SMT CHATRU BAI, Jaipur V. ITO, Kota

ITA 478/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2073 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Charitable institution
• Section: 54B; 142(1); 234B; 147; 148; 10

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 478/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SMT. CHATRU BAI W/O LATE SHRI NATHU LAL VILLAGE: BORKHERA,TEHSIL: LADPURA, KOTA CUKE VS. THE ITO WARD- 2(3), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AWVPB 8125A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI SHRAWAN KUMAR GUPTA, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17/01/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 19 /02/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A), KOTA DATED 25-03-2014 FOR THE ASSESSMENT YEAR 2008-09. THE LD.AR OF THE ASSESSEE VIDE APPLICATION DATED 11-01- 2018 SUBMITTED THE REVISED GROUNDS OF APPEAL AS UNDER:- 1.1. THE IMPUGNED ORDER U/S 144/148 DATED18-03-20 14 IS BAD IN LAW AND ON FACTS OF THE CASE FOR WANT OF JUR ISDICTION, BARRED BY LIMITATION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY KINDLY BE QUASHED. ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 2 1.2 THE ACTION TAKEN U/S 147 IS BAD IN LAW AND ON FACTS OF THE CASE FOR WANT OF JURISDICTION AND VARI OUS OTHER REASONS AND HENCE THE SAME MAY KINDLY BE QUASHED. 2. THE AO HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN PASSING THE EX-PARTIE ASSE SSMENT ORDER WITHOUT PROVIDING THE ADEQUATE AND REASONABLE OPPOR TUNITY OF BEING HEARD IN GROSS BREACH OF LAW. HENCE, THE O RDER SO PASSED MAY KINDLY BE QUASHED AND THE ADDITIONS SO M AY KINDLY BE DELETED IN FULL. 3.1 RS. 35,06,490/-: THE CIT HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THECAE IN SUSTAINING THE ADDITION OF RS. 34,06,490/- ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURE LAND AND THE AO AND LD. CIT(A) BOTH ALSO ERRED IN TAKING THE HIGHER VALUE ADOPTED BY THE STAMP AUTHORITY IN PLACE OF ACTUAL SALE CONSIDERATI ON MENTIONED IN SALE DEED AND RECEIVED BY THE ASSESSEE WHILE DETERMINING THE LTCG. HENCE, THE ADDITION SO MADE B Y THE AND CONFIRMED BY THE LD. CIT(A) IS BEING TOTALLY CO NTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND H ENCE THE ADDITION MAY KINDLY BE DELETED IN FULL. 3.2 THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN NOT ALLOWING THE DED UCTION U/S 54B ON THE PURCHASE OF NEW ASSETS FOR WHICH THE ASS ESSEE IS ENTITLED. HENCE, THE DEDUCTION SO DENIED BY THE AO AND THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE PROVISI ONS OF LAW AND FACTS ON THE RECORD AND HENCE THE ADDITION MAY KINDLY BE DIRECTED TO ALLOW THE SAME. 4.0 THE LD. AO HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CHARGING INTEREST U/S 2 34A, 234B & 234C. THE APPELLANT TOTALLY DENIES IT LIABILITY O F CHARGING OF ANY SUCH INTEREST. THE INTEREST SO, CHARGED, BEI NG CONTRARY TO THE PROVISIONS OF LAW AND FACTS, MAY KINDLY BE D ELETED IN FULL. ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 3 2.1 AT THE OUTSET OF THE HEARING, THE BENCH OBSERVE D THAT THE APPEAL FILED BY THE ASSESSEE IS LATE BY 1101 DAYS FOR WHIC H THE LD. AR OF THE ASSESSEE FILED THE APPLICATION FOR CONDONATION OF D ELAY WITH FOLLOWING PRAYERS. 1. IT IS SUBMITTED THAT THE APPLICANT IS AN INDIVI DUAL AND NOT INCOME TAX ASSESSEE. SHE IS ILLITERATE AND WIDO W LADY. IN THIS CASE, THE ASSESSMENT WAS COMPLETED ON 20-12-20 10 U/S 144/148 FOR AYY2008-09 AGAINST WHICH THE ASSESSEE H AD FILED THE APPEAL BEFORE THE LD. CIT(A), KOTA, WHO HAS DEC IDED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 25-03-2014. HENCE, THE APPEAL WAS TO BE FILED ON OR BEFORE IST JUNE, 2 014 BUT THE SAME IS BEING FILED AROUND 3 YEARS LATE. 2. AS STATED BY THE ASSESSEE THE REASON FOR LATE FI LING WAS THAT THE ORDER WAS RECEIVED BY THE COUNSEL OF THE A SSESSEE WHO WAS AT KOTA, WHO HAS SENT THE ORDER TO THE ASSE SSEE. THE ASSESSEE IS ILLITERATE WIDOW LADY.SHE LIVES ALONE A ND NOT KEEPING WELL AND SUFFERING FROM VARIOUS DISEASES. T HE ASSESSEE COULD NOT UNDERSTAND ABOUT THE RESULT OR M EANING OF ORDER. THE CHILDREN OF THE ASSESSEE WERE ALSO NOT M UCH LITERATE AND NOT GIVING ANY ATTENTION TOWARDS THE A SSESSEE. HOWEVER, WHEN THE RECENTLY THE TAX RECOVERY OFFICER CALLED TO THE ASSESSEE REGARDING THE DEMAND AND PENALTY AN D TOLD THE ASSESSEE THAT YOUR APPEAL HAS BEEN DISMISSED BY THE LD. CIT(A), KOTA AND YOU SHOULD FILE THE SECOND BEFORE THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR WITH THE COND ONATION OF DELAY. THEREAFTER THE ASSESSEE CONTACTED TO THE VAKIL/CA WHO GAVE DIFFERENT OPINION. AT LAST THE ADVOCATE AF TER HEARING THE FACTS AND CIRCUMSTANCES ADVISED TO FILE THE APPEAL IMMEDIATELY LOOKING TO THE NATURE OF ADDITIONS AND RECORD AND ON THE EXPERIENCE OF SUBSTANTIAL RELIEF. THUS D UE TO THE ABOVE REASON, THE APPEAL COULD NOT BE FILED WITHIN TIME WHICH WAS NOT INTENTIONAL AND WAS BEYOND THE CONTRO L OF THE ASSESSEE. IN SUPPORT OF THE SAME, THE ASSESSEE FILE D HER ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 4 AFFIDAVIT NARRATING THE REASONS FOR NOT FILING THE APPEAL IN TIME. 3. THE LD.AR OF THE ASSESSEE RELIED ON VARIOUS CASE LAWS INCLUDING THE DECISION OF HON'BLE APEX COURT IN THE CASE OF COLLECTOR, LAND & ACQUISITION VS MST. KATIJI & OTHE RS (1987) 167 ITR 471 (SC) 2.2 THE BENCH HAS HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. TAKING INTO CONSIDER ATION THE FACTS AND CIRCUMSTANCES OF THE CASE NARRATED BY THE ASSESSEE, IT IS OBSERVED THAT THERE IS SUFFICIENT CAUSE IN PREVENTING THE ASSESSE E TO FILE THE APPEAL IN TIME. HENCE, THE DELAY IN FILING THE APPEAL BY THE ASSESSEE IS CONDONED. 3.1 APROPOS GROUND NO. 1.1, 1.2 AND 2 OF THE ASSES SEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UND ER:- 5.32.THE ASSESSEE CHALLENGED REOPENING OF THE ASSESSMENT U/S 148 ON THE GROUND THAT NO NOTICE WAS SERVED ON THE ASSESSEE AND THAT NOTICES WERE NOT ISSUED ON CORRECT ADDRESS OF THE ASSESSEE. IT WAS ALSO PLEADED THAT T HE SAME AO PASSED ASSESSMENT ORDERS IN THE CASE OF ASSESSEE AN D THE FACT OF NEW ADDRESS OF AKSHARDHAM COLONY WAS ACKNOWLEDGE D BY AO. I HAVE GONE THROUGH THE CASE RECORD AND IT WAS SEEN THAT NOTICE U/S 148 WAS SERVED ON SHRI JITENDRA KUS HWAH ON THE LAST KNOWN ADDRESS OF THE ASSESSEE. SHRI JITEND RA KUSHWAH IS SON OF ASSESSEE. ON A SUBSEQUENT OCCASION, THE AO TRIED TO SERVE THE NOTICE U/S 142(1) THROUGH POLICE. IN THE REPORT SUB MITTED BY ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 5 CIRCLE INCHARGE OF THE LOCAL POLICE STATION, IT WAS STATED THAT ON THE GIVEN ADDRESS, ELDER SON OF ASSESSEE, SHRI H ANUMAN WAS PRESENT WHO STATED THAT THEIR MOTHER HAS GONE SOMEWHERE FOR LAST 10-11 MONTHS, WITHOUT INTIMATING THEM AND THE NOTICE WAS SERVED ON HIS SON. IN THE OF THE ABOVE, I AM OF THE OPINION THAT THE ASSESSEE DELIBERATELY AVOIDED SERVICE OF NOTICE. NO W THE QUESTION ARISES WHETHER SERVICE OF NOTICE ON ELDERS SON OF ASSESSEE CAN BE TREATED AS PROPER SERVICE OR NOT. SERVICE OF NOTICE IS TO BE MADE AS PER SECTION 282 OF THE I.T. ACT. SECTION 282 PROVIDES THAT PERSONAL S ERVICE OF NOTICE IS TO BE MADE IN A MANNER PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908, SUB-RULE 15 OF CODE OF CIVIL PROCEDURE, RELATED TO SERVICE OF NOTICE PROVIDED AS UNDER:- WHERE IN ANY SUIT, THE DEFENDANT IS ABSENT FROM HIS RESIDENCE AT THE TIME WHEN THE SERVICE OF SUMMONS IS SOUGHT TO BE EFFECTED ON HIM AT HIS RESIDENCE AND THERE IS NO LIKELIHOOD OF HIS BEING FOUND AT THE RESIDENCE WITHIN A REASONABLE TIME AND HE HAS NO AGENT EMPOWERED TO ACCEPT SERVICE OF THE SUMMONS ON HIS BEHALF, SERVICE MAY BE MADE ON ANY ADULT MEMBER OF THE FAMILY, WHETHER MALE OR FEMALE, WHO IS RESIDING WITH HIM. FROM THE ABOVE, IT CAN BE CONCLUDED THAT ASSESSEE W AS NOT AVAILABLE ON THE GIVEN ADDRESS AND THAT SHE HAD NOT APPOINTED ANY AGENT FOR RECEIVING NOTICES AND THAT THERE WAS NO LIKELIHOOD OF HER BEING FOUND AT THE RESIDENCE W ITHIN A REASONABLE TIME. THEREFORE, SERVICE OF NOTICE ON TH E ADULT SON OF ASSESSEE HAS TO BE TREATED AS PROPER SERVICE OF NOTICE. THIS GROUND OF APPEAL IS THEREFORE, DISMISSED. ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 6 3.2 THE BENCH HAS HEARD BOTH THE PARTIES AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. DURING THE COURSE OF HEARING, THE BENCH NOTED THAT THE LD.AR OF THE ASSESSEE COULD NOT ADVANCE ANY CON TRARY MATERIAL AGAINST THE ORDER OF THE LD. CIT(A). HENCE, FOR WANT OF ANY CONTRARY MATERIAL AGAINST THE ORDER OF THE LD. CIT(A), THE BENCH DECL INES TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) ON THE ISSUES RAISED AS GROUND NO. 1.1, 1.2 AND 2 ABOVE BY THE LD.AR OF THE ASSESSEE WHICH AR E DISMISSED. 4.1 APROPOS GROUND NO. 3.1 & 3.2 OF THE ASSESSEE, T HE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UND ER:- THE ASSESSEE CLAIMED THAT HE HAS INVESTED THE SAL E PROCEEDS IN THE PROPERTY AND THEREFORE, EXEMPTION U /S 54B SHOULD BE ALLOWED. IT WAS SEEN THAT THE ASSESSEE HAS PURCHASED THE PROPERTY IN THE NAME OF HER SONS, SHRI JITENDRA KUM AR KUSHWAH AND SHRI HANUMAN PRASAD KUSHWAH. THE ASSESS EE PLACED ITS RELIANCE ON VARIOUS JUDGEMENTS, HOWEVER, THE FACTS OF THE CASES WERE DIFFERENT, IN THE CASE (327 ITR 2 78), LAND WAS PURCHASED IN JOINT NAME WHEREAS IN THE CASE OF ASSESSEE, THE LAND WAS PURCHASED SOLELY IN THE NAME OF ASSESS EE'S SONS. THE OTHER CASES WERE NOT RELATED TO SECTION 54B. TH EREFORE, I AM OF THE OPINION THAT THE ASSESSEE CAN CLAIM RELIE F U/S 54B ONLY WHEN THE LAND WAS PURCHASED IN HIS/ HER NAME, THEREFORE, THE ASSESSEE WAS NOT ENTITLED FOR BENEFI T U/S 54B. THIS GROUND OF APPEAL IS THEREFORE, DISMISSED. ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 7 4.2 DURING THE COURSE OF HEARING THE LD.AR OF THE A SSESSEE PRAYED FOR DELETION OF ADDITION OF RS. 34,06,490/-SUSTAINED BY THE LD. CIT(A). DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE FI LED THE WRITTEN SUBMISSION WHICH HAS BEEN TAKEN INTO CONSIDERATION WHILE ADJUDICATING THIS GROUND OF APPEAL OF THE ASSESSEE. 4.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A). 4.4 THE BENCH HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE AVAILABLE RECORDS THAT THE ASSESSEE HAD SOLD AGRICULTURE LAND WITH OTHER CO- OWNERS FOR THE CONSIDERATION AT RS.22,00,000/- AND THE STAMP DUTY AUTHORITY FOR THE PURPOSE OF STAMP DUTY HAD TAKEN THE VALUE OF THE SA ME AT RS.49,50,000/-. THE AO HAD ALSO ADOPTED THE SAME VALUE AND CALCULAT ED THE LTCG AT RS. 34,06,490/- VIDE PAGE 3 OF THE ASSESSMENT ORDER. IN FIRST APPEAL THE ASSESSEE CHALLENGED THE LTCG AND ALSO PRAYED FOR DE DUCTION U/S 54B. THE LD. CIT(A) HAS DENIED THE DEDUCTION U/S 54B BY OBSERVING THAT THE INVESTMENT IN THE NEW AGRICULTURE LAND HAS BEEN DON E IN THE NAME OF HER SONS SH. JITENDRA KUSHAWAH AND SH. HANUMAN PRASAD. HENCE THE DEDUCTION U/S 54B IS NOT ALLOWABLE AND THE DEDUCTI ON IS ALLOWABLE IN THE ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 8 NAME OF ASSESSEE HERSELF. THE LD. A/R OF THE ASSESS EE HAS DRAWN THE ATTENTION OF THE BENCH TOWARDS COMPUTATION OF TOTAL INCOME PLACED AT PAPER BOOK 103 WHERE THE ASSESSEE CALCULATED THE L TCG AT RS.11,41,272/- AS PER SALE DEED AND CONSIDERATION RECEIVED AND THE ASSESSEE FURTHER CLAIMED DEDUCTION U/S 54B OF RS. 20,19,540/-. THE INVESTMENT IS MADE IN THE NAME OF HER SONS AND CO PY OF SALE DEED ARE PLACED AT PAGES 12 TO 43 OF THE PAPER BOOK. THE LD .AR OF THE ASSESSEE STATED THAT THE ASSESSEE IS A VERY OLD ILLITERATE WIDOW LADY OF 70 YEARS. THE ASSESSEE HAS SOLD THE AGRICULTURE LAND JOINTLY AND THEREAFTER SHE PURCHASED NEW AGRICULTURE LAND IN THE NAME OF HER SONS SH. JI TENDRA AND HANUMAN. THE REASON OF PURCHASING OF NEW LAND IN THE NAME OF HER SONS WAS THAT THE ASSESSEE IS A VERY OLD, ILLITERATE LADY OF 70 Y EARS AND NOT HAVING GOOD HEALTH. HENCE SHE WAS ADVISED BY THE LAWYERS AND RE LATIVES THAT AFTER COMPLETING HER AGE THE PROPERTY AUTOMATICALLY SHAL L GO IN THE HANDS OF HER SONS AS PER LAW OF SUCCESSION AND SHALL TRANS FER IN THEIR NAME OTHERWISE THEY HAVE TO DO MANY