DCIT, Circle -9, Kolkata, Kolkata V. M/s Bagri Impex Pvt. Ltd., Kolkata

ITA 498/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7909 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 30-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B K DAS SRDR
• Assessee Lawyers: GAUTAM B ANERJEE
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Retrospective amendment; Fair market value; Competent authority; Assessment record
• Section: 143(3); 50C; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI, SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO.498/KOL/2012 ASSESSMENT YEAR:2006-07 DCIT, CIRCLE-9, KOLKATA V/S . M/S BAGRI IMPEX PVT. LTD., 207, MAHARSHI DEBENDRA ROAD, 3 RD FLOOR, ROOM NO.66, KOLKATA 700 007 [PAN NO . AABCB 9912A] (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI B.K. DAS, SR-DR /BY RESPONDENT SHRI GAUTAM BANERJEE, AR /DATE OF HEARING 06-08-2012 /DATE OF PRONOUNCEMENT 09-08-2012 O R D E R PER SANJAY ARORA, AM:- THIS IS AN APPEAL BY THE REVENUE ARISING OUT OF TH E ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-XXXII, KOLKATA (CIT(A) FOR SHORT) DATED 11-01-2012, ALLOWING THE ASSESSEES APPEAL CO NTESTING ITS ASSESSMENT U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT HEREI NAFTER) DATED 04-08-2008 FOR THE ASSESSMENT YEAR (A.Y) 2006-07. ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 2 2. THE REVENUE HAS RAISED THREE GROUNDS PER ITS PRE SENT APPEAL, READING AS UNDER:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ACCEPTING FRESH EVIDENCE WHICH IS I N VIOLATION OF RULE 46A OF THE I.T. RULES, 1962. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN DIRECTING THE A.O TO DELETE THE ADDITI ON OF RS.76,18,080/- IN THE SALE VALUE CONSIDERATION FOR COMPUTING LONG TER M CAPITAL GAIN. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASES AND IN LAW, LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT T HE ASSESSING OFFICER IS WITHIN HIS RIGHT TO ADOPT THE SALE CONSIDERATION AS PER THE VALUATION OF STAMP DUTY AUTHORITY WHICH IS HIGHER THAN THE VALUE DECLARED BY THE ASSESSEE. THE MATTER WAS HEARD AT LENGTH. 3. QUA THE FIRST GROUND, THE REVENUES CASE IS THAT WHILE ALL THE FIFTEEN (15) CONVEYANCE DEEDS, PER WHICH THE LAND IN QUESTION WA S CONVEYED BY THE ASSESSE, WERE PRODUCED BEFORE THE FIRST APPELLATE AUTHORITY, ONLY ONE COPY WAS SUPPLIED TO THE ASSESSING AUTHORITY. TOWARD THIS, THE LD. AR CLARIFIED THAT ALL THE RELEVANT MATERIAL WAS BEFORE THE ASSESSING OFFICER (AO), AND THERE HAS BEEN NO WRONG ASSUMPTION OF ANY FACT BY HIM IN DECIDING THE ASSES SEES CASE. REFERENCE WAS MADE BY HIM TO THE OBSERVATION BY THE LD. CIT(A) TO THIS EFFECT IN THE OPERATING PART OF HIS IMPUGNED ORDER. FURTHER, COPY OF THE AS SESSEESS LETTER DATED 16-07- 2008 TO THE AO WAS PLACED BY HIM ON RECORD TO EXHIB IT THAT ONE COPY EACH OF THE TWO DEEDS DATED 15-01-1998 AND 26-05-2006, I.E. , THE TWO DATES ON WHICH THE ENTIRE BUNCH OF 15 DEEDS WERE EXECUTED, WERE FI LED AS SPECIMEN COPIES BEFORE THE AO; THE OTHER DEEDS BEING IDENTICAL IN A LL OTHER RESPECTS. HAD THE AO WANTED, HE AVERRED, THE ASSESSEE COULD HAVE SUPPLIE D THE COPIES OF ALL THE OTHER DEEDS AS WELL. THE LD. DR, AFTER SEEKING AN ADJOURN MENT FOR MAKING VERIFICATION, ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 3 CONFIRMED THE SAID LETTER (DATED 16/7/2008) AS FORM ING PART OF THE ASSESSMENT RECORD. HE ALSO COULD NOT DEMONSTRATE ANY WRONG ASS UMPTION OF FACT/S BY THE AO. UNDER THE CIRCUMSTANCES, WE FIND NO MERIT IN WH ICH REVENUES CASE QUA ITS GROUND NO.1, SO THAT THE SAME IS DISMISSED. 4. THAT LEAVES US WITH THE ISSUE ON MERITS, WHICH S TAND PROJECTED BY THE REVENUE PER ITS GROUND NOS. 2 AND 3 (SUPRA). 4.1 AT THIS STAGE, IT WOULD BE RELEVANT TO DELINEAT E THE BACKGROUND FACTS OF THE CASE. THE ASSESSEE SOLD HIS 2/5 TH SHARE IN THE LAND SITUATE AT 14A BURDWAN ROAD, KOLKATA, ALONG WITH THE TWO OTHER CO-OWNERS, BEING GROUP COMPANIES, I.E., BAGARI INVESTMENTS PVT. LTD. AND BAGARI SYNTHETICS PVT. LTD., TO FIFTEEN (15) DIFFERENT BUYERS, PER SEPARATE CONVEYANCE DEEDS, I. E., QUA EACH CONVEYANCE. THE RESPECTIVE AGREEMENTS TO SALES WERE IN ALL CASES EX ECUTED ON 15-10-1996. WHILE FIVE (5) CONVEYANCE DEEDS WERE EXECUTED ON 15-01-19 98, AND REGISTERED AFTER PAYING STAMP DUTY ON 22-02-1999, THE BALANCE TEN (10) WERE EXECUTED ON 26- 05-2006; THE CORRESPONDING DATE OF REGISTRATION BEI NG 27-11-2007, WHEN THE STAMP DUTY WAS FINALLY ASSESSED. THE BULK OF THE SA LE CONSIDERATION STOOD RECEIVED, AS WELL AS POSSESSION MADE OVER, IN ALMOS T ALL CASES BY JANUARY, 1998, WHEREAT THE FIVE (5) DEEDS WERE EXECUTED. THE ASSES SEE, HOWEVER, RETURNED LONG TERM CAPITAL GAINS (`LTCG FOR SHORT) ARISING ON TH E SAID TRANSFERS FOR THE CURRENT ASSESSMENT YEAR, I.E., A.Y. 2006-07, AT RS.97,14,46 3/-. THE AO, HOWEVER, ASSESSED IT AT RS.1,73,32,543/- BY DEEMING THE SALE CONSIDERATION AT RS.214.18 LAKHS I.E., AS AGAINST THE ACTUAL SALE CONSIDERATIO N (I.E., IN RESPECT OF THE ASSESSEES 2/5 TH SHARE) OF RS.138 LAKHS, OR INCREASING IT BY RS.76, 18,080/- . IT IS THIS ENHANCEMENT OF SALE CONSIDERATION, FOR THE PUR POSE OF ASSESSMENT OF LTCG, BY INVOKING THE PROVISION OF SECTION 50C OF THE ACT , THAT IS THE SUBJECT MATTER OF DISPUTE BETWEEN THE ASSESSEE AND THE REVENUE, WITH THE ASSESSEE HAVING BEEN ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 4 GRANTED RELIEF BY THE FIRST APPELLATE AUTHORITY, SO THAT THE REVENUE IS IN APPEAL BEFORE US. 4.2 THE REVENUES CASE IS THAT THE PROVISION OF SEC . 50C HAVING COME ON THE STATUTE BOOK WITH EFFECT FROM 1-4-2003, AND THE CAP ITAL ASSET WHICH IS THE SUBJECT-MATTER OF TRANSFER, BEING LAND, THE SAME WO ULD APPLY, AND THUS STANDS RIGHTLY INVOKED BY THE AO. THE ASSESSEES CASE, AND ON THE BASIS OF WHICH IT FOUND FAVOUR WITH THE FIRST APPELLATE AUTHORITY, IS THAT THE TRANSFER IN THE FIRST FIVE (5) CASES STOOD EFFECTED MUCH PRIOR THE RELEVANT YE AR, I.E., ON 15-01-1998, SO THAT IT COULD NOT BE SUBJECT TO THE RIGOR OF SECTIO N 50C. IN FACT, THERE IS NO DISPUTE BETWEEN THE SALE VALUE ADOPTED BY THE ASSESSEE AND THAT ASSESSED BY THE STAMP VALUATION AUTHORITY (`SVA FOR SHORT) IN THESE CASE S. FOR THE BALANCE 10 (TEN), THE ASSESSMENT BY THE SVA TOOK PLACE ONLY ON 27-11- 2007, I.E., SUBSEQUENT TO THE DATE OF TRANSFER. THE WORDS OR ASSESSABLE IN S. 50C(1) STAND INSERTED IN THE SECTION ONLY BY FINANCE (NO.2) ACT 2009, WITH EFFEC T FROM 1-10-2009. THE AMENDMENT IS PROSPECTIVE AND, AS SUCH, WOULD HAVE N O APPLICATION FOR THE CURRENT YEAR. THAT IS, PRIOR TO 01-10-2009, IT IS O NLY WHERE THE TRANSFER UNDER REFERENCE IS SUBJECT TO ASSESSMENT BY THE SVA IN TH E SAME YEAR, I.E., THE YEAR OF TRANSFER, THAT THE LEGAL FICTION PER SECTION 50C WO ULD COME INTO PLAY. RELIANCE IS PLACED ON THE DECISIONS IN THE CASE OF ITO V. MANGAL SHREE ESTATE LTD. (ITA NO.88/JP/2011 DATED 05-08-2011) AND SMT. RAJSHREE BIHANI V. ITO (2011) 48 SOT 594 (KOL) (COPY ON RECORD). 4.3 WE HAVE PERUSED THE MATERIAL ON RECORD, AS WELL AS THE CASE LAW CITED. THE PRIMARY FACTS ARE NOT IN DISPUTE, AND THE ONLY ISSUE ARISING IS OF THE APPLICABILITY OR OTHERWISE OF SECTION 50C OF THE AC T TO THE LTCG DISCLOSED BY THE ASSESSEE FOR THE RELEVANT YEAR IN THE GIVEN FAC TS AND CIRCUMSTANCES OF THE CASE. OUR FIRST OBSERVATION IN THE MATTER IS THAT YEAR OF TRANSFER IS NOT IN DISPUTE . THIS ASPECT WAS GOT SPECIFICALLY CONFIRMED BY THE B ENCH DURING HEARING FROM ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 5 BOTH THE PARTIES, AS THERE IS NO QUESTION OF ASSESS MENT OF CAPITAL GAINS U/S. 45 FOR THE CURRENT YEAR, MUCH LESS APPLICABILITY OF SECTIO N 50C, IF NO TRANSFER HAS TAKEN PLACE DURING THE RELEVANT YEAR. IN FACT, WE ALSO OB SERVE NO DISPUTE WITH REGARD TO THIS ASPECT BEFORE THE AUTHORITIES BELOW AND, CONSE QUENTLY, NO FINDING BY THEM IN THE MATTER PER THEIR RESPECTIVE ORDERS. THE ONLY ISSUE, THEREFORE, THAT SURVIVES, AND WHICH STOOD AGITATED BEFORE US (ALSO REFER GROU ND NOS. 2 AND 3 BY THE REVENUE) IS THE APPLICABILITY OR OTHERWISE OF SECTI ON 50C TO THE IMPUGNED TRANSFERS PER THE 15 (FIFTEEN) CONVEYANCE DEEDS IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4.4 SECTION 50C STANDS CO-OPTED ON THE STATUTE BY F INANCE ACT, 2002, WITH EFFECT FROM 01-04-2003. ITS RELEVANT PART READS AS UNDER:- SPECIAL PROVISIONS FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES. 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUI NG AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING L AND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY A UTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO A S THE STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUT Y IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED SHALL, F OR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE C ONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. THE WORDS OR ASSESSABLE STAND INSERTED AFTER THE WORD ASSESSED AND BEFORE THE WORDS BY ANY AUTHORITY BY FINANCE (NO.2) ACT, 2009 WITH EFFECT FROM 1- 10-2009. 4.5 OUR FIRST OBSERVATION IN THE MATTER IS THAT SEC TION 50C WOULD APPLY IN RESPECT OF CAPITAL GAINS ARISING ON THE TRANSFER OF ANY CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, CHARGEABLE U/S. 45 OF THE ACT FOR A.Y. 2003-04 OR ANY SUBSEQUENT YEAR. AS SUCH, THE IMPUGNED CAPITAL GAIN S, BEING CHARGEABLE U/S. 45 FOR THE CURRENT YEAR, I.E., AY 2006-07, SECTION 50C WOULD BE PER SE APPLICABLE. ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 6 4.6 NOW LET US EXAMINE THE ASSESSEES CASE, WHICH IS IN TWO SEPARATE LIMBS, VIS--VIS THE SAID PROVISION. FOR THE FIRST FIVE (5 ) DEEDS DATED 15-01-1998, THE ISSUE IS ACADEMIC INASMUCH AS UNDISPUTEDLY THERE IS NO DIFFERENCE BETWEEN THE VALUE ASSESSED BY THE SVA AND THAT DISCLOSED BY THE ASSESSEE PER THE SAID DEEDS. THERE IS NO QUESTION, AS HAS BEEN DONE BY THE AO, O F THE VALUE ASSESSABLE FOR A SUBSEQUENT YEAR, I.E., SUBSEQUENT TO THE ASSESSMENT BY THE SVA, AS BEING RELEVANT OR MADE APPLICABLE FOR THE PURPOSE OF SEC. 50C. AS SUCH, SECTION 50C, THOUGH APPLICABLE IN PRINCIPLE FOR THE FIRST 5 (FIV E) DEEDS DATED 15-01-1998, WOULD BE OF NO CONSEQUENCE, AND NO MODIFICATION TO THE DISCLOSED SALE CONSIDERATION COULD BE MADE WITH REFERENCE TO SECTI ON 50C. 4.7 NEXT, WE TAKE UP THE ASSESSEES CASE QUA THE BALANCE TEN (10) CONVEYANCE DEEDS FOR AN AGGREGATE DISCLOSED SALE CONSIDERATION OF RS.96 LAKHS, EXECUTED ON 26-05-2006. THE ASSESSEES CASE IS THAT THE ASSESSM ENT OF THE FAIR MARKET VALUE OF THE PROPERTY (LAND) BY THE SVA WAS DONE ONLY ON 27-11-2007 AND, THEREFORE, THERE BEING NO ASSESSMENT BY IT BY THE END OF THE R ELEVANT YEAR, I.E., 31-03-2006, SECTION 50C WOULD NOT APPLY; THE WORDS OR ASSESSAB LE HAVING BEEN BROUGHT ON THE STATUTE ONLY WITH EFFECT FROM 01-10-2009. WE FIND NO FORCE IN THE ARGUMENT. THERE IS NO DISP UTE THAT A CIRCLE RATE HAD BEEN PRESCRIBED BY THE COMPETENT AUTHORITY (OF THE STATE GOVERNMENT) UNDER THE STAMP ACT FOR THE RELEVANT YEAR AND, FURTHER, T HAT THE TRANSFER UNDER REFERENCE IS COVERED BY SEC. 50C. IT IS THIS VALUE THAT IS RE LEVANT, AND TO BE ADOPTED BY THE ASSESSEE WHILE FILING HIS RETURN OF INCOME, I.E., W HERE NO FORMAL ASSESSMENT HAS BEEN MADE BY THE SVA. AGAIN, IF IT HAS BEEN BY THE DUE DATE OF FILING OF THE RETURN OF INCOME OR THE ACTUAL FILING OF RETURN, TH E SAME BEING AVAILABLE, AND ONLY IN RELATION TO THE TRANSFER, CAPITAL GAINS ON WHICH HAS ARISEN FOR THE RELEVANT YEAR, THE SAME WOULD STAND TO BE ADOPTED. THE WORDS ADOPTED OR ASSESSED ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 7 (AS ALSO ASSESSABLE) IN S. 50C(1) QUALIFY THE WOR D VALUE PRECEDING IT, AND NOT THE WORD TRANSFER. THE ONLY CONDITION IS THAT THE SAID VALUE SHOULD BE IN RESPECT OF THE RELEVANT TRANSFER, I.E., OF A DEFINE D CAPITAL ASSET, CAPITAL GAINS ON WHICH IS ASSESSABLE FOR THE RELEVANT YEAR. IN OUR V IEW, THE PURPORT OR RELEVANCE OF THE WORD `ASSESSABLE, THE PROSPECTIVE OPERATION OF WHICH IS BEING ADVANCED BY THE ASSESSE AS THE REASON FOR NON-APPLICABILITY OF THE PROVISION OF S. 50C, WOULD BE WHERE THERE IS A DIFFERENCE BETWEEN THE VA LUE ADOPTED OR ASSESSED, AND THAT ASSESSABLE, ON THE OTHER. IN FACT, AS WE SEE I T, THE PROVISION (50C(1)) CONTEMPLATES NO DIFFERENCE IN VALUE ADOPTED OR ASSE SSED OR THE VALUE ASSESSABLE BY THE SVA. IT IS TO BE APPRECIATED THAT THE VALUE ONLY SEEKS TO ESTIMATE OR DETERMINE THE FAIR MARKET VALUE OF THE RELEVANT CAP ITAL ASSET ON THE DATE OF TRANSFER. AS SUCH, WHETHER THE ASSESSEES ASSESSMEN T TOOK PLACE DURING THE RELEVANT YEAR OR SUBSEQUENT THERETO, WOULD BE OF LI TTLE CONSEQUENCE. THE OTHER CIRCUMSTANCE WHERE THE WORD ASSESSABLE COULD DRAW A DISTINCTION IS WHERE THE VALUE UNDER THE STAMP ACT COMES TO BE STIPULATED ON LY SUBSEQUENT TO THE DATE OF TRANSFER, THOUGH FROM A RETROSPECTIVE DATE. CLEARLY , NO VALUE HAVING BEEN PROVIDED FOR (IN SUCH A HYPOTHETICAL CASE), NO VAL UE COULD BE SAID TO HAVE BEEN ADOPTED OR ASSESSED BY SVA, SO THAT IT CAN BE ARGUE D THAT SUCH A TRANSFER IS NOT COVERED BY SECTION 50C. SIMILARLY, WOULD BE THE CAS E WHERE THE GUIDELINE VALUE AVAILABLE (UNDER THE STAMP ACT) IS SUBJECT TO REVIS ION AT THE RELEVANT TIME, AND A HIGHER VALUE IS PRESCRIBED SUBSEQUENTLY, ALBEIT WIT H RETROSPECTIVE EFFECT. THE WORDS OR ASSESSABLE WOULD MAKE A DISTINCTION INAS MUCH AS THE LATTER PRESCRIPTION (OF RATE) COULD GIVE RISE TO A CONTROV ERSY AS TO WHETHER THE TRANSACTION (OF TRANSFER) IS AT ALL COVERED U/S.50C , OR IF THE HIGHER VALUE WOULD HOLD, AS THE CASE MAY BE. NO SUCH CONTROVERSY IS PR ESENT IN THE INSTANT CASE; WE CLARIFYING AT THE OUTSET, AND ALSO CONFIRMED DURING HEARING, THAT A CIRCLE RATE OBTAINED IN RESPECT OF THE LAND UNDER REFERENCE DUR ING THE RELEVANT YEAR (I.E., THE PREVIOUS YEAR RELEVANT TO AY 2006-07), AND AT WHICH IT STOOD ASSESSED, THOUGH SUBSEQUENTLY. WE HAVE, IN FACT, READ THE PROVISION CONSIDERING THE WORDS OR ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 8 ASSESSABLE AS NOT PRESENT IN THE PROVISION. MERELY BECAUSE THE ASSESSMENT TAKES PLACE SUBSEQUENT TO THE RELEVANT YEAR, WOULD NOT MA KE U/S. 50C INAPPLICABLE WHERE THE TRANSFER IS OTHERWISE COVERED BY IT . ONCE A CIRCLE RATE HAS BEEN PRESCRIBED BY THE COMPETENT AUTHORITY FOR THE PURPO SE, I.E., THE PAYMENT OF STAMP DUTY, WHICH IS A PRE-REQUISITE FOR THE REGIST RATION OF ANY TRANSFER UNDER THE REGISTRATION ACT, 1908, AND WHICH IN TURN IS MANDAT ORY FOR THE SAME TO HAVE A LEGAL EFFECT, IT CAN FAIRLY BE SAID TO BE THE VALUE ADOPTED BY THE COMPETENT AUTHORITY, IN RESPECT THE RELEVANT TRANSFER. ONE CA N UNDERSTAND A CONTROVERSY WHERE THE VALUE SUBSEQUENTLY ASSESSED IS AT VARIANC E WITH THE VALUE CLAIMED TO HAVE BEEN ADOPTED BY THE SAID AUTHORITY. HOWEVER, N O SUCH CONTROVERSY OBTAINS IN THE INSTANT CASE, WITH, RATHER, THERE BEING A SE PARATE PROCEDURE WHERE THE ASSESSEE CONTESTS THE VALUE AS ASSESSED (SEE S. 50C (2)), SO THAT THE SAME WOULD NEED TO BE OBSERVED. 4.8 FINALLY, WE MAY DEAL WITH THE CASE LAW CITE D BEFORE US. THE DECISION IN THE CASE OF MANGAL SHREE ESTATE LTD. (SUPRA) IS BASED ON THE DECISION IN THE CASE OF NAVNEET KUMAR THAKKAR V. ITO (2008) 110 ITD 525 (JD). IN THE FACTS OF THAT (LATTER) CASE, THE TRANSFER, CAPITAL GAINS ARISING ON WHICH WAS SUBJECT TO TAX, WAS PER AN UNREGISTERED DOCUMENT. THE TRANSFER UNDER T HE ACT BEING COMPLETE, IT WAS HELD THAT THERE WAS NO WARRANT FOR THE SUBSTITU TION OF THE ACTUAL SALE CONSIDERATION WITH THE VALUE ADOPTED OR THAT MAY BE ASSESSED BY THE SVA, I.E., IF AND WHEN THE SAID TRANSFER IS SUBJECT TO REGISTRATI ON, FOR THE PURPOSE OF COMPUTING CAPITAL GAINS UNDER THE ACT. ACCORDINGLY, THE POSITION EXISTING PRIOR TO THE CO-OPTION OF SECTION 50C OF THE ACT WOULD AP PLY. IN FACT, THIS REPRESENTS ONE MORE AREA OR CIRCUMSTANCE UNDER WHICH THE WORD ASSESSABLE, WHICH CAME ON THE STATUTE ONLY LATER, WOULD BECOME RELEVANT. T HE `TRANSFER IN THE CASE OF MANGAL SHREE ESTATE LTD . (SUPRA) WAS, AGAIN, ONLY PER AN UNREGISTERED DOCUMENT, WITH THE TRIBUNAL FINDING THE WORDS `ASSE SSABLE IN S. 50C (1) AS OPERATIVE FROM A LATER DATE, AND WHICH, AS CLARIFIE D EARLIER, HAVE NOT BEEN TAKEN ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 9 INTO CONSIDERATION BY US. THE SAID DECISIONS ARE CL EARLY DISTINGUISHABLE ON FACTS INASMUCH AS EACH TRANSFER IN THE INSTANT CASE STAND S EXECUTED PER A REGISTERED DOCUMENT. IN FACT, AS SOUGHT TO BE CLARIFIED EARLIE R, THE ASSESSEE HIMSELF DECLARES A VALUE, PAYING STAMP DUTY THEREON, WITH REFERENCE TO THE PRESCRIBED CIRCLE RATE. THE SAID DECISIONS WOULD THUS HAVE NO APPLICATION I N THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. IN THE CASE OF SMT. RAJSHREE BIHANI (SUPRA), THE ASSESSEE, ON THE IMPUGNED TRANSFER BEING SOUGHT TO BE SUBJECT TO THE RIGOR OF SECTION 50C, CONTENDED THAT TRANSFER WAS EFFECTED I N FACT MUCH EARLIER TO THE RELEVANT ASSESSMENT YEAR (BEING A.Y. 2005-06), I.E. , IN A.Y. 2001-02. ALSO, THE PROPERTY PURCHASED OUT OF THE SALE PROCEEDS WAS ALS O WITHIN THE STIPULATED TIME OF THE DATE OF THE TRANSFER, SO THAT THE CAPITAL GA INS WAS NOT ASSESSABLE EVEN FOR THAT YEAR, BEING EXEMPT U/S.54F. IT WAS IN THIS SIT UATION THAT IT WAS HELD BY THE TRIBUNAL THAT NO COGNIZANCE OF THE SUBSEQUENT DEED FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS UNDER THE ACT COULD BE TAKEN AND, ACCORDINGLY, SECTION 50C COULD NOT BE APPLIED. IN THE FACTS OF T HE PRESENT CASE, WITHOUT DOUBT, THE ASSESSEE HAS RETURNED CAPITAL GAINS FOR THE CUR RENT YEAR, AND ADMITS IT TO BE THE YEAR OF THE TRANSFER OF THE RELEVANT LAND, AND WHICH, AS CLARIFIED AT THE OUTSET, IS NOT THE SUBJECT MATTER OF DISPUTE OR DETERMINATI ON. THE CAPITAL GAINS BEING ASSESSABLE FOR THE CURRENT YEAR, THE PROVISION OF S EC. 50C WOULD APPLY. THE ASSESSE COULD NOT POSSIBLY TAKE A STAND THAT WHILE CAPITAL GAINS WOULD STAND TO BE CHARGED U/S. 45 FOR THE CURRENT YEAR, SEC. 50C W OULD NOT APPLY; THE ASSESSMENT YEAR UNDER REFERENCE BEING SUBSEQUENT TO AY 2002-03 (ALSO REFER PARA 4.3, 4.5). THE SAID DECISION IS THUS, AGAIN, D ISTINGUISHABLE, AND WOULD BE OF NO ASSISTANCE TO THE ASSESSEE. WE DECIDE ACCORDINGL Y. ITA NO.498/KOL/2012 A.Y. 2006-07 DCIT CIR-9, KOL V. M/S BAGRI IMPEX P. LTD. PAGE 10 5. IN THE RESULT, THE REVENUES APPEAL IS PARTLY ALLOW ED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (GEORGE MATHAN) (SANJA Y ARORA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP - 09/08/2012 KOLKATA ! ! ! ! ''# ''# ''# ''# $ # $ # $ # $ # / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. %'& ' / CONCERNED CIT 4. ' - / CIT (A) 5. #() '''& , '& , *+% / DR, ITAT, KOLKATA 6. ),- ./ / GUARD FILE. BY ORDER/ ! , /TRUE COPY/ ASSTT . REGISTRAR, KO LKATA BENCHES STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 07/08, 08/08 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 07, 08, & 09/08 4) DATE OF CORRECTION 09/08 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 09 /08 7) ORDER UPLOADED ON 13/08 8) SHORT-HAND NOTE ATTACHED TO FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 13 /08