SHRI GHANSHYAM MALI, Dewas V. THE ITO, Dewas

ITA 547/IND/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98932 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 22-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S S DESHPANDE; SANDEEP DESHPANDE
• Assessee Lawyers: G S GAUTAM
• Keywords: Cost of acquisition
• Section: 54B; 148

Judgement Text

ITO VSSHRI GHANSHYAM MALI ITA NO. 547/IND/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 547/IND/2013 A.Y.2008-09 SHRI GHANSHYAM MALI DEWAS ::: APPELLANT PAN AVRPG 1231G VS INCOME TAX OFFICER DEWAS ::: RESPONDENT APPELLANT BY SHRI S.S. DESHPANDE AND SHRI SANDEEP DESHPANDE ASSESSEE BY SHRI G.S. GAUTAM DATE OF HEARING 30.7.2015 DATE OF PRONOUNCEMENT 1 0 .8.2015 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL FILED BY THE ASSESSEEE EMANATES FROM THE ORDER OF THE LEARNED CIT(A), UJJAIN, DATED 17.4.20 13. ITO VSSHRI GHANSHYAM MALI ITA NO. 547/IND/2013 2 2. THERE IS A DELAY OF 3 DAYS IN FILING THE APPEAL. A FTER HEARING BOTH THE SIDES, THE DELAY IS CONDONED AND THE APPEAL IS HEARD ON MERITS. 3. THE ASSESSEE IS AN AGRICULTURIST DERIVING INCOME FR OM AGRICULTURE AND CAPITAL GAIN ON THE SALE OF AGRICULTURAL LAND. NO RETURN OF INCOME WAS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09. THE NOTICE U/S 148 OF THE A CT WAS ISSUED AND IN RESPONSE TO THAT THE ASSESSEE FILED T HE RETURN OF INCOME AT RS. 3,95,401/- AND AGRICULTURAL INC OME AT RS. 2 LACS. ASSESSEE ACQUIRED AGRICULTURAL LAND PART IN THE FINANCIAL YEAR 1976-77 AND PART IN FINANCIAL YEAR 1981- 82. THE SAME WAS SOLD DURING THE F.Y. 2007-08 TO M/S BHOMIYAJI LAND & FINANCE COMPANY, DEWAS, FOR RS.44,91,000/-. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT WHILE FILING THE RETURN OF INCOME THE ASSESSEE APPLIE D INDEX COST ON THE BASIS OF PURCHASE PRICE IN 1976-77 INSTEAD OF ITO VSSHRI GHANSHYAM MALI ITA NO. 547/IND/2013 3 APPLYING RATE OF 1981 IN THE CASE OF LAND PURCHASED IN F .Y. 1976-77. AS PER EXPLANATION (III) TO SECTION 48 OF TH E ACT, THE INDEXED COST OF ACQUISITION SHALL BE THE SAME PROPO RTION AS COST INFLATION INDEX OF THE YEAR IN WHICH THE ASSET IS TRANSFERRED, BEARS TO THE COST INFLATION INDEX FOR THE FIRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSESSEE OR FOR THE YEAR BEGINNING ON THE FIRST DAY OF APRIL, 1981 WHICH EVER IS LATER. THE SALE DEED WAS REGISTERED ON 19.9.2007. ASS ESSEE CLAIMED U/S 48(1) IN RESPECT OF SALE AGREEMENT WITH KAMLABAI CHOUHAN OF RS. 6,07,500/- AND DEDUCTION U/S 54B OF THE ACT IN RESPECT OF LAND PURCHASED IN THE N AME OF ASSESSEES WIFE MS PARWATIBAI AT RS.18,43,810/-. THE LAND CLAIMED TO HAVE BEEN SOLD TO KAMLABAI CHAUHAN WAS NOT TRANSFERRED IN THE REVENUE RECORD TILL DATE. THE ASSE SSEE HAS PURCHASED AGRICULTURAL LAND FOR RS. 18,43,810/- IN THE NAME OF HIS WIFE, SMT. PARVATI AND CLAIMED DEDUCTION U/S 54B OF THE ACT. THE ASSESSING OFFICER DISALLOWED TH E CLAIM ITO VSSHRI GHANSHYAM MALI ITA NO. 547/IND/2013 4 ON THE BASIS THAT THE ASSESSEE HAS PURCHASED THE LAND IN HIS WIFES NAME. ASSESSEES CLAIM WAS NOT ALLOWED IN RESPECT OF PAYMENT MADE TO SMT. KAMLABAI IN THE ABSENCE OF ANY DOCUMENTARY SUPPORT. 5. AFTER HEARING BOTH THE SIDES, WE HOLD THAT THE ASS ESSEE HAS NOT SUBMITTED ANY DETAIL OR DOCUMENTS REGARDING THE CLAIM MADE OF SALE OF LAND TO KAMLABAI. NOTHING HAS BEEN SUBMITTED BEFORE US ALSO. THIS CLAIM IS NOT FOUND TO BE GENUINE, THEREFORE, WE UPHOLD THE ORDER OF THE LEARN ED CIT(A) ON THIS ISSUE. WITH REGARD TO PURCHASE OF LAN D IN THE NAME OF WIFE OF THE ASSESSEE SMT. PARVATIBAI FOR RS.18,45,810/-, WE HOLD THAT HON'BLE DELHI HIGH COUR T IN THE CASE OF CIT VS. KAMAL WAHAL; (2013) 214 TAXMANN 287 ALLOWED THE CLAIM OF THE ASSESSEE ON SIMILAR FACTS. IN THE CASE OF ACIT VS. DEEPAK KUMAR DHAWAN; ITA NO. 150/2013, THE HON'BLE DELHI HIGH COURT HAS ALSO ALLOWE D THE CLAIM OF THE ASSESSEE WHERE THE LAND WAS PURCHASED I N ITO VSSHRI GHANSHYAM MALI ITA NO. 547/IND/2013 5 THE NAME OF WIFE. IN THIS CASE THE HON'BLE DELHI HIGH COURT HAS HELD AS UNDER :- WE HAVE CONSIDERED THE RIVAL CONTENTIONS. THERE IS NO DISPUTE TO THE FACT THAT CAPITAL GAIN AROSE ON SALE OF PROPERTY WAS UTILIZED IN THE RESIDENTIAL HOUSE PURCHASED IN THE NAME OF WIFE. THE ISSUE IS SQUARELY COVERED BY THE LATEST DECISIO N OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KAMAL WAHAL, 30 TAXMAN.COM 34 ORDER DATED 11 TH JANUARY, 2013, WHEREIN IT WAS HELD THAT FOR CLAIMING DEDUCTION OF CAPITAL U/S 54F, NEW RESIDENTIAL HOUSE NEED NOT BE PURCHASED BY THE ASSESSEE EXCLUSIVELY IN HIS OWN NAME. IT WAS FURTHER HELD THAT THE ASSESSEE HAVING PURCHASED THE NEW HOUSE IN THE NAME OF WIFE, EXEMPTION COULD NOT BE DENIED. RESPECTFULLY FOLLOWING THE ITO VSSHRI GHANSHYAM MALI ITA NO. 547/IND/2013 6 DECISION OF HON'BLE DELHI HIGH COURT AND CONSIDERING THE PROPOSITION LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS LIMITED; 88 ITR 192, WHICH SAYS THAT IF A STATUTORY PROVISION IS CAPABLE OF MORE THAN ONE VIEW, THEN THE VIEW WHICH FAVOURS THE TAX PAYERS SHOULD BE PREFERRED. FOLLOWING THE DECISION OF HON'BLE SUPREME COURT, WE ARE INCLINED TO FOLLOW THE VIEW IN FAVOUR OF THE ASSESSEE ON THIS VERY POINT IN PREFERENCE OF JUDICIAL PRONOUNCEMENT CITED BY THE LD. SENIOR DR IN FAVOUR OF REVENUE KEEPING THESE FACTS IN VIEW, WE DIRECT TO ALLOW CLAIM OF ASSESSEE U/S 54B OF THE ACT FOR THE PURCHASE OF LAND I N ASSESEES WIFES NAME. HOWEVER, ON THE ISSUE OF INDEX ATION, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING O FFICER FOR REWORKING THE INDEXATION COST AS PER LAW. ITO VSSHRI GHANSHYAM MALI ITA NO. 547/IND/2013 7 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON 10 TH AUGUST, 2015 SD SD (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 10TH AUGUST, 2015 DN/-