Vikas Virani, Bhopal V. I T O-2(4), Bhopal

ITA 72/Ind/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8997 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-12-2020
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N D PATVA ARS
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Tax effect; Set aside; Capital Gains
• Section: 143(3); 50C; 148

Judgement Text

SMC I.T.A.72 OF 2019 VIKAS VIRANI 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.72/IND/2019 ASSESSMENT YEAR:2007-08 VIKAS VIRANI A-66, SHAHPURA, BHOPAL / VS. ITO - 2(4) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. AAKPV5971H APPELLANT BY S/SHRI ASHISH GOYAL & N.D. PATVA, ARS REVENUE BY SHRI HARSHIT BARI, SR. DR DATE OF HEARING: 16.12.2020 DATE OF PRONOUNCEMENT: 04.01.2021 / O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DERS OF LD. CIT(APPEALS)- 3, BHOPAL DATED 26.11.2018 PERTAINING TO ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT U/S 148 IS INVALID, WITHOUT JUR ISDICTION, BARRED BY LIMITATION ILLEGAL AND LIABLE TO BE QUASHED. (TAX E FFECT :3,92,562/-) 2. THAT THE LD. CIT(A) ERRED IN FACTS AND LAW IN SUSTA INING THE ADDITION ON ACCOUNT OF SHORT TERM CAPITAL GAINS OF RS.12,08,600 /- U/S 50C.(TAX EFFECT :3,92,562/-) SMC I.T.A.72 OF 2019 VIKAS VIRANI 2 3. THAT THE LD. CIT(A) ERRED IN APPLYING PROVISIONS OF SECTION 50C AND CONSIDERING STAMP DUTY VALUE TO BE ACTUAL CONSIDERA TION.(TAX EFFECT :3,92,562/-) 4. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT MAKING REFERENCE TO DVO AND CONSIDERING STAMP DUTY VALUE TO BE ACTUAL CONSIDERA TION. .(TAX EFFECT :3,92,562/-) 2. THE EFFECTIVE GROUND IN THIS APPEAL IS AGAINST SUSTAINING THE ADDITION OF RS.12,08,600/-. 3. FACTS, IN BRIEF, ARE THAT THE CASE OF THE ASSESS EE WAS REOPENED AND THE ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT WAS FRA MED VIDE ORDER DATED 23.03.2015. THE ASSESSING OFFICER OBSERVED IN THE A SSESSMENT THAT THE ASSESSEE HAD TRANSFERRED LAND IN QUESTION IN FAVOUR OF SMT. SANDHYA AGRAWAL, SUNITA AGARWAL, SMT. ANAMIKA AGARWAL AND SMT. KIRTI AGARWA L ON 31.03.2007. THE ASSESSING OFFICER FURTHER OBSERVED THAT A SALE AGRE EMENT DATED 7.12.2005 WAS FOUND WHEREBY SHANKAR LAL SADWANI AND BHARAT KESWAN I HAD TRANSFERRED THE LAND IN FAVOUR OF THE ASSESSEE FOR A CONSIDERATION OF RS.9,88,600/-. THE CONTENTION OF THE ASSESSEE THAT THE IMPUGNED LAND W AS NOT A CAPITAL ASSET ALSO REJECTED ON THE GROUND THAT TEHSILDAR, TEHSIL HUZUR , BHOPAL VIDE HIS LETTER DATED 09.03.2015 ISSUED A CERTIFICATE STATING THERE IN THAT THE LAND IN QUESTION WITHIN THE 6KM FROM THE MUNICIPAL LIMITS OF BHOPAL . THE ASSESSING OFFICER OBSERVED AS PER THE REGISTERED SALE DEED DATED 31.0 3.2007BETWEEN SHRI VIKAS VIRANI, POWER OF ATTORNEY HOLDER AND SMT. SANDHYA A GARWAL, W/O SHRI KRISHNA GOPAL AGARWAL, SMT. SUNITA AGARWAL W/S SHRI KRISHNA MURARI AGARWAL, SMT. ANAMIKA AGARWAL, W/O SHRI PRADIP AGARWAL, SMT. KIRT I AGARWAL W/O SHRI SMC I.T.A.72 OF 2019 VIKAS VIRANI 3 PRAKASH AGARWAL. THE SALE DEED WAS MADE FOR 8.275 A CRES FOR A CONSIDERATION OF RS.16,00,000/-. HOWEVER, AS PER THE STAMP VALUAT ION, THE VALUE WAS RS.33,10,000/-. THE ASSESSING OFFICER, THEREFORE, A SSESSED SHORT TERM CAPITAL GAIN AT RS.12,08,600/-. 4. AGGRIEVED AGAINST THIS ASSESSEE PREFERRED AN APP EAL BEFORE LD. CIT(A) WHO CONFIRMED THE ADDITION AND REJECTED THE GROUNDS RAI SED BY THE ASSESSEE. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUN AL. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SYNOPSIS. LD. COUNSEL VEHEMENTLY ARGUE THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE WAS MERELY AN AGENT WHO EARNED COMMISSION. FURTHER, THE REVENUE AUTHORITIES HAVE FAILED TO APP RECIATE THE FACT THAT THE ASSESSEE HAD NOT TRANSFERRED THE LAND AS THE OWNER OF THE PROPERTY. HE HAS MERELY TRANSFERRED THE LAND AS THE POWER OF ATTORNE Y HOLDER. 65. ON THE CONTRARY, LD. DR OPPOSED THE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED AS UNDER: 1. THE DETAILS OF LAND DEALS WERE AS UNDER: 2. SR. DATE DETAILS OF PARTIES DOCUMENT KHASRA NO AREA AMOUNT NO. 1. 07.12.2005 SHANKAR SADHWANI TO AGREEMENT 278-283, 5.493 9,88,600 VIKAS VIRANI TO SELL 270,496, ACRES' 0 272 - 275 2. 07.12.2005 SHANKAR SADHWANI TO POWER OF 270,272- - VIKAS VIRANI ATTORNEY 274,275, 278-283,496 3. 24.04.2006 VIKAS VIRANI TO TEJPAL AGREEMENT 5.50 ACRES 10,00,000 PATIDAR TO SELL -- 4. 15.03.2007 TEJPAL PATIDAR TO AGREEMENT 270,273 - 2.77 ACRES 16,00,000 SANDHYA AGRAWAL & TO SELL 275,278- OF 8.27 SMC I.T.A.72 OF 2019 VIKAS VIRANI 4 OTHERS 283,496 ACRES 31.03.2007 SHANKAR SADHWANI, SALE DEED 8.275 16,00,000 5. BHARAT KESWANI (THROUGH ACRES POA VIKAS VIRANI) TO SMT. SANDHYA AGRAWAL & OTHERS ._. 3. THUS, ASSESSEE ENTERED INTO AN AGREEMENT WITH SHANK AR SADHWANI 0 FOR ACQUIRING THE LAND, FOR RS. 9,88,600 UNDER ATTORNEY AND GAVE IT TO TEJPAL PATIDAR FOR RS . 10,00,000. 4. IN THIS TRANSACTION ASSESSEE EARNED A COMMISSION OF RS. 11,400. SINCE THE INCOME WAS BELOW EXEMPTION LIMIT, NO RETURN WAS FILED BY T HE ASSESSEE. 5. IT IS ONLY TEJPAL YADAV, WHO SOLD THE LAND TO SANDH YA AGRAWAL AND OTHERS FOR RS. 16 LAKHS. SINCE THE TITLE WAS IN THE NAME OF SHANKAR S ADHWANI, HIS NAME WAS REFLECTED IN REGISTRY AND SINCE THE POWER OF ATTORNEY VO(AS I N THE NAME OF ASSESSEE VIKAS VIRANI; THUS, HIS NAME WAS APPEARING IN THE REGISTR Y. 6. IT IS THEREFORE SUBMITTED THAT NO INCOME, EXCEPT CO MMISSION OF RS. 11,400 WAS EARNED BY THE ASSESSEE. THUS, NO ADDITION IS CALLED FOR. , 6. I HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. I HAVE PERUSED THE DOCUMENTS FILED BY THE ASSESSEE. FROM THE REGISTERE D SALE DEED FURNISHED BY THE ASSESSEE, IT IS NOTICED THAT THE SALE DEED WAS EXECUTED BY ONE SHRI TEJPAL PATIDAR WHO HAD ENTERED INTO AGREEMENT TO SALE WITH THE ORIGINAL LAND OWNERS NAMELY SHRI SHANKAR SADHWANI S/O SHRI DHARMPRAKASH SADHWANI AND SHRI BHARAT KESWANI S/O S.K. KESWANI. I FIND NO MENTION IN THIS FACT IN THE ASSESSMENT ORDER, IT IS ALSO NOT CLEAR WHETHER THE SALE DEED WAS PLACED BEFORE THE ASSESSING OFFICER. UNDER THESE FACTS, I THEREFO RE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ASSESSMENT TO THE FILE OF THE ASSESSING OFFICER FOR MAKING DE NOVO ASSESSMENT. SMC I.T.A.72 OF 2019 VIKAS VIRANI 5 7. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 04 .01. 2021. SD/- (KUL BHARAT) JUDICIAL MEMBER INDORE; DATED : 04/01/2021 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE