Virender Singh, Noida V. ITO, Ward-2(5), Noida

ITA 5461/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3293 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JIWANI
• Assessee Lawyers: K P GARG
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 50C; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO. 546 1 /DEL/201 7 [A.Y. 20 09 - 10 ] SHRI VIRENDER SINGH VS. THE I . T .O S /O SHRI TARA CHAND WARD 2 ( 5 ) F 64C/ 373, SECTOR - 40 NOIDA NOIDA G.B. NAGAR PAN : A LMPK 2029 E [ ASSESSEE ] [RESPONDENT] DATE OF HEARING : 2 0 . 0 2 .201 8 DATE OF PRONOUNCEMENT : 06 .0 3 .201 8 AS SESSEE BY : SHRI K.P. GARG , CA REVENUE BY : SHRI JIWANI , SR. DR ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE LD. CIT(A) - 1 , NOIDA VIDE ORDER DATED 3 0 . 0 5 .201 7 FOR A.Y. 20 09 - 10 . 2 . T HE ASSESSEE HAS RAISED THE AS MANY AS 14 GROUNDS OF APPEAL PERTAINING TO SOLE ISSUE BEING PROCEEDINGS INITIATED U/S 147 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] AND MAKING ADDITION ON ACCOUNT OF PURCHASE OF FLAT. 2 ITA NO. 68 51 /DEL/201 7 3. TH E BRIEF FACTS OF THE CASE AS EMANATING FROM THE ORDER OF LD. CIT(A) ARE REPRODUCED HEREINBELOW: THE ONLY DISPUTE BETWEEN THE APPELLANT AND THE REVENUE IS INVOCATION OF THE PROVISIONS OF SECTION 50C OF I.T. ACT, 1961 TO THE CASE OF THE APPELLANT. ADMITTE DLY, THE APPELLANT HAS ACCEPTED BEFORE THE STAMP DUTY AUTHORITIES THAT THE VALUE OF THE PROPERTY SOLD BY THE APPELLANT WAS RS.97,36,440/ - AND THE APPELLANT HAS ALSO ON ITS OWN ACCORD PAID THE REQUISITE STAMP DUTY ON THIS VERY AMOUNT. THE LD. AO HAS ADOPTE D AS THE SALE CONSIDERATION THE ADMITTED VALUE BY THE APPELLANT AND UNLESS THE APPELLANT PROVED OTHERWISE THERE WAS NO REASON FOR THE LD. AO TO ACT IN A DIFFERENT MANNER. THE PROVISIONS OF SECTION 50C ARE PRESUMPTIVE IN NATURE AND HAS THE OVERRIDING EFFEC T. THOUGH, THE LEGISLATURE HAS TAKEN CARE TO MITIGATE THE CASES OF GENUINE HARDSHIPS THE ONUS HAS BEEN CAST UPON THE CLAIMANT WHO ADVANCES THE CLAIM THAT WHILE THE VALUE ACCEPTED BY HIM BEFORE THE STAMP DUTY AUTHORITIES WAS MUCH HIGHER THE ACTUAL VALUE OF THE PROPERTY SOLD WAS MUCH LOWER. IN THE INSTANT CASE THE APPELLANT HAS NOT DISCHARGED THE ONUS CAST BY LAW UPON IT. THAT BEING THE CASE THERE IS NO REASON TO INTERFERE WITH THE IMPUGNED ASSESSMENT ORDER. THE SAME IS THEREFORE CONFIRMED. THE APPEAL OF THE APPELLANT FAILS AND IS DISMISSED. 3 ITA NO. 68 51 /DEL/201 7 4. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE MR. K.P. GARG C.A. THAT AO HAD ISSUED THE NOTICE U/S 133 ON 20.01.2016 REGARDING PURCHASE OF IMMOVABLE PROPERTY HAVING PURCHASE COST AT RS.97,36,440/ - ON 04.12.2008. IT WAS ARGUED BY THE LD. COUNSEL THAT NO SUCH PROPERTY WAS PURCHASED ON THAT DATE AND THEREFORE THE ASSESSEE DID NOT REPLY TO THE SAME. THE ASSESSMENT WAS MADE U/S 50C OF THE ACT I.E. ON CAPITAL GAIN ARISING FROM THE SALE OF PROPERTY WITHOUT DEALING WITH THE PURCHASE OF ANY IMMOVABLE PROPERTY. NO REASONS RECORDED HAVE BEEN SUPPL IED TO THE ASSESSEE. THE ASSESSMENT HA S BEEN MADE U/S 144 OF THE ACT. IN THE NOTICE U/S 144 OF THE AC T DATED 21.11.2016, THE AO HAS FIRST TIME REFERRED TO CAPITAL GAIN ON SALE OF LAND WHICH MEANS THE AO OBTAINED THE COPY OF THE REGISTERED TRANSFERRED DEED DATED 04.12.2008 WHICH WAS EXECUTED BY SMT. RITU AGGARWAL FOR A CONSIDERATION OF RS.1,85,000/ - ON 04 .01.2008 BY SH. MAHENDER KUMAR. NOW NEITHER THE NOTICE NOR THE PROCEEDINGS U/S 147 COULD BE VALIDATED BY THIS NOTICE. IN FACT AS PER THE SALE DEED SELLER IS SMT. RITU AGGARWAL AND PURCHASER IS SH. MAHENDER KUMAR AND NO NOTICE HAD BEEN ISSUED TO EITHER OF THEM . 4 ITA NO. 68 51 /DEL/201 7 THE NOTICE WAS WRONGLY ISSUED TO ASSESSEE VIRENDER KUMAR, AS FROM THE PARTICULARS CONTAINED IN THIS DEED, IT WAS CRYSTAL CLEAR THAT THE TRANSACTION OF SALE OF ALLOTMENT RIGHTS WAS COMPLETED ON 04.01.2008 FOR RS.1,95,000/ - BY VIRTUE OF A REGD. AGR EEMENT ON 04.01.2008 FOR RS.1,95,000/ - BY VIRTUE OF A REGD. AGREEMENT TO SELL & GPA (PB PAGES 13 - 14, 20 - 57B). THUS THE TRANSACTION, IF AT ALL INVOLVED ANY TAXABLE INCOME, WAS TAXABLE IN A.Y. 2008 - 09, FOR WHICH NO NOTICE WAS ISSUED TO THE ASSESSEE. APPAR ENTLY THE NOTICE FOR AY 2009 - 10 IS INVALID AND BEYOND JURISDICTION. THE ITO DID NOT APPLY HIS MIND AT ALL, EITHER AT THE TIME OF ISSUE OF NOTICE U/S 133, OR AT THE TIME OF RECORDING REASONS, IF ANY OR AT THE TIME OF ISSUE OF NOTICE U/S 148. 5. IN THE CIR CUMSTANCES AND FACTS OF THE CASE , THE PROCEEDINGS INITIATED U/S 147 OF THE ACT ARE BAD IN LAW AND ARE DIRECTED TO BE QUASHED. THE LEGAL GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. SINCE THE ASSESSEE SUCCEEDS ON LEGAL GROUNDS, WE DO NOT DECIDE THE MERIT IN THE MATTER. 6. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO.5461/D/17 IS ALLOWED. THE ORDER IS PRO NOUNCED IN THE OPEN COURT ON 06 . 0 3 .201 8 . SD/ - [B.P. JAIN] ACCOUNTANT MEMBER DATED: 06 MARCH, 2018 VL/ 5 ITA NO. 68 51 /DEL/201 7 COPY FORWARDED TO: 1 . ASSESSEE 2 . RESPONDENT 3 . CIT ASSISTANT REGISTRAR 4 . CIT(A) ITAT, NEW DELHI 5 . DR