DCIT, Kanpur V. Smt. Sushma Agarwal, Kanpur

ITA 739/LKW/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8141 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 22-08-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 13-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Sale consideration of property below Jantri Value; Capital asset; Document seized; Opportunity of being heard; Documents seized
• Section: 50C; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A : LUCKNOW BEFORE SHRI S. K. YADAV, JUDICIAL MEMBER AND SHRI B. R. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 739 /LKW/ 2010 ASSESSMENT YEAR: 200 4 - 200 5 DY. C.I.T., VS. SMT. SUSHMA AGARWAL, CENTRAL CIRCLE - 1, 117/H - 2/100, PANDU NAGAR, KANPUR. KANPUR. PAN:ABDPA9699P (APPELLANT) (RESPONDENT) APPE LLANT BY : SHRI PRAVEEN KUMAR, CIT (D.R.) RESPONDENT BY : NONE DATE OF HEARING : 22/08/2012 DATE OF PRONOUNCEMENT :04/09/2012 ORDE R PER B. R. JAIN: THIS APPEAL BY REVENUE AGAINST THE ORDER DATED 05/10/2010 OF LEARNED CIT(A) - I, KANPUR RAISES THE FOLLOWING GROUNDS: 1. T HE CIT (A) ERRED IN ALLOWING THE ADDITION OF ` 50,000/ - TREATING IT TO BE EXPLAINED AGRICULTURE INCOME WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NEITHER PROVED THE BONAFIDEY OF AGRICULTURAL OPERATION NOR COMPUTED THE AGRICULTURE INCOME AS PROVIDED IN PART - IV OF FINANCE ACT. 2. THAT THE CIT(A) ERRED IN DELETING THE ADDITION OF ` 12,64,133/ - AS UNEXPLAINED CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE IGNORING THE FACT THAT THE ASSESSEE HAS FAILED TO OFFER ANY EXPLANATION BEFORE THE ASSESSING OFFICER DESPITE THE SPECIFIC 2 OPPORTUNITIES GIVEN AND HAS ALSO NOT DISCHARGED HIS ONUS AS PROVIDED U/S.68 OF THE I.T. ACT . 3. THAT THE CIT(A) ERRED IN DELETING THE ADDITION OF ` 41,13,893 / - MADE BY THE AO BY APPLYING SECTION 50C OF THE I.T. ACT, 1961 AND ALSO IGNORING THE ENQUIRY REPORT U/S. 1 31( 1 )(D) SUBMITTED BY THE ADIT (INV.), GHAZIABAD AND CIRCULAR OF STAMP VALUATION AUT HORITIES SIGNED BY THE ASSTT. STAMP COMMISSIONER. 4. THAT THE ORDER OF THE LD. CIT (A) BEING ERRONEOUS IN LAW AND ON FACTS BE VACATED AND THE ORDER OF THE AO BE RESTORED. 5. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANY ONE OR MORE OF THE GROUNDS OF THE A PPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 2. IN GROUND NO. 1, BRIEFLY, THE FACTS ARE THAT THE ASSESSEE DECLARED AGRICULTURAL INCOME OF ` 50,000/ - . THE ASSESSING AUTHORITY, HOWEVER, REQUIRED THE ASSESSEE TO FURNISH DETAILS OF AGRICULTURAL INCOME AND OTHER RELEVANT INFORMATION. SINCE THE ASSESSEE DID NOT PROVIDE SUCH DETAILS, THE ASSESSING OFFICER TREATED THE AMOUNT OF ` 45,000/ - AS INCOME FROM UNDIS CLOSED SOURCES BUT IN THE COMPUTATION HE ADDED THE ENTIRE INCOME OF ` 50,000/ - AS ASSESSEES INCOME FROM OTHER SOURCES. 3. THE LEARNED CIT(A), T OOK NOTE OF THE FACT THAT THE ASSESSEE OWNS 17 BIGHA, 1 BISWAS AND 12 BISWANSI OF AGRICULTURAL LAND AT RANIA, DI STT. KANPUR (DEHAT) AND DETAILS OF KHASRA NUMBER WERE ALSO ON THE RECORD OF THE ASSESSING OFFICER IN ITS EARLIER YEAR S ASSESSMENT AND HISTORY THAT THE ASSESSEE HAS DECLARED AGRICULTURAL INCOME FROM YEAR TO YEAR THAT STAND S ADMITTED BY THE DEPARTMENT. TH E DISCLOSURE OF INCOME ON TH AT BASIS FOR THE YEAR UNDER 3 CONSIDERATION ALSO STOOD ACCEPTED BY THE LEARNED CIT(A) . T HE ADDITION OF ` 50,000/ - MADE BY THE ASSESSING OFFICER , THEREFORE, STOOD DELETED. 4. HAVING HEARD LEARNED D.R. EX - PARTE QUA ASSESSEE AND KEE PING IN VIEW THE PAST HISTORY OF THE CASE AS WELL AS THE LAND HOLDING AND GENERATION OF AGRICULTURAL INCOME THERE FROM, IN THE ABSENCE OF ANY CONTRARY MATERIAL ON RECORD REQUIRES NO INTERFERENCE IN THE WELL REASONED DECISION TAKEN BY LEARNED CIT(A). GROUND RA ISED IN APPEAL , THEREFORE, STAND S REJECTED. 5. IN GROUND NO. 2, BRIEFLY, THE FACTS ARE THAT THE ASSESSING OFFICER FOUND THAT THERE WERE CREDIT ENTRIES APPEARING IN THE BANK ACCOUNT NO. 3732 AT UNION BANK OF INDIA, KOSHALPURI BRANCH, KANPUR. SINCE THE AS SESSEE DID NOT FILE ANY SUPPORTING DOCUMENTS OR CONFIRMATION WITH RESPECT TO THE CREDIT ENTRIES SO APPEARING IN HER BANK ACCOUNT, THE ASSESSING OFFICER PROCEEDED TO TREAT THE SAME AS UNEXPLAINED CREDIT IN THE BANK ACCOUNT AND MADE ADDITION S THEREOF U/S 68 OF THE ACT AS ASSESSEES INCOME. 6. THE LEARNED CIT(A), ON APPRECIATION OF FACTS, FOUND THAT OUT OF THE TOTAL CREDITS OF ` 12,80,300/ - , AN AMOUNT OF ` 7,38,570/ - WAS TOWARDS ADVANCE AGAINST SALE OF PROPERTY, WHICH HAS ALREADY COME FOR CONSIDERATION OF THE ASSESSING OFFICER FOR ASSESSMENT AS SALE CONSIDERATION. THE SAME, THEREFORE, COULD NOT BE TREATED AS INCOME OF THE ASSESSEE AGAIN BY INVOKING THE PROV ISIONS OF SECTION 68 OF THE ACT. AS REGARDS BALANCE OF THE AMOUNT, THE LEARNED CIT(A), AT INTERNAL 4 PAGE 11 AND 12 OF THE IMPUGNED ORDER, HAS EXAMINED THE CREDIT ENTRIES AND FOUND THEM EXPLAINED AS FOLLOWS: ( I ) THAT IN CASE OF LOAN FROM CITY BANK IT IS SUBMITTED THAT THOUGH THE LOAN WAS OBTAINED BY THE APPELLANT, THE REPAYMENT OF SAME WAS MADE BY M/S L. KANT PAPER MILLS LTD. OF WHICH THE APPELLANT IS A DIRECTOR. THE LOAN TO THE APPELLANT WAS ACCOUNTED FOR BY L. KANT PAPER MILLS LTD. BY CREDITING THE ACCOUNT OF CITY BANK AND DEBITING THE LOAN ACCOUNT OF THE APPELLANT. COPY OF ACCOUNT OF CITY BANK FOR F. Y. 2004 - 2005 AND 2005 - 2006 & OF SUSHMA AGARWAL FOR F. Y. 2003 - 2004 & 2004 - 2005 ARE ENCLOSED FOR YOUR KIND PERUSA L. THE ABOVE FURTHER PROVES THE SOURCE OF CREDIT TO BE GENUINE AND NOT UNEXPLAINED. ( II ) IT IS ALSO SUBMITTED THAT THE LOAN STATEMENT OF CITY BANK SHOWS THE PRINCIPAL LOAN AMOUNT AT ` 4,00,600/ - . THIS IS BECAUSE OF CHARGES DEDUCTED BY BANK FOR ` 1320.00 WHICH HA VE BEEN DEBITED TO HIRE PURCHASE CHARGES ACCOUNT (COPY OF WHICH IS ALSO ENCLOSED). 6.1 THE LEARNED CIT(A) ALSO FOUND THE CREDIT ENTRIES DULY SUPPORTED AND EXPLAINED AS UNDER: (I) CONFIRMED STATEMENT OF ACCOUNT FROM OM TEXTILES (PROPRIETOR SANJAY AGARWAL) SHOWING THEREIN PAN, ADDRESS, DETAILS OF RANGE IN WHICH ASSESSED & ALSO THE FACT THAT THE AMOUNT IS BY WAY OF REPAYMENT OF LOAN BY OM TEXTILES, GIVEN TO THEM BY THE ASSESSEE IN THE SAME YEAR ON 10 - 03 - 2004. (FOR READY REFERENCE THE SAME IS ENCLOSED HERETO AND MARKED AS ANNEURE - 4). (II) LOAN STATEMENT OF SMT. SUSHMA AGARWAL RECEIVED FROM CITI BANK. (FOR READY REFERENCE THE SAME IS ENCLOSED HERETO AND MARKED AS ANNEURE - 5). ( III ) STATEMENT OF ACCOUNT OF SUSHMA AGARWAL IN THE BOOKS OF L. KANT PAPER MILLS LTD. FOR FINANCIAL YEAR 2003 - 04 AND 2004 - 05. 5 (FOR READY REFERENCE THE SAME IS ENCLOSED HERETO AND MARKED AS ANNEURE - 6). ( IV ) STATEMENT OF ACCOUNT OF CITI BANK (LOAN ACCOUNT NO. 313 - 929361) IN THE BOOKS OF L. KANT PAPER MILLS LTD. FOR FINANCIAL YEAR 2004 - 05 AND 2005 - 06. (FOR READY REFERENCE THE SAME IS ENCLOSED HERETO AND MARKED AS ANNEURE - 7). ( V ) STATEMENT OF ACCOUNT OF HIRE PURCHASE CHARGES IN THE BOOKS OF L. KANT PAPER MILLS LTD. FOR FINANCIAL YEAR 2004 - 05. (FOR READY REFERENCE THE SAME IS ENCLOSED HERETO AND MARKED AS ANNEURE - 8). THAT YOUR KINDSELF WILL APPRECIATE THAT IN THE CASE OF CREDIT OF ` 1,25,000 / - THE ASSESSEE, BY FILING THE CONFIRMATION STATEMENT FROM THE CREDITOR WHICH GIVES HIS NAME, A DDRESS, PAN TOGETHER WITH DETAILS OF RANGE IN WHICH ASSESSED AND ALSO REVEALS THE FACT THAT THE TRANSACTION WAS THROUGH THE BANK, THE ASSESSEE HAS DISCHARGED THE ONUS CAST UPON HIM TO PROVE THE IDENTITY AND CAPACITY OF THE CREDITOR AS ALSO THE GENUINENESS OF THE TRANSACTION. IT IS ALSO A FACT THAT THE AMOUNT OF ` 1,25,000 / - WAS REPAYMENT OF LOAN ADVANCED BY THE ASSESSEE TO M/S OM TEXTILES. SINCE THE CREDITS WERE FOUND EXPLAINED, THE ADDITION SO MADE U/S 68 STOOD DELETED. 7. HEARD LEARNED D.R. EX - PARTE QUA ASSESSEE WITH REFERENCE TO MATERIAL ON RECORD. ADMITTEDLY, THE ASSESSEE DOES NOT MAINTAIN BOOKS OF ACCOUNT. BANK STATEMENT IS NOT A BOOK OF THE ASSESSEE. CREDIT ENTRIES APPEARING IN THE BANK BOOK CANNOT BE SUBJECTED TO AD DITION U/S 68 OF THE ACT AS THE BANK BOOK IS NOT THE BOOK OF THE ASSESSEE WITHIN THE MEANING OF SECTION 68 OF THE ACT. THIS CAN BE FOUND SO HELD FROM THE JUDGMENT BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS BHAICHAND H. GANDH I [1983] 141 ITR 67 (BOM) 6 AND HON'BLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS TAJ BOREWELLS [2007] 291 ITR 232 (MAD) . IN THIS VIEW OF THE MATTER AND THE EXPLANATION REGARDING THE DEPOSITS IN ASSESSEES BANK ACCOUNT HAVING BEEN FOU ND SATISFACTORY BY THE LEARNED CIT(A) AND IN THE ABSENCE OF ANY CONTRARY MATERIAL LAID BEFORE US BY THE REVENUE, THE DECISION REACHED BY HIM IN DELETING THE ADDITION S DO NOT CALL FOR ANY INTERFERENCE. GROUND IN APPEAL BY REVENUE, THEREFORE, STANDS REJECTE D. 8. IN GROUND NO. 3 IN APPEAL, BRIEFLY, THE FACTS BEFORE THE ASSESSING AUTHORITY ARE THAT THE ASSESSEE CLAIMED TO HAVE SOLD ITS HOUSE PROPERTY BEARING NO. B - 4, SECTOR - 16, NOIDA FOR ` 5 LAKHS AND DECLARED A LONG TERM CAPITAL GAIN OF ( - ) ` 1, 86,107/ - IN THE RETURN OF INCOME FILED BY HER . INITIALLY THIS PROPERTY WAS CLAIMED TO HAVE BEEN PURCHASED ON 03/10/1997 FOR A CONSIDERATION OF ` 4,90,500/ - . THE ASSESSEE, THROUGH A LETTER , BROUGHT ON RECORD THAT HE HAS RECEIVED AN AMOUNT OF ` 5 LAKHS AS AD VANCE FOR SALE OF THIS PROPERTY AND IT ALSO HANDED OVER THE POSSESSION THEREOF AND THUS THE TRANSFER WITHIN THE MEANING OF SECTION 2(47)(V) OF THE ACT WAS COMPLETE. THE ASSESSING OFFICER, THEREAFTER REQUIRED THE ASSESSEE TO FURNISH THE VALUE AS PER STAMP VALUATION AUTHORITY FOR THE PURPOSE OF SECTION 50C OF THE ACT. THIS, HOWEVER, WAS NOT FURNISHED BEFORE THE ASSESSING AUTHORITY. THE ASSESSING OFFICER, THEREAFTER PROCEEDED TO WRITE A LETTER TO THE STAMP VALUATION AUTHORITY AND ALSO ISSUED COMMISSION U/S 131(1)(D) OF THE ACT TO THE ADIT (INV.), GHAZIABAD VIDE HIS LETTER DATED 12/12/2006, WHO IN 7 TURN SENT A CIRCULAR OF THE STAMP VALUATION AUTHORITY SIGNED BY THE ASSTT. STAMP COMMISSIONER SHOWING VALUE OF THE LAND AT ` 43,20,000/ - . THE ASSESSING OFFICER, THE REAFTER APPLYING RATE OF ` 5,000/ - PER SQ. MTR. TOWARDS COST OF CONSTRUCTION , DEEMED FULL VALUE OF CONSIDERATION AT ` 48 LAKHS IN TERMS OF SECTION 50C OF THE ACT. THIS VALUATION WAS ALSO SUPPORTED BY WEALTH TAX VALUATION CALCULATED ON RENTAL BASIS . T HE ASSESSING AUTHORITY THEREAFTER, ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE REQUIRING HIM TO SHOW CAUSE AS TO WHY THE TOTAL VALUE, AS WORKED OUT FOR THE STAMP DUTY PURPOSES AT ` 48 LAKHS, MAY NOT BE TAKEN AS FULL VALUE OF CONSIDERATION OF H ER 50% SHARE OF TH E PROPERTY A S PER THE PROVISIONS OF SECTION 50C OF THE ACT. 8.1 IN RESPONSE THERETO, THE ASSESSEE CLAIMED THAT S HE DOES NOT RESIDE AT KANPUR AND SHIFTED TO CALCUTTA. FURTHERMORE, S HE DOES NOT HAVE TITLE OF THE PROPERTY TILL DATE. IT WAS ALSO CLAIMED THAT THE INITIAL AMOUNT RECEIVED WAS ` 5 LAKHS AND FURTHER AN AMOUNT OF ` 7,38,530/ - HAS ALSO BEEN RECEIVED BY THE ASSESSEE AGAINST THE SAID PROPERTY AND POSSESSION HAS BEEN HANDED OVER. SHE ALSO AN AVERMENT THAT THERE WAS NO SALE OF PROPERTY AND THE CAPITAL GAIN S HAS WRONGLY BEEN D ECLARED IN THE RETURN OF INCOME FILED BY HER. 8.2 THE AFORESAID REPLY OF THE ASSESSEE , HOWEVER , WAS NOT FOUND SATISFACTORY. THE ASSESSING AUTHORITY THEREAFT ER, PROCEEDED TO ADOPT THE FULL VALUE OF CONSIDERATION AT ` 48 LAKHS ON THE BASIS OF HIS WORKING IN TERMS OF PROVISIONS OF 8 SECTION 50C OF THE ACT AND AFTER ALLOWING INDEXATION OF COST , ARRIVED AT LONG TERM CAPITAL GAIN OF ` 41,13,893/ - AND MADE THE ADDITION ACCORDINGLY. 9. IN APPEAL BEFORE LEARNED CIT(A), THE ASSESSEE REITERATED THE FACT THAT S HE HAD PURCHASED 50% SHARE IN THE PROPERTY VIDE UNREGISTERED AGREEMENT TO SELL DEED DATED 03/10/1997 FROM M/S EL. KANT FINMAN LTD., 117/H - 1/232, PANDU NAGAR, KANPUR. THE SAID SHARE OF THE ASSESSEE STOOD SOLD IN ASSESSMENT YEAR 2004 - 2005 VIDE UNREGISTERED AGREEMENT TO SELL BY RECEIVING AN AMOUNT OF ` 5 LAKHS FROM ONE SHRI SALIL CHAUDHARY AS ADVANCE AND POSSESSION ALSO STOOD HANDED OVER . DURING THE ASSESSMENT PROCEEDINGS ITSELF, THE ASSESSEE HAD SUBMITTED THAT AN AMOUNT OF ` 7,38,530/ - , CREDITED IN HER BANK ACCOUNT, WAS ALSO RECEIVED TOWARDS SALE OF HER HOUSE AT NOIDA. THE AGREEMENT TO SELL, RETRIEVED OUT OF THE SEIZED DOCUMENTS BY THE CEN TRAL EXCISE AUTHORITY, REVEALED THE SALE CONSIDERATION OF THE WHOLE PROPERTY AT ` 25,60,600/ - OUT OF WHICH ASSESSEES SHARE BEING 50%, AMOUNTED TO ` 12,80,300/ - . THE ASSESSEE, HOWEVER, OBJECTED TO THE ADOPTION OF FULL VALUE OF CONSIDERATION ON THE BASIS OF CIRCLE RATE COLLECTED IN PROCEEDINGS U/S 131(1)(D) OF THE ACT FROM THE STAMP VALUATION AUTHORITY IN TERMS OF PROVISIONS OF SECTION 50C OF THE ACT AS THERE WAS NO TRANSFER REGISTERED BY THE ASSESSEE WHERE A VALUE CAN BE SAID TO HAVE BEEN ADOPTED OR ASSESSE D BY THE STAMP VALUATION AUTHORITY FOR INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT AND THUS, THE VALUE TAKEN BY THE ASSESSING AUTHORITY WAS UNJUST AND UNCALLED 9 FOR. RELIANCE WAS ALSO PLACED ON THE JUDGMENT BY JODHPUR BENCH OF I.T.A.T. IN THE CASE OF NAVNEET KUMAR THAKKAR 298 ITR (AT) 42. 10. THE LEARNED CIT(A), AFTER CONSIDERING THE ENTIRE FACTS ON RECORD WITH REFERENCE TO THE AFORESAID JUDGMENT BY JODHPUR BENCH OF I.T.A.T. IN THE CASE OF NAVNEET KUMAR THAKKAR 298 ITR (AT) 42, RECORDED THE ADMITT ED FACT THAT THE FULL VALUE OF CONSIDERATION ADOPTED BY THE ASSESSING AUTHORITY FOR THE PURPOSE OF DETERMINING THE LONG TERM CAPITAL GAIN IN THIS CASE IS NOT DERIVED FROM THE REGISTERED DEED FOR THIS PURPOSE. THE COST OF CONSTRUCTION HAS ALSO BEEN ADOPTED ON ESTIMATE BASIS WITHOUT GIVING ANY BASIS FOR DOING SO AND VALUE ADOPTED ON THE BASIS OF ENQUIRIES HAS NO REASONABLE BASIS AND SUFFERS FROM ANY SPECIFIC AND DETAILED WORKING ON RECORD FOR THAT PURPOSE. THAT APART, THE PROPERTY IS NOT TRANSFERRED THROUG H A REGISTERED SALE DEED AND AS SUCH THE VALUATION OF THE PROPERTY FOR THE PURPOSE OF STAMP DUTY HAS NOT BEEN DONE BY ANY SUCH AUTHORITY. SINCE THE VALUE HAS NOT BEEN ADOPTED OR ASSESSED BY STAMP VALUATION AUTHORITY IN THE CASE OF THE APPELLANT, HE FOUND THAT THE ESSENTIALS FOR THE PURPOSE OF SECTION 50C OF THE ACT HAVE NOT BEEN SATISFIED. HE, THEREFORE, REACHED THE CONCLUSION THAT THE LEARNED ASSESSING AUTHORITY HAS ERRED IN LAW AND ON FACTS IN ADOPTING THE FULL VALUE OF CONSIDERATION AT ` 48 LAKHS FOR C OMPUTING LONG TERM CAPITAL GAIN S AND THERE BEING NO JUSTIFICATION IN RESORTING TO DEEMING PROVISIONS OF SECTION 50C OF THE ACT, THE ADDITION SO MADE STOOD DELETED. 10 1 1 . THE REVENUE, IN APPEAL, HOWEVER, CONTENDS THAT THE ASSESSING AUTHORITY HAS COLLECTED THE VALUE FROM STAMP VALUATION AUTHORITY BY EXERCISING POWER U/S 131(1)(D) OF THE ACT BY ISSUING SUCH COMMISSION THROUGH ADI (INV.), GHAZIABAD. IN ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING AUTHORITY, THE RESPONDENT HAS BEEN MAKING CONTRARY CLAIMS AND SHIFTING HER STAND IN AS MUCH AS IN THE RETURN OF INCOME S HE CLAIMED TRANSFER OF PROPERTY GIVING RISE TO LONG TERM CAPITAL LOSS OF ` 1,86,107/ - UNDER THE HEAD INCOME FROM CA PITAL GAINS BUT IN ASSESSMENT PROCEEDINGS S HE SOUGHT TO WITHDRAW H ER DECLARATION WITHOUT REVISING THE RETURN BY CONTENDING THAT THERE WAS NO SALE OF THE PROPERTY IN H ER CASE, WHICH COULD GIVE RISE TO INCOME FROM CAPITAL GAIN S . THE AMOUNT OF CONSIDERATION HAS ALSO DIFFERED FROM THAT OF ` 5 LAKHS DISCLOSED IN THE RETURN OF INCOME. THE LEARNED CIT(A) DELETED THE ENTIRE ADDITION BY HOLDING THAT PROVISIONS OF SECTION 50C ARE NOT APPLICABLE AND THUS DO NOT EMPOWER THE ASSESSING AUTHORITY TO TAKE FULL VALUE OF C ONSIDERATION ON TH AT BASIS AS SUCH A VALUE WAS NEITHER ADOPTED NOR ASSESSED BY THE STAMP VALUATION AUTHORITY IN H ER CASE. HE HAS THUS ERRED IN DELETING THE ENTIRE ADDITION. 1 2 . WE HAVE HEARD LEARNED D.R. EX - PARTE QUA ASSESSEE. THE ASSESSEES OWN DECLARA TION IN THE ORIGINAL RETURN OF INCOME IS THAT THE PROPERTY UNDER CONSIDERATION STOOD TRANSFERRED GIVING RISE TO LONG TERM CAPITAL LOSS TO H ER AND ASSESSING AUTHORITY HAS ACTED ON THE BASIS OF SUCH STATEMENT MADE IN THE RETURN OF INCOME BY H ER . EVEN BEFOR E THE LEARNED CIT(A), THE ASSESSEES CASE WAS NOT 11 THAT THE PROPERTY HAS NOT BEEN TRANSFERRED BY THE ASSESSEE. THE POSSESSION HAS ALSO BEEN HANDED OVER AND THUS IT WAS A TRANSFER IN PART PERFORMANCE IN TERMS OF SECTION 2(47)(V) OF THE ACT. E SSENTIALLY, THE REFORE, ASSESSEES INCOME FROM TRANSFER OF PROPERTY WAS LIABLE TO BE ASSESSED UNDER THE HEAD LONG TERM CAPITAL GAIN S . 1 2 .1 IT IS ALSO ADMITTED FACT THAT THE ASSESSEE HAD PURCHASED 50% SHARE IN THE PROPERTY UNDER AN AGREEMENT TO S ELL AND TOOK POSSESSION. THE PROPERTY SO ACQUIRED STOOD SOLD THROUGH AN AGREEMENT AND POSSESSION ALSO WAS GIVEN . IT IS ALSO ADMITTED THAT NO SALE DEED OR CONVEYANCE DEED WAS REGISTERED OR EXECUTED BY THE ASSESSEE AND THUS THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRAN SFER BY THE RESPONDENT ASSESSEE OF H ER CAPITAL ASSET NEVER CAME TO BE ADOPTED OR ASSESSED IN H ER CASE BY THE STAMP VALUATION AUTHORITY FOR THE PURPOSE OF PAYMENT OF STAMP DUTY. SECTION 50C OF THE ACT AS IT STOOD IN THE RELEVANT YEAR, DEEMS SALE CONSIDERAT ION TO BE THE VALUE SO ADOPTED OR ASSESSED IN RESPECT OF THE CAPITAL ASSET OF THE ASSESSEE AS FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER FOR THE PURPOSE OF SECTION 48 OF THE ACT ONLY WHERE THE PROPERTY CAME TO BE REGISTERED BEFORE THE STAMP DUTY AUTHORITY . IT ENVISAGE S ONLY THAT VALUE WHICH HAS BEEN ADOPTED OR ASSESSED FOR THE PURPOSE OF STAMP DUTY IN RESPECT OF SUCH TRANSFER OF THE PROPERTY AND NOT THE VALUE OF PROPERTY OF ANY OTHER PERSON. IN THE RESPONDENTS CASE, THE ASSESSING AUTHORITY, HOWEVER, RESORTED TO THE CIRCLE RATE IN GENERAL AS FULL VALUE OF CONSIDERATION FOR THE PURPOSE OF SECTION 48 OF THE ACT, WHICH IS NOT FOUND TO BE A VALUE ADOPTED OR 12 ASSESSED IN RESPECT OF HE R PROPERTY. THE PROVISIONS OF SECTION 50C, THEREFORE, COULD NOT HAVE BEEN APPLIED NOR EVEN THE WEALTH TAX VALUATION WAS RELEVANT FOR THIS PURPOSE AS THE ASSESSING AUTHORITY HIMSELF IS NOT AN EXPERT ON THE MATTER OF VALUATION AND CANNOT COMMENT ON TECHNICA L MATTERS AS LAID DOWN BY APEX COURT IN THE CASE OF SARASWATI INDUSTRIAL SYNDICATE LTD. VS COMMISSIONER OF INCOME - TAX [1999] 237 ITR 1 (SC) . THE LEARNED CIT(A), THEREFORE, ON APPRECIATION OF FACTS AND THE LAW AS CONTAINED U/S 50C OF THE ACT , WAS FULLY JU STIFIED IN FOLLOWING THE APPELLATE TRIBUNAL DECISION IN THE CASE OF NAVNEET KUMAR THAKKAR (SUPRA) AND THEREBY COMING TO THE CONCLUSION THAT FULL VALUE OF CONSIDERATION IN HER CASE COULD NOT BE TAKEN AS DEEMED VALUE FOR THE PURPOSE OF SECTION 4 8 ON THE BASI S OF CIRCLE RATE SUPPLIED BY THE STAMP VALUATION AUTHORITY AS ASSESSEES PROPERTY WAS NOT REGISTERED PROPERTY BEFORE SUCH AUTHORITY. IN THE LIGHT OF THE AFORESAID ANALYSIS AND UPON DUE APPLICATION OF MIND TO THE FACTS AND LAW, WE DO NOT FIND ANY ERROR COM MITTED BY LEARNED CIT(A) IN SETTING ASIDE THE ADDITION MADE ON THE BASIS OF SECTION 50C OF THE ACT, WHICH OTHERWISE COULD NOT HAVE BEEN INVOKED IN A CASE LIKE THIS AND THUS HIS ORDER ON THAT ACCOUNT DOES NOT REQUIRE ANY INTERFERENCE. 12.2 IT HOWEVER, TR ANSPIRES FROM THE RECORD THAT THE AGREED CONSIDERATION FOR THIS PROPERTY IS MORE THAN WHAT APPARENTLY THE ASSESSEE HAS STATED IN HER ORIGINAL RETURN OF INCOME AND THIS FACT IS FOUND SO SPELT OUT IN THE FACTS AND AVERMENTS MADE BEFORE THE LEARNED CIT(A) BY THE ASSESSEE H ER SELF WHEREBY IT 13 SAYS THAT AN AGREEMENT FOR TRANSFER OF THE PROPERTY HAS BEEN DISCOVERED FROM THE DOCUMENTS SEIZED BY THE CENTRAL EXCISE AUTHORITY FROM THEIR PREMISES. THAT APART, THE RESPONDENT HAS ALSO ADMITTED TO BE A CO - OWNER OF THE P ROPERTY. THAT BEING SO, THE ASSESSING OFFICER HAVE TO RECOMPUTE THE INCOME UNDER THE HEAD INCOME FROM CAPITAL GAIN S HAVING REGARD TO THE SALE CONSIDERATION OF THE PROPERTY DISCLOSED, IF ANY, IN THE HANDS OF THE CO - OWNER AS WELL AS THE AGREED SALE CONSIDERA TION IN ASSESSMENT AS WELL AS IN THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) AFTER AFFORDING REASONABLE AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 1 3 . IN THE RESULT, THE APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES ONLY. (ORDER PRONOUNCED IN THE OPEN COURT ON 04/09/2012 ) SD/. SD/. ( S. K. YADAV ) ( B. R. JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04/09/2012 *SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR