ITO, CHITTORGARH V. Smt. Kanku Bai Mali W/o Sh. Heera Lal Mali, CHITTORGARH

ITA 445/JODH/2013

• Counselvise Citation: 44523314 RSA 2013
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-03-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 02-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: S K GANGWANI
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 143(3); 50C; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 445/JU/2013 ASSESSMENT YEAR: 2005-06 THE INCOME-TAX OFFICER VS. SMT. KANKU BAI MALI WARD 1, KILA ROAD W/O SHRI HEERA LAL MALI CHITTORGARH NAER HEERA VATIKA NEW CLOTH MARKET CHITORGARH PAN NO. APOPM 6857 L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.K.GANGWANI DEPARTMENT BY : SHRI N.A JOSHI, DR DATE OF HEARING : 03.03.2014 DATE OF PRONOUNCEMENT : 05.03.2014 ORDER PER HARI OM MARATHA, J.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE CIT(A), UDAIPUR, DATED 12.06.2013 FOR A.Y 2005-2006. 2 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS REGARD ING THE TREATMENT GIVEN TO THE AMOUNT OF LONG TERM CAPITAL GAIN [LTCG, FOR SHORT] ARISING ON THE SALE OF CAPITAL AS SET WHICH, ACCORDING TO THE REVENUE SHOULD BE AT RS. 18,92,550/- AND AS PER THE ASSESSEE IT SHOULD BE AT RS. 3,52,173/-. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED HIS RETURN OF INCOME FOR THIS A.Y. A ND ASSESSMENT WAS COMPLETED BUT SUBSEQUENTLY, IT WAS REOPENED U/S 147 R.W.S 143(3) OF THE INCOME-TAX ACT , 1961 [HEREINAFTER REFERRED TO AS 'THE ACT', FOR SHORT]. THE TOTAL INCOME OF THE ASSESSEE OF HIS YEAR WAS DETERMINED A T RS. 18,94,275/- VIDE ORDER DATED 16.8.2007. AGGRIEVED, THE ASSESSEE FILED APPEAL AND THE LD. CIT(A) HAS GIVEN PART RELIEF TO THE ASSESSEE. THE DEPARTMENT FILED APPEA L AND THE APPELLATE TRIBUNAL, VIDE ITS ORDER PASSED IN IT A NO. 462/JU/2008 DATED 23.2.2009 SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATER BACK TO THE ASSES SING AUTHORITY. 3 3.1 THE A.O. HAS COMPLETED THE SET ASIDE ASSESSMENT ORDER BY DETERMINING THE LTCG ARISING ON THE SALE OF PLOTS BY THE ASSESSEE AT RS. 18,92,550/- BY PLACING RELIA NCE ON HIS PREDECESSOR ORDER, WHICH HE TOOK IN THE FIRST ROUND. NOW THE REVENUE IS AGAIN AGGRIEVED AND HAS COME IN THE SECOND APPEAL BEFORE US. 4. THE FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVENUE: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN: 1. NOT UPHOLDING THE ACTION OF THE AO IN DETERMIN ING THE LONG TERM CAPITAL GAIN ON SALE OF PROPERTY AT R S. 18, 92,550/- AS AGAINST RS, 3, 52,173/-DECLARED BY THE ASSESSEE IN HER RETURN OF INCOME FILED ONLY AFTER I SSUE OF NOTICE U/S148 OF THE IT. ACT. 2. IGNORING THE VITAL FACTS THAT THE ASSESSEE, WH O IS THE CO-OWNER HAVING 50% SHARE OF THE PROPERTY, HAS SHOW N LONG TERM CAPITAL GAIN ON SALE OF PROPERTY AT RS. 3 ,52, 173/- ONLY AS AGAINST THE LONG TERM CAPITAL GAIN OF RS. 4 18, 92, 550/- SHOWN BY THE OTHER CO-OWNER HAVING EQ UAL SHARE OF THE PROPERTY AND THEREFORE CLAIM OF ASSESS EE IS INCORRECT. 3. IGNORING THE FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS FAILED TO PRODUCE THE COGENT MATERIAL AND DOCUMENTARY EVIDEN CE BEFORE THE AO TO PROVE HER CLAIM THAT THE COST OF ACQUISITION OF THE LAND UNDER HER OWNERSHIP WAS MOR E THAN THE COST OF ACQUISITION UNDER THE OWNERSHI P OF THE OTHER CO-OWNER AND THEREFORE, THE DECLARATION OF LONG TERM CAPITAL ON SALE OF PROPERT Y AT RS. 3, 52, 173/- ONLY, AS AGAINST THE LONG TERM CAP ITAL GAIN OF RS. 18,92,550/- SHOWN BY THE OTHER CO-OWNE R HAVING EQUAL SHARE OF THE PROPERTY, IS TOTALLY INCORRECT. 4. IGNORING THE FACT THAT THE AO HAS ADOPTED THE SALE CONSIDERATION IN THE ASSESSEE'S CASE IN TERMS OF TH E PROVISIONS OF SECTION 50C OF THE IT. ACT. ON THE BA SIS OF DECLARATION BY THE OTHER CO-OWNER IN HIS RETURN OF INCOME ON THE BASIS OF DLC RATE ADOPTED BY THE REGISTERING AUTHORITY WHICH IS CORRECT AND HENCE TH E SAME OUGHT TO HAVE BEEN UPHELD BY THE ID.CIT(A). 5 THAT THE APPELLANT CRAVES TO ADD, AMEND, ALTER, DEL ETE OR MODIFY ANY OR ALL THE ABOVE GROUNDS OF APPEAL BE FORE OR AT THE TIME OF HEARING. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. A FTER HEARING BOTH THE SIDES, IT IS FOUND THAT THE ASSESS EE INHERITED THE PROPERTY FROM HER HUSBAND WHICH HE AC QUIRED BY BIRTH AND AFTER HIS DEMISE, ALONGWITH HER SON, S HE BECAME THE OWNER OF THE PLOTS. IN THE FIRST ROUND, THE TRIBUNAL HAS GIVEN THE FOLLOWING DIRECTIONS TO THE A.O., WHILE RESTORING THE MATTER BACK TO HIS FILE: WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE ENTI RE MATERIAL ON RECORD WITH REFERENCE TO SUB-RULE (6) O F RULE 18 OF THE APPELLATE TRIBUNAL RULES. THE FACTS AS TO THE ORIGINAL OWNERSHIP, DATE OF ACQUISITION OF THE PREVIOUS OWNER, COST OF ACQUISIT ION AND TRANSFER OR VESTING OF PROPERTY IN THE APPELLAN T IS NEITHER AVAILABLE ON RECORD NOR SHOWN TO HAVE BEEN ENQUIRED BY THE LD. CIT(A) BEFORE ACCEPTING THE COS T AS 6 ON 1.4.81 AND APPLYING INDEXED COST THEREON FOR COMPUTING INCOME FROM LONG TERM CAPITAL GAINS. THE PARTIES BEFORE US ARE ALSO NOT PRECISELY ABLE TO ST ATE THESE FACTS AND SHOW AS TO HOW AND WHEN THE PROPERT Y WAS ACQUIRED BY THE ASSESSEE OR BY THE DECEASED FRO M WHOM THE PROPERTY IS CLAIMED TO HAVE BEEN PASSED ON TO HER. THESE FACTS WERE NECESSARY BEFORE ACCEPTING TH E CLAIM OF LONG TERM CAPITAL GAINS AND ALSO FOR COMPU TING CORRECT ASSESSABLE INCOME, THE ID. CIT(A) HOWEVER, COMMITTED LAPSE IN BRING ON RECORD THESE REQUISITE FACTS BEFORE ACCEPTING THE CLAIM OF THE ASSESSEE. WE, THEREFORE, CONSIDER IT REASONABLE AND JUST TO SET A SIDE THE IMPUGNED ORDER AND RESTORE THE MATER BACK TO TH E ASSESSING AUTHORITY SO THAT COMPLETE AND CORRECT FA TS AS STATED HEREIN ABOVE ARE SET OUT ON RECORD AND CLAIM OF THE ASSESSEE IS CONSIDERED IN ACCORDANCE WITH THE L AW FOR COMPUTING CORRECT ASSESSABLE INCOME IN HER HAND S. HOWEVER, IT IS SEEN THAT THE A.O. HAS COMPLETED THE SET ASIDE ORDER REPEATED THE SAME LTCG WHICH HE HAD ARR IVED IN THE FIRST ROUND SIMPLY BY FOLLOWING THE EARLIER ASSESSMENT ORDER AND HAS NOT CARRIED OUT AND COMPLI ED WITH THE DIRECTIONS OF THE TRIBUNAL. AS HAS BEEN PO INTED OUT BY THE LD. CIT(A), THE TRIBUNAL IN ITS ORDER DA TED 7 23.2.2009 PASSED IN ITA NO. 462/JU/2008 HAS GIVEN A FINDING THAT THE OWNERSHIP OF THE PROPERTY UNDER CONSIDERATION, DATE OF ACQUISITION OF THE PROPERTY, AND TRANSFER OR VESTING OF THE PROPERTY IN THE APPELLAN TS HANDS IS NEITHER AVAILABLE NOR SHOWN TO HAVE BEEN ENQUIRE D. OTHER FINDINGS OF THE TRIBUNAL ARE INCORPORATED IN THE ABOVE PARA. THE A.O. HAS NOT BROUGHT ANY NEW FACTS IN COMPLIANCE OF THE DIRECTIONS OF THE TRIBUNAL. THE MATERIAL RELIED ON BY THE ASSESSEE HAVE NOT BEEN REBUTTED BY THE A.O. WITH PROOF OR REASONS. THE COST TAKEN BY THE SUB- REGISTRAR AS VALUE FOR REGISTRATION PURPOSES AS ON 1.4.1981 HAS BEEN CONSIDERED THE VALUE RECEIVED BY THE ASSES SEE HAS NOT BEEN CONSIDERED NOR REBUTTED BY THE A.O. T HE FACT THAT THIS PROPERTY WAS INHERITED BY THE APPELL ANT ALONG WITH HER SON HAS NOT BEEN DISPUTED BY THE DEPARTMENT. THE A.O. HAS NOT COMMENTED ON THE DOCUMENTS/PROOF SUBMITTED REGARDING COMPARABLE CASE S FILED IN SUPPORT OF ADOPTION OF ACQUISITION COST OF THE PROPERTY. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE DIRECTION OF THE LD. CIT(A) TO THE A.O. TO CALCULAT E CAPITAL 8 GAINS ON THE BASIS OF COST OF ACQUISITION DECLARED BY THE ASSESSEE AS ON 1.4.1981 AND TO ALLOW RESULTANT RELI EF. EVEN BEFORE US, NO INFIRMITY HAS BEEN POINTED OUT I N THE FINDING OF THE A.O. THEREFORE, WE CANNOT ALLOW THIS APPEAL OF THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 05.03.2014. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05 TH MARCH, 2014 VL/- COPY TO: THE APPELLANT THE RESPONDENT THE CIT BY ORDER THE CIT(A) THE DR ASSISTANT REGISTRAR ITAT, JODHPUR