT(A)S ORDER. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY RELIED UPON T HE ORDER OF THE LD. CIT(A) ITA NO.405(AS)/2011 5 AND FURTHER ARGUED THAT SECTION 50C(1) WAS NOT AVAI LABLE IN THE PRESENT CASE SINCE THE WORD ASSESSABLE HAS BEEN INTRODUCED BY THE FINANCE (NO.2) ACT, 2009 W.E.F. 1.10.2009. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ARGUMENTS MADE BY THE LD. DR MR. TARSEM LAL, AP PEARS TO BE CONVINCING THAT WHEN SUPER STRUCTURE IS SOLD BY THE ASSESSEE ON WHICH THE PURCHASER HAD ACQUIRED THE ABSOLUTE INTEREST AND TH E POSSESSION HAS BEEN TAKEN OF THE SUPER STRUCTURE AND THE LAND AS WELL T HEN THE SELLER DOES NOT HAVE ANY RIGHT IN THE LAND. THERE IS NO DISPUTE TO THE F ACT WHATEVER THE CONSIDERATION IS PASSED ON TO THE ASSESSEE HAS TO B E TAKEN AS CORRECT CONSIDERATION, IN THE ABSENCE OF ANY DIFFERENT CONS IDERATION, BROUGHT ON RECORD BY THE REVENUE. THE VALUATION REPORT BY THE VALUER IS UNDER SECTION 50C(1) OF THE ACT HAS TO BE IGNORED, WHERE WORD AS SESSABLE HAS BEEN INTRODUCED BY THE FINANCE (NO.2) ACT, 2009 W.E.F. 1 .10.2009 I.E. SECTION 50C DOES NOT HAVE ANY APPLICABILITY IN THE PRESENT CASE. THEREFORE, IN THE CIRCUMSTANCES AND FACTS AND IN THE ABSENCE OF ANY D OCUMENTARY EVIDENCE AGAINST THE ASSESSEE, THE SALE CONSIDERATION DECLAR ED AND IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT, IN THE CASE OF K.P. VARGHESE VS. INCOME TAX OFFICER & ANR. REPORTED IN 131 ITR 597 ( SC), THE SALE CONSIDERATION DECLARED IN THE SALE DEED CAN NOT BE DISTURBED BY THE A.O. ITA NO.405(AS)/2011 6 THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). THUS, ALL THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 16TH MARCH, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16TH MARCH , 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:SMT. BALJINDER KAUR, ASR. 2. THE ITO WARD 4(1), ASR 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.