LEGAL FORMALITIES AN D TO INCUR EXPENSES. HENCE IN ORDER TO AVOID THE DIFFICULTIES AND EXTRA MONEY BURDEN, SHE WAS ADVISED TO PURCHASE THE PROPERTY IN THE NAME OF HER SONS. THE ASSESSEE BEING A VERY OLD ILLITERATE WIDOW LADY OF 70 YEARS WAS NOT AWARE ABOUT ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 9 THE COMPLEXITY OF INCOME TAX LAWS THAT IS WHY SHE H AD PURCHASED THE NEW AGRICULTURE LAND IN THE NAME OF HER SONS. DURING TH E COURSE OF HEARING, THE LD.AR OF THE ASSESSEE HAS DRAWN THE ATTENTION OF TH E BENCH TO THE RECENT DECISION OF THE HONBLE RAJ. HIGH COURT IN THE CASE OF OF SH. MAHADEV BALAI V/S ITO WARD 7(2), JAIPUR IN DBIT A NO. 136/2 017 DT. 07.11.2017 WHERE IT HAS BEEN HELD AS UNDER:- 7.2 ON THE GROUND OF INVESTMENT MADE BY THE ASSESS EE IN THE NAME OF HIS WIFE, IN VIEW OF THE DECISION OF DE LHI HIGH COURT IN SUNBEAM AUTO LTD. AND OTHER JUDGMENTS OF DIFFERE NT HIGH COURTS, THE WORD USED IS ASSESSEE HAS TO INVEST IT IS NOT SPECIFIED THAT IT IS TO BE IN THE NAME OF ASSESSEE. 7.3 IT IS TRUE THAT THE CONTENTIONS WHICH HAVE BEEN RAISED BY THE DEPARTMENT IS THAT THE INVESTMENT IS MADE BY TH E ASSESSEE IN HIS OWN NAME BUT THE LEGISLATURE WHILE USING LANGUAGE H AS NOT USED SPECIFIC LANGUAGE WITH PRECISION AND THE SECOND REA SON IS THAT VIEW HAS ALSO BEEN TAKEN BY THE DELHI HIGH COURT THAT IT CAN BE IN THE NAME OF WIFE. IN THAT VIEW OF THE MATTER, THE CONTE NTION RAISED BY THE ASSESSEE IS REQUIRED TO BE ACCEPTED WITH REGARD TO SECTION 54B REGARDING INVESTMENT IN TUBEWELL AND OTHERS. IN OUR CONSIDERED OPINION, FOR THE PURPOSE OF CARRYING ON THE AGRICUL TURAL ACTIVITY, TUBEWELL AND OTHER EXPENSES ARE FOR BETTERMENT OF L AND AND THEREFORE, IT WILL BE CONSIDERED A PART OF INVESTME NT IN THE LAND AND SAME IS REQUIRED TO BE ACCEPTED. IT IS ALSO PERTINENT TO MENTION THAT HONBLE RAJ. HIGH COURT IN THE CASE OF LATE MIR GULAM ALI KHAN VS CIT,165 ITR 228 HELD TH AT THE WORD ASSESSEE MUST BE GIVEN A WIDE AND LIBERAL INTERPR ETATION SO AS TO INCLUDE ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 10 HIS LEGAL HEIRS ALSO. IT IS NOTED THAT THE DECISION OF THE HONBLE RAJ. HIGH COURT IN THE CASE OF SHRI MAHADEV BALAI VS ITO (SUP RA) IS ALSO APPLICABLE IN THE PRESENT CASE. THE ASSESSEE BEING A WIDOW LAD Y AND HER SONS ARE ONLY HER LEGAL HEIRS AND THE INVESTMENT MADE BY HER IN THE PROPERTY IN THE NAME OF HER SONS AND AS PER ABOVE DECISION THE CLAI M U/S 54B IS ALLOWABLE. HENCE THE AO IS DIRECTED TO ALLOW THE D EDUCTION U/S 54B OF RS. 2019450/-. IT IS FURTHER NOTED FROM THE AVAILA BLE RECORDS THAT ASSESSEE HAD SOLD THE AGRICULTURE LAND FOR RS.22,00 ,000/- TO M/S. ARIHANT EDUCATIONAL & CHARITABLE TRUST ON 22-02-2008. THE R EGISTRAR OF PROPERTY HAS TAKEN THE VALUE OF SAID PROPERTY FOR THE STAMP DUTY PURPOSE AT RS. 49.50 LACS WHICH APPEARS HIGHER THAN ACTUAL SAL E CONSIDERATION MENTIONED IN THE SALE DEED. THE LD.AR OF THE ASSESS EE RELIED ON THE DECISION OF HON'BLE KERALA HIGH COURT IN THE CASE OF CIT V/S SUPRIYA ENTERPRISES 232 ITR 887(KER). IN WHICH IT IS HELD THAT THE REGISTERED DOCUMENTS REFLECT THE PRICE OF THE LAND WHICH IS A PIECE OF EVIDENCE AND THE SAME CANNOT BE DISCARDED. THE ORDINARY RULE IS THAT APPARENT STATE OF AFFAIRS IS REAL UNLESS CONTRARY IS PROVED AND THE B URDEN OF PROVING THE CONTRARY LIES ON THE PERSON WHO ASSESSED/ALLEGED IT . THE LD.AR FURTHER RELIED ON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF DAULAT RAM ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 11 RAWAT MULL 87 ITR 349 (SC). THE LD.AR OF THE ASSESS EE FURTHER RELIED ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE CIT V/S K.K. ENTERPRISES 178 TAXMAN 187(RAJ.)/13 DTR 289 WHEREIN IT HAS BEEN HELD THAT AO DETERMINED THE SALE PRICE OF THE PLOTS BY ADOP TING THE RATE OF RS. 40 PER SQ.FT. ON THE BASIS OF RATE TAKEN BY SUB REGISTRAR AND MADE ADDITION TO ASSESSEES INCOME NOT JUSTIFIED. A PPARENTLY, THERE WAS NO RELIABLE MATERIAL ON RECORD BEFORE THE ASSESSING AUTHORITY TO ASSUME SALE OF PLOTS AT RS. 40 PER SQ. FT.. IN THE ABSENCE OF ANY EVIDENCE ON RECORD, IT CANNOT BE PRESUMED HAT LAND HAS BEEN SOL D BY THE ASSESSEE AT A HIGHER PRICE THAN THE CONSIDERATION SHOWN IN THE REGISTERED SALE DEEDS- RATES OF PROPERTY FIXED BY THE STAMP VALUATI ON AUTHORITY FOR REGISTRATION PURPOSE CANNOT BE APPLIED TO ARRIVE AT THE PRICE FOR WHICH THE PROPERTY MIGHT HAVE BEEN SOLD . THE LD.AR OF THE ASSESSEE ALSO RELIED ON THE FOLLOW ING DECISIONS. RECENTLY FOLLOWED BY THIS HONBLE BENCH IN THE CA SE OF MANOJ DUBEY IN ITA NO. 294/JP/2016 DT. 09.06.2017. ALSO FOLLOWED BY THE HONBLE ITAT IN THE CASE OF SH. JAGDISH CHANDRA BORI WAL IN ITA NO. 216/JD/2017 DT. 01.08.2017. SMT. SURENDRA KAUR V/S AO IN ITA NO.547/JP/2017 AND SMT. KAUSHALYA DEVI KHANDELWAL IN ITA NO. 184/JP/2016 DT.06.10.2017. IN VIEW OF THE ABOVE DELIBERATIONS, CASE LAWS (SUPR A), IT IS NOTED FROM THE ASSESSMENT ORDER THAT THE AO HAS NOT BROUGHT ANY O THER MATERIAL THAT THE ASSESSEE HAS IN FACT OR ACTUALLY HAS RECEIVED THE M ORE OR EXCESS SALE CONSIDERATION THAN SALE PRICE MENTIONED IN THE SA LE DEED. HE HAS ONLY RELIED UPON THE VALUE OF STAMP AUTHORITY WHICH HAS BEEN TAKEN THE SAME FOR STAMP DUTY PURPOSE. THE AO HAS NOT TRIED TO GET THE ACTUAL PRICE IF IN ITA NO. 478/JP/2017 SMT. CHATRU BAI VS. ITO, WARD-2 (3),KOTA . 12 CASE OF ANY DOUBT. HENCE, IN VIEW OF THE ABOVE JU DGMENTS OF THE HONBLE RAJ. HIGH COURTS AND DECISION OF TRIBUNAL, THE ADDITION MADE BY THE AO IS LIABLE TO BE DELETED. THUS GROUND NO. 3. 1 & 3.2 OF THE ASSESSEE ARE ALLOWED. 5.0 THE GROUND NO. 4 IS REGARDING CHARGING OF INTER EST U/S 234A, 234B & 234C WHICH ARE MANDATORY AND CONSEQUENTIAL IN NAT URE. 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 /02/20 18. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19 /02/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. CHATRU BAI, KOTA 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2 (3), KOTA 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 478/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR