Neelam Sharma, Noida V. ITO, Noida

ITA 4564/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7025 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 02-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 26-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MADAN DOGRA
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C; 148

Judgement Text

I.T.A .NO.-4564/DEL/2016 NEELAM SHARMA VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-4564/DEL/2016 (ASSESSMENT YEAR-2007-08) NEELAM SHARMA, B-95, SECTOR-39, NOIDA-201301 PAN-AROPS0549M ( APPELLANT) VS ITO, WARD-2(3), NOIDA. (RESPONDENT) ASSESSEE BY SH.MADAN DOGRA, CA REVENUE BY NONE DATE OF HEARING 02 . 11 .2016 DATE OF PRONOUNCEMENT 12.01.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 14.06.2016 OF CIT(A)-I, NOIDA PERTAININ G TO 2007-08 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NO.-2 WHEREIN IT IS AGITAT ED THAT THE COMMISSIONER(APPEALS) WHILE PASSING THE ORDER FAILED TO DECIDE GROUND NO.3 BEFO RE HIM. 2. AN ADJOURNMENT PETITION HAS BEEN MOVED ON BEHALF OF THE REVENUE STATING THAT THE LD. SR. DR IS ON LEAVE. CONSIDERING THE MATERIAL AVAIL ABLE ON RECORD AND THE SUBMISSIONS OF THE LD. AR, THE ADJOURNMENT REQUEST WAS REJECTED. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IN THE YEAR UNDER CONSIDERATION DECLARED A N INCOME OF RS.1,57,025/-. AFTER ISSUANCE OF NOTICE U/S 148 OF THE I.T. ACT, 1961, T HE AO PASSED AN ORDER U/S 147/143(3) HOLDING THAT THE SPECIFIC PROPERTY NO.B-95, SECTOR- 39, NOIDA WAS SOLD ON 15.06.2006 MADE AN ADDITION U/S 50C OF RS.18,17,550/- CONSIDERING T HE STAMP DUTY DIFFERENCE ON THE SAID DATE. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. RELYING ON THE SUBMISSIONS BEFORE THE AO, IT WAS SUBMITTED THAT T HE PROPERTY STOOD TRANSFERRED ON 25.06.1999 AND ONLY THE SALE DEED WAS REGISTERED ON 25.06.2006. IT WAS SUBMITTED THAT THE NOIDA AUTHORITIES ALLOTTED RESIDENTIAL PLOT NO.95 ( AREA MEASURING 162 SQ. MTRS.), BLOCK-B, SECTOR-39, NOIDA, GAUTAM BUDHA NAGAR, U.P TO SH. J. K.AGGARWAL. THE ALLOTMENT IT WAS STATED WAS CONDITIONAL AND AMONG THE VARIOUS CONDIT IONS THERE WAS A CONDITION THAT THE SAID ALLOTMENT WILL NOT BE ELIGIBLE FOR TRANSFER UP TO A CERTAIN PERIOD. THE ALLOTMENT IT WAS PAGE 2 OF 3 I.T.A .NO.-4564/DEL/2016 NEELAM SHARMA VS ITO SUBMITTED WAS BY WAY OF A LEASE AND NOT BY SALE. T HE ALLOTTEE, IT WAS SUBMITTED ENTERED INTO AN AGREEMENT TO SELL IN FAVOUR OF SH. N.K.SHARMA, H USBAND OF THE ASSESSEE. APART FROM THAT, THE ALLOTTEE ALSO EXECUTED THE GENERAL OF POWER OF ATTORNEY IN RESPECT OF SAID PLOT IN FAVOUR OF THE ASSESSEE; A SPECIAL POWER OF ATTORNEY IN FAVOUR OF THE ASSESSEE AND ALSO A WILL BEQUEATHING THE SAID PLOT IN FAVOUR OF THE SH. N.K. SHARMA I.E THE HUSBAND OF THE ASSESSEE. CONSIDERING THE SUBMISSIONS, THE CIT(A) CONCLUDED T HAT THE SH.J.K.AGGARWAL WAS NOT THE OWNER OF THE PLOT AND THUS HE COULD NOT HAVE SOLD T HE PLOT. THUS, AGREEMENT TO SELL DATED 25.06.1999 EXECUTED BY SH.J.K. AGGARWAL IN FAVOUR O F SH. N.K.SHARMA, IT WAS CONSIDERED HAD NO MEANING IN LAW AS HE WAS ONLY A LEASE HOLDER AND AS A RESULT, THE ADDITION WAS CONFIRMED. THE ASSESSEE IS IN APPEAL BY THE SAID ORDER. 3. THE LD.AR APPEARING ON BEHALF OF THE ASSESSEE SU BMITTED THAT THE CONCLUSION DRAWN BY THE CIT(A) THAT SH.J.K.AGGARWAL HAD NO AUTHORITY TO ENTER INTO AN AGREEMENT TO SELL WAS WRONG AND IF IT WAS TRUE THEN HOW THE NOIDA AUTHOR ITIES HAVE TRANSFERRED THE SAID PLOT IN THE NAME OF SH.N.K.SHARMA. ACCORDINGLY, IT WAS HIS PRA YER THAT THE IMPUGNED ORDER BE SET ASIDE NOT ONLY ON THE GROUND THAT GROUND NO.3 BEFORE THE CIT(A) HAS NOT BEEN DECIDED WHICH IS GROUND NO.2 IN THE PRESENT PROCEEDINGS BUT ALSO ON THE GROUND THAT THERE ARE FACTUAL INACCURACIES AND WRONG PRESUMPTIONS DRAWN BY THE CI T(A). 4. I HAVE HEARD THE SUBMISSIONS OF THE LD.AR AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. I FIND THAT THE LD. COMMISSIONER WHILE CON SIDERING THE ISSUES BEFORE HIM MIS-DIRECTED HIMSELF IN DRAWING THE CONCLUSION. THE PRIMARY DOC UMENT I.E. THE ALLOTMENT LETTER OF NOIDA AUTHORITY IN FAVOUR OF THE ASSESSEE/SH.N.K.SHARMA I S REQUIRED TO BE SEEN AND CONSIDERED. IN CASE THE TAX AUTHORITIES WANTED TO ASCERTAIN THE ST ATUS OF SH.J.K.AGGARWAL WHO EXECUTED THE AGREEMENT TO SELL; G.P.A AND SPA ALONGWITH WILL IN FAVOUR OF THE ASSESSEE/AND OR HIS WIFE EXHIBITING HIS INTENT TO TRANSFER THE LEASEHOLD RIG HTS OF THE SPECIFIC PROPERTY THEN ENQUIRY EITHER FROM NOIDA AUTHORITY OR THE PRIMARY DOCUMENT SHOULD HAVE BEEN CONSIDERED. THE ISSUE FOR CONSIDERATION BEFORE THE LD. COMMISSIONER WAS WHETH ER ADDITION RESORTING TO SECTION 50C WAS MAINTAINABLE OR NOT IN VIEW OF THE PECULIAR FAC TS THAT THE SPECIFIC PROPERTY ON PAYMENT OF PAGE 3 OF 3 I.T.A .NO.-4564/DEL/2016 NEELAM SHARMA VS ITO RS.7,50,000/- WAS ALLEGEDLY SOLD ON 25.06.1999. IN SUPPORT OF THE SAID CLAIM, AGREEMENT TO SELL WAS RELIED UPON BY THE ASSESSEE. THE ASSESSEE HAS STATED THAT THE TRANSFER WAS EFFECTED ON THE EXPIRY OF THE SPECIFIC PERIOD WHICH BANNED T HE SALE OF THE ALLOTTED PROPERTY AS A RESULT OF THIS BAN THE REGISTRATION OF THE SALE WAS CONCLU DED ON 15.06.2006 BY THE ASSESSEES WIFE AS GPA HOLDER OF SH.N.K.SHARMA. THE FACT THAT THE SALE CONSIDERATION TO SH. J.K.AGARWAL WAS MADE ON 25.06.1999 AND THUS WHETHER ADDITION U/ S 50C IN THE CIRCUMSTANCES WAS MAINTAINABLE OR NOT, IT IS SEEN REMAINS UNDECIDED. THE ISSUE WHETHER SH.J.K.AGGARWAL HAD ANY RIGHT TO EXECUTE THE AGREEMENT TO SELL. GPA, S PA ETC. WAS NOT AN ISSUE FOR CONSIDERATION BEFORE THE CIT(A). AS NOTED EVEN IF THIS FACT WAS CONSIDERED TO BE A RELEVANT FACT FOR DETERMINING THE MAINTAINABILITY OF THE ADD ITION U/S 50C THEN THE PRIMARY DOCUMENTS SHOULD HAVE BEEN SOUGHT FROM THE NOIDA AUTHORITY. MOREOVER, THE FACT THE GROUND NO.3 REMAINED UNDECIDED IS EVIDENT ON RECORD. ACCORDIN GLY, IN THE ABSENCE OF ANY REPRESENTATION ON THE PART OF THE REVENUE TO DEFEND THE ORDER AND CONSIDERING THE SHORT-COMINGS IN THE IMPUGNED ORDER, THE ISSUE IS SET ASIDE BACK TO THE FILE OF THE AO AS REQUIRED DIRECTING THE SAID AUTHORITY TO PASS A SPEAKING ORDER IN ACCORDANCE WI TH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IF NEED BE, THE ASSESSEE WOULD BE AT LIBERTY TO FILE FRESH EVIDENCE IN SUPPORT OF ITS CLAIM. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 12 TH OF JANUARY, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI