Smt. Vimla Singhvi, JODHPUR V. DCIT, JODHPUR

ITA 84/JODH/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4746 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-12-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 19-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K DAS
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Revision of order; Cost of acquisition; Revised return; Reassessment proceedings
• Section: 143(3); 50C; 153A; 139(5); 132; 10

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, JODHPUR BEFORE SHRI B.P JAIN ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY JUDICIAL MEMBER ITA NO.84/JODH/2015 ASSESSMENT YEAR:2007 - 08 SMT. VIMLA SINGHVI VS. DCIT C/O. SHRI. U.C. JAIN, ADVOCATE CENTRAL CIRCLE - 2 SHATRUNJAY HARI SINGH NAGAR, JODHPUR PALI ROAD, JODHPUR PAN NO. ACAPS1714R (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAJENDRA JAIN RESPONDENT BY : SH. A.K. DAS DATE OF HEARING : 20/12/2016 DATE OF PRONOUNCEMENT : 22/12/2016 ORDER PER PARTHA SAR A THI CHAUDHURY , JM T HIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) CENTRAL, JAIPUR DT. 26/02/2015, ON THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) GROSSLY ERRED IN SUSTAINING AN ADDITION OF RS. 12,350/ - AS INCOME FROM OTHER SOURCES AS AGAINST SHOWN, AS INCOME FROM AGRICULTURAL IN THE ORIGINAL RETURN FILED U/S 139(1) AND PROCESSED A S SUCH AS 143(1)(A). 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN ABSENCE OF ANY MATERIAL FOUND AS A RESULT OF SEARCH U/S 132(1) THE LD. CIT(A) GROSSLY ERRED IN SUSTAINING THE ADDITION OF RS. 12,350/ - AS INCOME FROM OTHER SOURCES PARTICUL ARLY WHEN SUCH ADDITION WERE DELETED BY THE HONBLE TRIBUNAL IN THE GROUP CASES EARLIER AND THE DECISION OF WHICH WAS RELIED BEFORE THE LD. CIT(A). 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LIGHT OF MATERIAL PLACED, ON RECORD THE LD. CI T(A) GROSSLY ERRED IN SUSTAINING AN ADDITION OF RS. 2,12,499/ - , MADE BY AO IN RESPECT OF WRONG TERM CAPITAL GAIN IN THE HANDS OF APPELLANT. 2 4. WITHOUT PREJUDICED TO THE ABOVE AND IN THE ALTERNATIVE: - A] THE ADDITION MADE AND SUSTAINED IS BEYOND THE SCOPE OF PROVISIONS OF SECTION 153C. B] THAT ENTIRE SALE CONSIDERATION AS WORKED OUT U/S 50C STOOD TAXED EVEN BEFORE THE INITIATION OF SEARCH IN THE HANDS OF RESPECTIVE CO - OWNERS AND EVEN IN THE ASSESSMENT PASSED IN THE HANDS OF CO - OWNERS AND AS SUCH THE ADDITIO N SUSTAINED IS TOTALLY ARBITRARY AND LIABLE TO BE DELETED. C] THAT NO MATERIAL WAS FOUND AS A RESULT OF SEARCH WHICH SUGGEST CLAIM OF THE ASSESSEE AS UNTRUE. 5. THAT THE PETITIONER MAY KINDLY BE PERMITTED TO RAISE ANY ADDITIONAL OR ALTERNATIVE GROUNDS A T OR BEFORE THE TIME OF HEARING. 6. THE PETITIONER PRAYS FOR JUSTICE & RELIEF. 2. THE BRIEF FACTS APPEARING IN THIS CASE ARE THAT DURING THE COURSE OF SEARCH AT THE RESIDENCE OF SHRI UMMAID MAL SINGHVI ON 25/03/2008 CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED AND BASED ON WHICH NOTICE UNDER SECTION 153C OF THE ACT WAS ISSUED FOR FILING OF RETURN. IN RESPONSE TO THE ABOVE NOTICE ASSESSEE FILED RETURN ON 18/11/2009 DECLARING TOTAL INCOME OF RS. 4,87,895/ - FOR THE AY UNDER CONSIDERATION. THE ASSESSMENT WAS COMPLETED UNDER SECTION 153C R.W.S 153A & 143(3) OF THE INCOME TAX ACT WITH ASSESSED INCOME AT RS. 18,12,740/ - . 3. WITH REGARD TO THE GROUND NO. 1 & 2 ADDITION OF RS. 12,350,/ - AS INCOME FROM OTHER SOURCES AS AGAINS T SHOWN AS INCOME FROM AGRICULTURAL IN THE ORIGINAL RETURN , T HE AO HAS DISCUSSED THIS ISSUE IN PARA 6 AT PAGE 3 OF THE ASSESSMENT ORDER AND HELD THAT NO DOCUMENTARY EVIDENCE REGARDING AGRICULTURAL INCOME WAS FOUND AS SUCH HE TREATED THE SAME AS INCOME FROM OTHER SOURCES. 4. THAT AT THE TIME OF APPELLATE HEARING, ASSESSEE SUBMITTED TO SUPPORT THE CLAIM OF AGRICULTURAL INCOME , IT WAS EXPLAINED BEFORE THE AO THAT THE ASSESSEE PURCHASED 25 BIGHA S OF AGRICULTURE LAND SITUATED AT VILLAGE BAKARI, TEHSIL PARBATSAR DIST. NAGAUR IN THE YEAR 1996 AND SHE IS SHOWING INCOME FROM SUCH AGRICULTURAL LAND. IT WAS FURTHER EXPLAINED THAT IN THE A.Y. 2001 - 02 SHE EARNED THE INCOME FROM SUCH AGRICULTURAL LAND AT RS. 66,169/ - AND THE SAME WAS ACCEPTED BY THE A.O. IT WAS FURTHER E XPLAINED THAT INCOME SHOWN AT RS. 12,350/ - FROM SUCH 3 LAND IS REASONABLE LOOKING AT THE NATURE AND LOCATION OF THE LAND. THE AO MADE ADDITION OF RS. 12,350/ - BY TREATING AGRICULTURE INCOME AS INCOME FROM OTHER SOURCES . THE ASSESSEE SUBMITTED FURTHER THAT TH E AGRICULTURE INCOME WAS DULY RECORDED IN THE CAPITAL ACCOUNT FILED ALONGWITH REGULAR RETURN OF INCOME MADE PRIOR TO SEARCH. NO MATERIAL WAS FOUND AND SEIZED IN SEARCH RELATING TO AGRICULTURE INCOME WHICH SUGGESTS THAT THE AGRICULTURE INCOME EARNED BY THE ASSESSEE IS IN - GENUINE. THEREFORE, SUCH ADDITION IS DEHORS THE MATERIAL FOUND IN THE SEARCH AND PERTAINS TO REGULAR ASSESSMENT WHICH WAS NOT PENDING AT THE TIME OF INITIATION OF SEARCH. THE ASSESSMENT U/S 153C IS NOT A DENOVO ASSESSMENT BUT IS MADE AFTER S EARCH IS CONDUCTED IN ORDER TO ASSESS THE INCOME ON THE BASIS OF EVIDENCES COLLECTED AT THE TIME OF SEARCH. AS SUCH ALL THE ISSUES PERTAINING TO REGULAR ASSESSMENT WHICH WERE COMPLETE AT THE TIME OF INITIATION OF SEARCH CANNOT BE CONSIDERED IN THE ASSESSME NT MADE U /S 153C. HENCE, CONTENDED BY THE AR OF THE ASSESSEE THE ADDITION OF RS. 12,350/ - SO MADE CONTRARY TO SCOPE OF SEC 153C IS BAD IN LAW AND DESERVES TO BE DELETED. RELIANCE IS PLACED ON THE FOLLOWING DECISIONS. - SONCITY ALLOYS (P) LTD. VS. ACIT (20 09) 124 TTJ (JD) 674 - LMJ INTERNATIONAL LTD. VS. DCIT (2008) 119 TTJ(KOL) 214 - ACIT VS. RUPESH BHOLIDAS PATEL IN ITA NO. 2390 TO 2394 / AHD. /2007 ORDER DATED 25/01/2008. - ANIL KUMAR BHATIA VS. ACIT IN ITA NO. 2660 TO 2665/DEL/2009 ORDER DATED 01/01/2010 - CIT VS. SHRI RAM SINGH 217 CTR 345 (RAJ)[2008][PB PG 201 TO 207] 5 . THAT THE LD. CIT(A) ON CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSIONS MADE BY THE ASSESSEE HELD IN HIS ORDER THAT THE ASSESSEE COULD NOT CONTROVERT THE FINDINGS OF THE AO. THE DISALLOWANCE MADE BY THE AO IS CONSIDERED TO BE FAIR AND REASONABLE AND DOES NOT CALL FOR ANY INTERFERENCE AND ACCORDINGLY THE ADDITION BY THE AO WAS CONFIRMED BY THE LD. CIT(A). 4 6 . WE HAVE PERUSED THE CASE RECORDS AND WE FIND THAT THE ISSUE IS COVER ED SQUA RELY BY THE FOLLOWING DECISIONS OF THE COORDINATE BENCH OF ITAT, JODHPUR DT. 13/12/2013: 1. SMT. VILMLA SINGHVI, JODHPUR VS. ACIT IN ITA NO. 345/JODH/2013 2. SHRI VINOD SINGHVI(HUF), JODHPUR VS. ACIT IN ITA NO. 346 T 347/JODH/2013 3. SHRI UMMAID MAL SINGHVI, JODHPUR VS. ACTI IN ITA NO. 348,349,350, & 351/JODH/2013 WE CONCUR WITH THE FINDINGS OF THE COORDINATE BENCH OF ITAT, JODHPUR WHICH IS AS FOLLOWS: 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUG H THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSESSEE FILED THE ORIGINAL RETURN OF INCOME U/S 139(1) OF THE ACT BY SHOWING THE AGRICULTURAL INCOME AT RS. 95,231/ - AND THE INCOME DISCLOSED IN THE SAID RETURN WAS A CCEPTED BY THE DEPARTMENT. LATER ON, A SEARCH U/S 132 OF THE ACT WAS CARRIED OUT ON 25/3/2008. HOWEVER, NO INCRIMINATING DOCUMENT OR MATERIAL WAS FOUND DURING THE COURSE OF SEARCH BUT THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT U/S 153C OF THE ACT C ONSIDERED THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME, AS INCOME FROM OTHER SOURCES. A SIMILAR ISSUE HAS BEEN DECIDED BY THIS BENCH OF THE TRIBUNAL IN THE AFORESAID REFERRED TO CASE OF SHRI VISHAL DEMBLA VS. DCIT WHEREI N BY FOLLOWING THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S JAI STEEL (INDIA) VS. ACIT (2013) 259 CTR (RAJ.) 281, IT HAS BEEN HELD THAT IN THE ABSENCE OF RECOVERY OF ANY DOCUMENT OR INCRIMINATING EVIDENCE IN THE COURSE OF SEARCH , GIFTS ALREADY DISCLOSED BY THE ASSESSEE IN THE RETURNS FILED PRIOR TO THE SEARCH WHICH HAVE ATTAINED FINALITY, CANNOT BE DISTURBED IN THE ASSESSMENT U/S 153A OF THE ACT. RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 2.8 AND 2.9 OF THE SAID ORDER, WHICH READ AS UNDER: 2.8 IT WAS FOUND FOR A FACT THAT THE ASSESSEE HAD ALREADY SUBMITTED HIS RETURNS PRIOR TO SEARCH WHICH HAD ALSO ATTAINED FINALITY. IT IS ALSO A FACT THAT NO DOCUMENT OR INCRIMINATING EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD BE LEGALLY MADE A BASIS FOR DISTURBING THE ALREADY SETTLED ISSUES. THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT (SUPRA) ORDAINS AS UNDER: 5 'SEC. 153A CANNOT BE READ IN ISOLATION, IN AS MUCH AS, THE SAME IS TRIGGERED ONLY ON ACCOUNT OF ANYSEARCH/REQ UISITION UNDER S. 132 OR 132A. IF ANY BOOKS OF ACCOUNTS OR OTHER DOCUMENTS RELEVANT TO THE ASSESSMENT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH, SUCH BOOKS OF ACCOUNTS OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO CONSIDERATION WHILE ASSESSING OR REASSESSING THE TOTAL INCOME UNDER THE PROVISIONS OF S. 153A. EVEN IN A CASE WHERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATI ON. THE REQUIREMENT OF ASSESSMENT OR REASSESSMENT UNDER THE SAID SECTION HAS TO BE READ IN THE CONTEXT OF S. 132 OR S. 132A, IN AS MUCH AS IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SUCH SEARCH OR REQUISITION, THEN THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMENTS DOES NOT ARISE, WHICH WOULD REQUIRE MORE REITERATION AND IT IS ONLY IN THE CONTEXT OF THE ABATED ASSESSMENT UNDER SECOND PROVISO WHICH IS REQUIRED TO BE ASSESSED. THE UNDERLYING PURPOSE OF MAKING ASSESSMENT OF TOTAL INCOME UNDER S. 153A IS, THEREFORE, TO ASSESS INCOME WHICH WAS NOT DISCLOSED OR WOULD NOT HAVE BEEN DISCLOSED. THE PURPOSE OF SECOND PROVISO IS ALSO VERY CLEAR, IN AS MUCH AS ONCE AN ASSESSMENT OR REASSESSMENT IS PENDING' ON THE DATE OF INITIATION OF SEARCH OR REQUISIT ION AND IN TERMS OF S. 153A, A RETURN IS FILED AND THE AO IS REQUIRED TO ASSESS THE SAME, THERE CANNOT BE TWO ASSESSMENT ORDERS DETERMINING THE TOTAL INCOME OF THE ASSESSEE FOR THE SAID ASSESSMENT YEAR AND, THEREFORE, THE PROVISO PROVIDES FOR ABATEMENT OF SUCH PENDING ASSESSMENT AND REASSESSMENT PROCEEDINGS AND IT IS ONLY THE ASSESSMENT MADE UNDER S. 153A WOULD BE THE ASSESSMENT FOR THE SAID YEAR. THE NECESSARY COROLLARY OF THE SECOND PROVISO IS THAT THE ASSESSMENT OR REASSESSMENT PROCEEDINGS, WHICH HAVE AL READY BEEN 'COMPLETED' AND ASSESSMENT ORDERS HAVE BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND, SUCH ORDERS ARE SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PEN DING. THE ARGUMENT RAISED BY THE COUNSEL FOR THE ASSESSEE TO THE EFFECT THAT ONCE A NOTICE UNDER S. 153A IS ISSUED, THE ASSESSMENTS FOR SIX YEARS ARE AT LARGE BOTH FOR THE AO AND ASSESSEE HAS NO WARRANT IN LAW. FROM A PLAIN READING OF THE PROVISION ALONG W ITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SS. 132 AND 132A, IT IS APPARENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATED IN TERMS OF SECOND PROVISO TO S. 153A, THE AO A CTS UNDER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; (B) REGARDING OTHER CASES, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND (C) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THOUGH SUCH A CLAIM BY THE ASSESSEE FOR THE FIRST TIME UNDER S. 153A IS NOT CONTEMPLATED, THE CASE IN HAND HAS TO BE CONSIDERED AT BEST SIMILAR TO A CASE WHERE IN SPITE OF A SEARCH AND/OR REQUISITION, NOTHING INCRIMINATING IS FOUND. IN SUCH A CASE THOUGH S . 153A WOULD BE TRIGGERED AND ASSESSMENT OR REASSESSMENT TO ASCERTAIN THE TOTAL INCOME OF THE PERSON IS REQUIRED TO BE DONE, HOWEVER, THE SAME WOULD IN THAT CASE NOT RESULT IN ANY ADDITION AND THE ASSESSMENTS PASSED EARLIER MAY HAVE TO BE REITERATED. THE A RGUMENT OF THE COUNSEL THAT THE AO IS ALSO FREE TO DISTURB INCOME, EXPENDITURE OR DEDUCTION DE HORS THE INCRIMINATING MATERIAL, WHILE MAKING ASSESSMENT UNDER S. 153A IS ALSO NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION WHICH IS ESSENTIALLY IN CONTEX T OF SEARCH AND/OR REQUISITION. THE PROVISIONS OF SS. 153A TO 153C CANNOT BE INTERPRETED TO BE A 6 FURTHER INNINGS FOR THE AO AND/OR ASSESSEE BEYOND PROVISIONS OF SS. 139 (RETURN OF INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (INCOME ESCAPING ASSESSMENT) AND 263 (REVISION OF ORDERS). THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF THE ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD 'ASSESS' HAS BEEN USED IN THE CONTEXT OF ABATED PROCEEDINGS AND 'REASSESS' HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. THE ARGUMENT OF THE COUNSEL FOR THE ASSESSEE IF TAKEN TO THE LOGICAL END WOULD MEAN THAT EVEN IN CASES WHERE THE APPEAL ARISING OUT OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A) OR TRIBUNAL AND THE HIGH COURT, ON A NOTICE ISSUED UNDER S. 153A, THE AO WOULD HAVE POWER TO UNDO WH AT HAS BEEN CONCLUDED BY THE HIGH COURT. ANY INTERPRETATION WHICH LEADS TO SUCH CONCLUSION HAS TO BE REPELLED AND/OR AVOIDED. CONSEQUENTLY, IT IS HELD THAT IT IS NOT OPEN FOR THE ASSESSEE TO SEEK DEDUCTION OR CLAIM EXPENDITURE WHICH HAS NOT BEEN CLAIMED IN THE ORIGINAL ASSESSMENT, WHICH ASSESSMENT ALREADY STANDS COMPLETED, ONLY BECAUSE AN ASSESSMENT UNDER S. 153A IN PURSUANCE OF SEARCH OR REQUISITION IS REQUIRED TO BE MADE SUNCITY ALLOYS (P) LTD. VS. ASSTT. CIT (2009) 124 TTJ (JD) 674 : (2009) 27 DTR (JD)(T RIB) 139 AFFIRMED; CIT VS. SMT SHAILA AGARWAL (2012) 246 CTR (ALL) 266 : (2012) 65 DTR (ALL) 41 : (2012) 346 ITR (ALL) RELIED ON; K.P. VARGHESE VS. ITO (1981) 24 CTR (SC) 358 : (1981) ITR 597 (SC) APPLIED. CONCLUSION : IN AN ASSESSMENT UNDER S. 153A, IT IS NOT OPEN TO THE ASSESSEE TO SEEK DEDUCTION OR CLAIM RELIEF NOT CLAIMED BY IT IN THE ORIGINAL ASSESSMENT WHICH ALREADY STANDS COMPLETED BEFORE THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION.' 2.9 THEREFORE, BY RESPECTFULLY FOLLOWING THE ABOV E JUDGMENT, WE ALLOW GROUND NO. 2, IN ALL THE YEARS, IN FAVOUR OF THE ASSESSEE. THE GIFTS ALREADY DISCLOSED BY THE ASSESSEE IN THE RETURNS OF INCOME, WHICH HAVE ATTAINED FINALITY, CANNOT BE DISTURBED. ACCORDINGLY; CONSEQUENTIAL ADDITIONS ARE DELETED. 10. SO RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER OF THIS BENCH OF THE ITAT IN THE CASE OF SHRI VISHAL DEMBLA VS. DCIT, WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER, WHO TREATED THE AGRI CULTURAL INCOME SHOWN BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME FILED U/S 139(1) OF THE ACT PRIOR TO THE SEARCH CONDUCTED U/S 132 OF THE ACT PARTICULARLY WHEN NEITHER ANY / DOCUMENT OR INCRIMINATING EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH TO SUBSTANTIATE THAT THE ASSESSEE EARNED ANY INCOME FROM OTHER SOURCES. THEREFORE, THE INCOME ALREADY ACCEPTED AS AN 7 AGRICULTURAL INCOME IN THE ORIGINAL RETURN OF INCOME FURNISHED U/S 139(1) OF THE ACT, CANNOT BE DISTURBED IN THE ASSESSMENT FRAMED U/S 153C RE AD WITH SECTION 153A/143(3) OF THE ACT. ACCORDINGLY, THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) IS DELETED. 7 . TH E S E GROUND S OF APPEAL FILED BY THE ASSESSEE ARE ALLOWED. 8 . THAT WITH REGARD TO THE SUSTAINING OF ADDITION OF RS. 2,12,499/ - MADE BY THE AO WHICH IS THE GROUND NO. 3 IN THE GROUNDS OF APPEAL, ON ACCOUNT OF LONG TERM CAPITAL GAIN(LTC G) ON SALE OF PROPERTY, T HE AO HAS DISCUSSED THIS ISSUE IN PARA 7 AT PAGE 3 & 4 OF T HE ASSESSMENT ORDER AND COMPUTED LTCG IN THE HANDS OF THE ASSESSEE AT RS. 3,46,638/ - AS AGAINST SHOWN BY THE ASSESSEE AT RS. 1,34,138/ - AND MADE AN ADDITION OF RS. 2,12,499/ - . 9 . DURING THE COURSE OF APPEAL HEARING THE A/R FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSEE JOINTLY WITH HER SON SHRI MANOJ SINGHVI PURCHASE THE PROPERTY SITUATED AT 33A KAMLA NEHRU NAGAR, JODHPUR FOR A CONSIDERATION OF RS. 11,20,000/ - OF WHICH I.E. RS. 5,60,000/ - WAS PAID BY THE ASSESSEE AND BALANCE WAS PAID BY SHRI MANOJ SINGHVI SON OF THE ASSESEE. THAT ON 06/05/2006 THE PROPERTY SITUATED AT 33A KAMLA NEHRU NAGAR, JODHPUR WAS SOLD FOR A AGREED CONSIDERATION OF RS. 17,00,000/ - OF WHICH I.E. RS. 8,50,000/ - WAS RECEIVED BYTHE ASSESSEE AND BALANCE WAS RECEIVED BY SHRI MANOJ SINGH VI SON OF THE ASSESSEE [PB PG 142 TO 155]. IT WAS FURTHER AGREED BY THE PURCHASER THAT IF THE VALUE OF THE PROPERTY ADOPTED BY THE STAMP VALUATION AUTHORITY IS INCREASED THEN THE SALE CONSIDERATION WILL BE INCREASED ACCORDINGLY. THE VALUE OF THE PROPERTY ADOPTED BY THE REGISTERING AUTHORITY WAS RS. 21,25,995/ - . DIFFERENCE BETWEEN THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY I.E. RS. 21,25,995/ - AND RS. 17,00,000/ - BEING RS. 4,25,995/ - WAS RECEIVED BY SHRI MANOJ SINGHVI BY A/C PAYEE CH. ON THE SAME DA TE [PB PG 156 TO 157]. ALL THE PAYMENT WAS RECEIVED BY ACCOUNT PAYEE CH. AS FOLLOWS: 8 CH. NO. DATE CH. IN FAVOUR OF AMOUTN 765332 06/05/2006 SMT. VIMLA SINGHVI RS. 8,50,000/ - 765333 06/05/2006 SHRI. MANOJ SINGHVI RS. 8,50,000/ - 765334 06/05/2006 SHRI. MANOJ SINGHVI RS. 4,25,995/ - TOTAL RS. 21,25,995/ - THAT TOTAL CONSIDERATION RECEIVED BY THE ASSESSEE ALONG WITH CO OWNER SHRI MANOJ SINGHVI WAS RS. 21,25,995/ - AND THE VALUE ADOPTED BY THE STAM P VALUATION AUTHORITY WAS ALSO R S. 21,25,995/ - . THE PROVISIONS OF SECTION 50C WILL BE APPLICABLE ONLY IF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSETS, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY AN Y AUTHORITY OF A STATE GOVERNMENT (STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER. IN THE CASE UNDER CONSIDERATION THE VALUE ADOPTED OR ASSESSED BY STAMP VALUATION AUTHORITY FOR THE PURPOSE OF PAYMENT OF STA MP DUTY IS EQUAL TO THE TOTAL SALE CONSIDERATION RECEIVED. HENCE PROVISIONS OF SECTION 50C NOT APPLICABLE IN THE PRESENT CASE. THE ASSESSEE SUBMITS THESE DETAILS TO THE A.O. WHICH WAS NOT CONSIDERED BY THE LD. A.O. EVEN IF THE PROVISIONS OF SECTION 50C AP PLICABLE, THE VALUE ADOPTED OR ASSESSED BY STAMP VALUATION AUTHORITY SHALL FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION. SECTION 48 WHICH IS THE COMPUTATION SECTION FOR CAPITAL GAIN REPRODUCED BELOW - THE INCOME CHARG EABLE UNDER THE HEAD CAPITAL GAINS SHALL BE COMPUTED, BY DEDUCTING FROM THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSETS THE FOLLOWING AMOUNT, NAMELY: - (I) EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER, 9 (II) THE COST OF ACQUISITION OF THE ASSET AND THE COST OF ANY IMPROVEMENT THERETO; THAT THE FULL VALUE OF THE CONSIDERATION RECEIVED BY THE ASSESSEE BY ACCOUNT PAYEE CH. WAS RS. 8,50,000/ - WHEREAS THE CONSIDERATION RECEIVED B Y THE ASSESSEES SON BY ACCOUNT PAYEE CH. WAS RS. 12,75,995/ - WHICH WAS ACCEPTED BY THE A.O. IN THE HANDS OF SHRI MANOJ SINGHVI AND TOTAL CONSIDERATION RECEIVED AND DISCLOSED BY BOTH CO - OWNER WAS RS. 21,25,995/ - . THE VALUE DECLARED IN THE INDIVIDUAL RETURN OF THE ASSESSEE AND HER SON AS FOLLOWS: A. SALE CONSIDERATION DECLARED BY THE ASSESSEE RS. 8,50,000/ - B. SALE CONSIDERATION DECLARED BY THE SHRI MANOJ SINGHVI SON OF THE ASSESSEE RS. 12,75,995/ - TOTAL ACCORDING TO SECTION 50C RS. 21,25,995/ - THAT THE A.O. MADE THE ADDITION OF RS. 2,12,499/ - CONSIDERING THE TAXABLE SALE CONSIDERATION ACCORDING TO THE PROVISION OF SECTION 50C IN THE HAND OF THE ASSESSEE BEING OF THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY INSTEAD OF RS. 8,50,000/ - DECLA RED BY THE ASSESSEE IN THE RETURN OF INCOME FILED WITHOUT LOOKING INTO THE RETURN OF INCOME OF SHRI MANOJ SINGHVI CO - OWNER PARTICULARLY WHEN THE ASSESSING OFFICER FOR SHRI MANOJ SINGHVI AND THE ASSESSEE WAS SAME AND THE ASSESSMENT PROCEEDING OF ASSESSEE AS WELL AS OF SHRI MANOJ SINGHVI WAS RUNNING SIMULTANEOUSLY. HA D THE A.O. GONE THROUGH THE SALE CONSIDERATION DECLARED BY SHRI. MANOJ SINGHVI IN HIS RETURN OF INCOME, EITHER HE DIDNT MAKE ADDITION IN THE HAND OF THE ASSESSEE OR HE RECALCULATE THE CAPITAL GA IN IN THE ASSESSMENT OF SHRI MANOJ SINGHVI CONSIDERING ONLY RS. 10,62,500/ - INSTEAD OF RS. 12,75,995/ - AS IN THE ASSESSMENT OF THE ASSESSEE. SINCE THE A.O ACCEPTED THE SALE CONSIDERATION OF RS. 12,75,995/ - IN THE HANDS OF SHRI MANOJ SINGHVI WHO RECEIVED TH E CONSIDERATION THERE WAS NO JUSTIFICATION ON THE PART OF A.O. TO ADOPT VALUATION OVER AND ABOVE THEN TAKEN BY REGISTERING AUTHORITY U/S 10 50C. THAT THE ADDITION OF RS. 2,12,499/ - MADE BY A.O. IN THE HANDS OF ASSESSEE IS ERRONEOUS AND CONTRARY TO THE MATERIA L ON RECORD AS DISCUSSED ABOVE AND REQUESTED TO BE DELETED AS SHRI MANOJ SINGHVI RECEIVED MORE SALE CONSIDERATION THEN THE ASSESSEE. IT WAS FURTHER SUBMITTED BY THE AR THAT THE ASSESSEE AND HER SON SHRI MANOJ SINGHVI JOINTLY PURCHASED THE PROPERTY AND BOT H ARE ASSESSED WITH THE SAME ASSESSING OFFICER. THE PROPERTY WAS SOLD AND REGISTERED UNDER SECTION 50C FOR RS. 31,25,995/ - AND THE SALE CONSIDERATION RECEIVED BY EACH PARTY WAS SHOWN AS UNDER: - SMT. VIMLA SINGHVI 8,50,000/ - SHRI. MANOJ SINGHVI 12,75, 995/ - 21,25,995/ - A. IN THE RETURN FILED BOTH THE PERSONS HAVE SHOWN THE LONG TERM CAPITAL GAIN ON THE AMOUNT RECEIVED RESPECTIVELY IN THEIR ORIGINAL RETURN OF INCOME AS UNDER: - SMT. VIMLA SINGHVI 1,34,138/ - (ON SALE CONSIDERATION OF RS. 8,50,00 0/ - ) SHRI MANOJ SINGHVI 5,34,566/ - (ON SALE CONSIDERATION OF RS. 12,75,995/ - ) 10. THAT ON THIS GROUND WE FIND NO INFIRMITY WITH THE FINDINGS OF LD. CIT(A) AND ACCORDINGLY CONCUR WITH THE SAME WHICH IS AS FOLLOWS: I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSION MADE. THE SUBMISSION FILED BY THE A/R FOR THE APPELLANT IS NOT TENABLE BECAUSE THE ADDITION WAS MADE BY THE AO ON THE BASIS OF SALE CONSIDERATION DETERMINED BY STAMP VALUATION OFFICER. THE REPLY OF THE APPELLANT IS NOT EXPLAIN THE ISSUE PROPERLY. AT ONE STAGE HE STATED THAT THEN IS EQUAL SHARE (1/2) ASSESSEE AND HIS SON AND CONSIDERATION RECEIVED FOR THAT RS. 21,25,000/ - THEN HOW HE DENIED THE DIFFERENCE WHICH WORKED OUT BY THE AO HIS ORDER. IN VI EW OF THE FACTS AND CIRCUMSTANCES OF 11 THE CASE THE ADDITION MADE BY THE AO IS HEREBY SUSTAINED. THE APPELLANT FAILS ON THIS GROUND. 11. THIS GROUND OF APPEAL BY THE ASSESSEE IS REJECTED. 12. GROUND S NO. 4 , 5 AND 6 OF THE APPEAL ARE CONSEQUENTIAL AND GENERAL IN NATURE AND NEEDS NO ADJUDICATION. 13. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT . SD/ - SD/ - (B.P. JAIN) ( PARTHA SARATHI CHAUDHURY ) ACCOUNTANT ME MBER JUDICIAL MEMBER DATED : 22/12/2016 AG COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. T HE CIT 4. THE CIT(A) 5. THE DR