Sh. Tarninder Singh, Chandigarh V. DCIT, CC-1, Chandigarh

ITA 840/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3327 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-07-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 04-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH CIT DR
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Business income
• Section: 50C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BEN CH B, CHANDIGARH .., ! '# #$ %, & '( BEFORE: SHRI. N.K.SAINI, VP & SHRI , SANJAY GARG, JM ITA NO. 840/CHD/2018 ASSESSMENT YEAR : 2013-14 SH. TARMINDER SINGH SCO 139-141, 1 ST FLOOR, SECTOR 17-C CHANDIGARH THE DCIT CENTRAL CIRCLE-1, CHANDIGARH PAN NO: ABZPS6105N APPELLANT RESPONDENT !' ASSESSEE BY : SHRI. HARRY RIKHY, ADVOCATE #!' REVENUE BY : SHRI. MANJIT SINGH, CIT DR $ %! & DATE OF HEARING : 11/07/2019 '()*! & DATE OF PRONOUNCEMENT : 28/08/2019 ')/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 28/03/2018 OF LD. CIT(A)-2, GURGAON. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) -2, GURGAON IS DEFECTIVE BOTH IN LAW AND FACTS OF THE C ASE. 2. THAT NO REASONABLE AND PROPER OPPORTUNITY HAS BEEN GRANTED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -2, GURGAON TO THE APPELLANT TO REPRESENT THE CASE. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) -2, GURGAON IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSES SING OFFICER IN MAKING ADDITION OF RS. 19,70,237/- UNDER THE HEAD 'INCOME FROM LONG TE RM CAPITAL GAINS' U/S 50C OF THE I.T. ACT, 1961 AS THE APPELLANT HAD SHOWN THE A CTUAL SALES CONSIDERATION RECEIVED ON THE BASIS OF AN OLD DEAL WHICH WAS MORE THAN THE COLLECTOR RATE PREVAILING AT THAT TIME WHICH WAS IGNORED BY THE LD . ASSESSING OFFICER, WHO IS NOT A TECHNICAL PERSON. THIS ADDITION BEING MADE MERELY ON SURMISES AND CONJECTURES IS UNCALLED FOR AND DESERVES TO BE DELETED. 4. THAT ANY OTHER GROUND MAY KINDLY BE ALLOWED TO BE T AKEN AT THE TIME OF APPEAL WITH DUE PERMISSION. 3. FROM THE AFORESAID GROUNDS IT WOULD BE CLEAR THA T ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE SUSTENANCE O F ADDITION OF RS. 19,70,237/- MADE BY THE A.O. UNDER SECTION 50C OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 03/05/2014 DECLARING AN INCOME OF RS. 1,05,18,800/- . LATER ON THE CASE WAS SELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESS MENT PROCEEDINGS THE A.O. 2 RAISED THE SPECIFIC QUERY REGARDING SALE / PURCHASE OF MOVABLE OR IMMOVABLE PROPERTY. IN RESPONSE THE ASSESSEE SUBMITTED THAT T HE RESIDENTIAL PLOT NO. 1253-C WAS SOLD. THE A.O. OBSERVED THAT THE INFORMATION AV AILABLE ON THE RECORD REVEALED THAT THE ASSESSEE HAD ENTERED INTO A TRANS ACTION WITH REGARD TO SALE OF PROPERTY FOR RS. 81,08,555/-. HE THEREFORE ASKED TH E ASSESSEE TO EXPLAIN AS TO WHY THE PROVISIONS OF SECTION 50C OF THE ACT SHOULD NOT BE INVOKED WHILE CONSIDERING THE SALE CONSIDERATION INVOLVED IN THE TRANSACTION. IN RESPONSE THE ASSESSEE SUBMITTED THAT HE SOLD HIS 30% SHARE IN HOUSE NO. 1 014, SECTOR 18-C, CHANDIGARH ON 18/03/2013 AND SUFFERED A LONG TERM CAPITAL LOSS (LTCL) OF RS. 1,38,318/-. THE ASSESSEE ALSO FURNISHED THE WRITTEN SUBMISSION WHIC H READ AS UNDER: 'THAT THE ASSESSEE HAS DURING THE YEAR SOLD HIS 330 % SHARE IN HOUSE NO. 1014, SECTOR-18-C, CHANDIGARH (TOTAL 370 SQ.YDS.) ON 18.0 3.2013 HELD AS GENERAL POWER OF ATTORNEY (GPA) FOR NET SALES CONSIDERATION OF RS . 39,00,000/- WHICH IS CALCULATED AS UNDER :- TOTAL SALES CONSIDERATION (AS PER AGREEMENT TO SELL IN MAY 2010) = RS. 60,00, 000/- LESS:- PAID TO CONTRACTOR DIRECTLY BY THE BUYER FOR THE CONSTRUCTION DONE ON THE HOUSE = RS. 21,00,000/- NET SALES CONSIDERATION =RS. 39,00,000/- THE ASSESSEE HAD BOUGHT 50% SHARE IN THE ABOVE SAID PROPERTY FOR A TOTAL SALES CONSIDERATION OF RS. 49,92,600/- ON 28.07.2009 ON G PA BASIS AND DID CONSTRUCTION THEREON. THE LONG TERM CAPITAL LOSS IN CALCULATED AS UNDER:- SALES CONSIDERATION =RS. 39,00,000/- LESS:- INDEXED COST = RS. 40,38,318/- 2995560*852 632 LONG TERM CAPITAL LOSS =RS. 1,38,318/- THE COPIES OF THE GPA, AGREEMENT TO SELL AND SALE D EED ARE SUBMITTED HEREWITH. SINCE, IT WAS A LOSS CASE SO THE ASSESSEE WAS UNDER A BONA FIDE BELIEF OF NOT SHOWING IN HIS ITR. HOWEVER, THE ABOVE SAID TRANSAC TIONS ARE DULY REFLECTED IN THE BOOKS OF ACCOUNTS. HENCE, THERE IS NO LOSS TO REVEN UE. THE COLLECTOR RATE OF 30% SHARE IN THE SAID PROPERT Y FOR STAMP DUTY PURPOSE AS ON THE DATE OF SALE 18-03-2013 IS RS. 81,08,555/- INST EAD OF ACTUAL SALES CONSIDERATION OF RS. 60,00,000/-RECEIVED BY THE ASS ESSEE. THIS IS DUE TO THE FACT THAT THE ASSESSEE HAS ENTERED INTO THE AGREEMENT TO SELL IN THE MONTH OF MAY 2010 FOR A ACTUAL SALES CONSIDERATION OF RS. 60,00, 000/- WHICH IS EVIDENT FROM THE FIRST ADVANCE MONEY CHEQUE NO. 170884 DATED 12-05-2 010 OF RS. 2,85,000/- RECEIVED IN EARLIER YEAR. THE COLLECTOR RATE FOR ST AMP DUTY PURPOSES IN THE MONTH OF MAY 2010 IN THAT AREA WAS RS. 24,960/- PER SQ YD S (COPY ATTACHED) AND ACCORDINGLY THE COLLECTOR RATE OF 30% SHARE IN THE ABOVE SAID PLOT MEASURING 370 SQ YDS WAS RS. 27,70,560/- (370*24960*30%), WHICH M AY BE VERIFIED BY THE DEPARTMENT. HENCE,, THE AMOUNT SETTLED BETWEEN THE PARTIES AS PER THE AGREEMENT TO SELL IN MAY 2010 FOR RS. 60,00,000/-IS MUCH MORE THAN THE COLLECTOR RATE EXISTING AT THAT TIME. THE STAMP DUTY IS ALWAY S PAID BY THE BUYER AND DUE TO THE DELAY ON HIS PART THE COLLECTOR RATES OF THAT A REA WENT UP WHICH IS BEYOND THE CONTROL OF THE ASSESSEE. THE COLLECTOR RATE APP LIED FOR THE STAMP DUTY PURPOSES IS ON HIGHER SIDE AND UNJUSTIFIED. HENCE, THE PROVISIONS OF SECTION 50C OF THE I. T. ACT, 1961 ARE NOT AGREEMENT TO SELL ALREA DY ENTERED IN MAY 2010. ' 5. THE A.O. HOWEVER DID NOT FIND MERIT IN THE ABOVE SUBMISSION OF THE ASSESSEE AND MADE THE ADDITION OF RS. 19,70,237/- B Y OBSERVING IN PARA 3 & 4 OF THE ASSESSMENT ORDER DT. 08/03/2016 AS UNDER: 3 3 THE ABOVE SAID REPLY OF THE ASSESSEE HAS BEEN CON SIDERED AND IS NOT FOUND ACCEPTABLE AS THE PROVISIONS OF SECTION 50C O F THE ACT ARE VERY CLEAR AND UNAMBIGUOUS. VIDE ITS ABOVE SAID SUBMISSIONS, THE A SSESSEE HAS TAKEN NET SALE CONSIDERATION AT RS.39 LACS WHILE DEDUCTING PAYMENT OF RS. 21 LACS [PAID TO CONTRACTOR DIRECTLY BY THE BUYER] FROM THE ACTUAL S ALE CONSIDERATION OF RS.60 LACS. HOWEVER, WHILE GOING THROUGH THE RECORD, IT IS SEEN THAT THE ASSESSEE HAS EXECUTED A SALE DEED ON 18-03-2013 IN RESPECT OF 30 % SHARE OF FREE HOLD HOUSE NO. 1014, SECTOR 18-C, CHANDIGARH MEASURING 370 SQ. YDS. WHEREBY COLLECTOR VALUE OF 30% SHARE HAS BEEN ARRIVED AT RS.81,08,555 /-. THUS, CONSIDERING THE PROVISIONS OF SECTION 50C OF THE ACT, CONTENTION OF THE ASSESSEE WHILE TAKING SALE CONSIDERATION AT RS. 60 LACS IS NOT FOUND CORRECT. THE PROVISIONS OF THE SECTION ARE VERY CLEAR AND UNAMBIGUOUS AND ARE REPRODUCED FOR R EADY REFERENCE AS UNDER : '50C. SPECIAL PROVISION FOR FULL VALUE OF CONSIDERA TION IN CERTAIN CASES (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE 'STAM P VALUATION AUTHORITY') FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL, FOR THE PU RPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RE CEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) ............................................... ............. ' 4 THE ABOVE POSITION OF THE ACT IS VERY MUCH CLEAR ON THIS ISSUE AND FOLLOWING THE PROVISIONS OF THE ACT, THE NET SALE C ONSIDERATION, SHOULD HAVE BEEN CALCULATED WHILE TAKING THE TOTAL SALE CONSIDERATIO N AT RS.81,08,555/- (AS PER ABOVE REFERRED SALE DEED) RATHER TO TAKE THE FIGURE OF RS. 60 LACS (CONSIDERATION MONEY). NO RELIEF ON ACCOUNT OF OLD AGREEMENT (NO C OPY OF WHICH HAS BEEN SUBMITTED) TO SELL CAN BE GIVEN TO THE ASSESSEE AS THERE IS NO SUCH PROVISIONS U/S 50C OF THE ACT. IN VIEW OF THIS, THE ASSESSEE'S LON G TERM CAPITAL GAIN IS CALCULATED AS UNDER: TOTAL SALE CONSIDERATION : 81,08,555/- (AS PER SALE DEED) LESS: PAID TO CONTRACTOR DIRECTLY BY : 21,00,000/ - THE BUYER FOR THE CONSTRUCTION DONE ON THE HOUSE NET SALE CONSIDERATION : 60,08,555/- LESS: INDEXED COST : 40,38,318/- (2995560 X 852/632) LONG TERM CAPITAL GAIN : 19,70,237/- IN VIEW OF THE ABOVE DISCUSSION, RS. 19,70,237/- HA S BEEN ADDED TO THE TOTAL INCOME OF THE ASSESSEE UNDER THE HEAD LONG TERM CA PITAL GAIN. (ADDITION : RS. 19,70,237/-) 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED AS UNDER: THE APPELLANT HAD PURCHASED 50% SHARE IN THE HOUSE NO. 1014, SECTOR 18-C, CHANDIGARH(TOTAL 370 SQ. YDS.) FOR A TOTAL SALES CO NSIDERATION OF RS. 49,92,600/- ON 28.07.2009 ON GPA. THAT DURING THE YEAR UNDER CONSI DERATION THE APPELLANT SOLD 30% SHARE OF 50% SHARE IN HOUSE NO. 1014, SECTOR 1 8-C, CHANDIGARH ON 18.02.2013 FOR NET SALES CONSIDERATION OF RS. 39,00,000/-. THE COPY OF THE SALE DEED IS SUBMITTED HEREWITH IN WHICH THE ABOVE SAID FACT OF PAYMENT OF RS. 21,00,000/- DIRECTLY TO CONTRACTOR I S MENTIONED AT LAST PARA OF PAGE 4 OF THE SALE DEED. HENCE, THE APPELLANT HAS R ECEIVED A SUM OF RS. 39,00,000/- ONLY. EVEN THE LD. ASSESSING OFFICER HA S ALSO GIVEN THE BENEFIT OF RS. 21,00,000/- IN HIS COMPUTATION ON PAGE 4 OF THE ORD ER. 4 SINCE, IT WAS A LOSS CASE SO THE APPELLANT WAS UNDE R A BONA FIDE BELIEF OF NOT SHOWING IN HIS 1TR. HOWEVER, THE LD. ASSESSING OFFICER HAS CALCULATED T HE LONG TERM CAPITAL GAIN OF RS. 19,70,237/- AT PAGE 4 OF THE ORDER BY TAKING TH E TOTAL SALES CONSIDERATION OF RS. 81,08,555/- AS PER COLLECTOR RATE MENTIONED IN THE SALE DEED U/S 50C OF THE I.T. ACT. 1961 INSTEAD OF RS. 60.00.000/- ACTUALLY PAID BY THE BUYERS WHICH IS UNJUSTIFIED. IT WAS SUBMITTED BEFORE THE LD. ASSESSING OFFICER T HAT THE COLLECTOR RAGE OF 30% SHARE IN THE SAID PROPERTY FOR STAMP DUTY PURPOSES AS ON THE DATE OF SALE 18.03.2013 IS RS. 81.08.555/- INSTEAD OF ACTUAL SAL ES CONSIDERATION OF RS. 60,00,000/-. THIS IS DUE TO THE FACT THAT THE APPELLANT HAD ENTE RED INTO THE AGREEMENT TO SELL IN THE MONTH OF MAY, 2010 FOR A TOTAL SALES CONSIDERAT ION OF RS. 60,00,000/- WHICH IS EVIDENT FROM THE FIRST ADVANCE MONEY CHEQUE NO. 170 884 DATED 12.05.2010 OF RS. 2,85.000/- RECEIVED IN EARLIER YEAR. THE COLLECTOR RATE FOR STAMP DUTY PURPOSES IN THE MONTH OF MAY, 2010 IN THE AREA WAS RS. 24,960/- PER SQ. YDS WAS RS. 27,70,560/- , WHICH WAS NOT VERIFIED BY THE DEPARTMENT DESPITE OUR REQUEST. THE APPELLANT HAD DISPUTED THE COLLECTOR RATE BEFORE THE LD. ASSE SSING OFFICER BUT THE ORDER WAS PASSED WITHOUT VERIFYING THE RATE FROM THE DVO AS T HE LD. AO IS NOT A TECHNICAL PERSON. HOWEVER, THE LD. AO IGNORED OUR SUBMISSIONS AND APPLIED THE COLLECTOR RATE WITHOUT ANY STRONG BASIS. THE ORDER PASSED BY THE LD. AO WITHOUT REFERRING THE VALUATION TO DVO IS UNJUSTIFIED AS HELD IN THE FOLLOWING CASE N. MEENAKSHI VS. ACIT(2010) 326 ITR 0229 (CHEN HC) DEVENDRA J. MEHTA VS. ACIT (2016) 48 CCH 0227 (RAJK OT TRIB) ITO VS. MODIPON LTD. (2015) 154 ITD 0369 (DEL TRIB) 7. THE LD.CIT(A) AFTER CONSIDERING THE SUBMISSION O F THE ASSESSEE SUSTAINED THE ADDITION MADE BY THE A.O. BY OBSERVING IN PARA 4 OF THE IMPUGNED ORDER AS UNDER: I HAVE GIVEN CAREFUL CONSIDERATION TO THE FACTS OF THE CASE AND SUBMISSIONS OF THE APPELLANT MADE DURING THE ASSESSMENT PROCEEDINGS. THE CLAIM OF THE APPELLANT IS THAT THE AGREEMENT TO SALE WAS MADE ON MAY. 2010, WHILE THE SALE GOT ACTUALLY REGISTERED ON 18 MARCH, 2013. NO COPY OF THE DOCUMENT OF AGREEMENT TO SALE OR PROOF OF THE ADVAN CE TAKEN BY ACCOUNT PAYEE CHEQUE OR DD ETC. WERE PRODUCED BEFORE THE AS SESSING OFFICER. IT CLEARLY IS AN AFTERTHOUGHT OF THE APPELLANT AND NOT SUBSTANTIA TED BEFORE THE ASSESSING OFFICER WITH ANY DOCUMENTARY EVIDENCES. IN THE LIGHT OF THE ABOVE, I AM OF THE OPINION THAT THE ASSESSING OFFICER HAS CORRECTLY MADE ADDITION OF RS. 19,70,237/- ON THE B ASIS OF THE CIRCLE RATE PREVALENT THEREIN AS LONG TERM CAPITAL GAIN, AS THE PROPERTY WAS ACTUALLY SOLD ON 18.03.2013. THE CASE LAWS REFERRED TO BY THE APPELLANT CANNOT B E TAKEN IN SUPPORT AS THE FACTS ARE DIFFERENT OR THEY ARE NOT APPLICABLE. THE INSERTION OF PROVISO TO SECTION 50C (1) HAS BEE N MADE EFFECTIVE FROM 01.04.2017 AND THEREFORE NOT APPLICABLE TO THE PRES ENT CASE WHICH IS FOR A.Y. 2013-14. THEREFORE, THE APPELLANT CANNOT QUOTE IT I N HIS SUPPORT 8. NOW THE ASSESSEE IS IN APPEAL. 9. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT TH E ASSESSEE FURNISHED THE COPY OF SALE DEED BEFORE THE A.O. AS WELL AS THE LD. CIT (A), COPY OF WHICH IS PLACED AT PAGE NO. 26 TO 42 OF THE ASSESSEES COMPILATION. IT WAS FURTHER SUBMITTED THAT 5 THE ASSESSEE HAD GIVEN THE POSSESSION OF THE PROPER TY TO THE PURCHASER ON 12/05/2010 AND THIS FACT WAS MENTIONED IN THE SALE DEED, A REFERENCE WAS MADE TO PAGE NO. 29 & 30 OF THE ASSESSEES PAPER BO OK WHEREIN IT IS MENTIONED THAT THE ASSESSEE AGREED TO SELL 30% SHARE IN THE H OUSE NO. 1014, SECTOR 18-C, CHANDIGARH ALONGWITH FURNITURES AND FIXTURES FOR A TOTAL CONSIDERATION OF RS. 60,00,000/- AND HAD DELIVERED THE ACTUAL, PHYSICAL AND VACANT POSSESSION OF 30% SHARE OF THE ABOVE SAID HOUSE TO THE VENDEES, A REFERENCE WAS MADE TO PARA 2 AT PAGE NO. 31 OF THE ASSESSEES PAPER BOOK. HE ALSO REFERRED TO PAGE NO. 39 OF THE ASSESSEES PAPER BOOK WHEREIN AT PARA 23 IT WAS MENTIONED AS UNDER: 23. THAT THE PROPERTY WAS PURCHASED VIDE G.P.A NO. 657 VOLUME NO. 298, DATED 28/07/2009 AND WAS SOLD AND HANDED OVER TO THE VEND EES FOR DEMOLITION AND RE- CONSTRUCTION IN MAY, 2010. SINCE REGISTRATION BY ME ANS OF G.P.A WAS BARRED BY U.T. AUTHORITIES THE REGISTRATION HAS BECOME POSSIBLE ON LY AT THIS INSTANCE AFTER IMPLEMENTATION OF SUPREME COURT OF INDIA DIRECTOR .AS SUCH DIFFERENCE IN G.P.A REGISTRATION CHARGES HAVE BEEN DEPOSITED VIDE TREAS URY SCROLL NO. 751, DATED 18.03.2013 ATTACHED HEREWITH AND REGISTRATION CHARG ES ARE CALCULATED ON THE BASIS OF NEW CIRCLE RATES ALTHOUGH THE TRANSACTION AND DEAL HAVE BEEN FINALIZED AND CLOSED ON THE ORIGINALLY AGREED RATE. 10. ON THE BASIS OF AFORESAID NOTING IN THE SALE DE ED IT WAS STATED THAT ALTHOUGH THE PROPERTY WAS SOLD IN MAY 2010 AND SINC E THE REGISTRATION BY MEANS OF G.P.A WAS BARRED BY U.T. AUTHORITIES THE REGISTR ATION BECAME POSSIBLE AFTER IMPLEMENTATION OF DIRECTION OF HON'BLE SUPREME COUR T. THEREFORE THE CIRCLE RATE AT THE TIME OF REGISTRATION ON 18/03/2013 WAS TAKEN INTO CONSIDERATION FOR STAMP DUTY PURPOSES WHILE THE RELEVANT RATE AT THE TIME W HEN THE PROPERTY WAS SOLD WAS RS. 24,960/- PER SQ. YARDS, A REFERENCE WAS MAD E TO PAGE NO. 43 OF THE ASSESSEES PAPER BOOK WHICH IS THE DETAILS OF THE R ATES IN CHANDIGARH. IT WAS CONTENDED THAT THE PROVISIONS OF SECTION 50C OF THE ACT WERE NOT APPLICABLE IN THE ASSESSEES CASE AS THE AGREEMENT TO SELL WAS EX ECUTED BETWEEN THE PARTIES IN MAY 2010 AND PART CONSIDERATION WAS RECEIVED THE REFORE THE TRANSFER OF THE PROPERTY FOR THE PURPOSE OF SECTION 50C OF THE ACT TOOK PLACE IN MAY 2010 WHEN THE CIRCLE RATE WAS RS. 24,960/- AND LATER ON WHEN THE REGISTRATION WAS DONE THE NEW CIRCLE RATE WAS RS. 39,936/- AND THE REGISTRATI ON WAS DONE ON THE BASIS OF COLLECTOR RATE BUT THAT WAS ONLY FOR THE STAMP DUTY PURPOSES. THEREFORE THE ADDITION MADE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS : * CIT VS. SHIMBHU MEHRA (2015) 94CCH 0051 (ALL HC) * SH. SANJEEV LAL ETC. VS. CIT (2014) 269 CTR 0001( SC) * HANSABEN BHAULABHAI PRAJAPATI VS. ITO (2017) 51 C CH 0289 (AHD TRIB) * ASST. CIT VS. UTTRAKHAND CONSTRUCTION PVT. LTD. ( 2015) 45 CCH 0580 (DEL TRIB.) * ASST. CIT VS. BALMER LAWRIE VAN LEER LTD. (2018) 54 CCH 0387 (MUM TRIB) 6 * MANOJ YADAV & ANR. VS. ITO & ANR (2018) 54 CCH 00 72 (INDORE TRIB) * CIT VS. CHANDNI BHUCHAR (2010) 78 CCH 0019 (P&H H C) IT WAS ALSO STATED THAT THE A.O. WITHOUT MAKING ANY REFERENCE TO THE DVO, THE A.O. MADE THE ARBITRARY ADDITION AND THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION MADE BY THE A.O. 11. IN HIS RIVAL SUBMISSIONS THE LD. CIT DR STRONGL Y SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE AS SESSEE DID NOT FURNISH ANY COPY OF THE AGREEMENT IN SUPPORT OF HIS CLAIM THAT HIS SHARE WAS SOLD FOR RS. 60,00,000/- ONLY. IT WAS FURTHER SUBMITTED THAT ACC ORDING TO THE CIRCLE RATE AT THE TIME OF REGISTRATION THE VALUE OF THE ASSESSEES SH ARE COMES AT RS. 81,08,555/- WHICH WAS CONSIDERED BY THE A.O. WHILE WORKING OUT THE LONG TERM CAPITAL GAIN THEREFORE THE LD. CIT(A) WAS FULLY JUSTIFIED IN SUS TAINING THE ADDITION MADE BY THE A.O. 12. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS NOTICED FROM THE CONTENTS MENTIONED IN THE SALE DEED THAT THE COLLEC TORATE VALUE OF 30% OF SHARE OF THE ASSESSEE, WAS RS. 81,08,555/- AT THE TIME OF REGISTRATION WHICH TOOK PLACE ON 15/03/2013, HOWEVER THE CONSIDERATION MONEY RECE IVED BY THE ASSESSEE AS MENTIONED IN THE SALE DEED AT PARA NO. 4 PLACED AT PAGE NO. 29 OF THE ASSESSEES COMPILATION WAS AT RS 60,00,000/-. THE A SSESSEE RECEIVED THE SAID AMOUNT PRIOR TO THE REGISTRATION MADE IN MARCH 2013 , THE REASONS FOR DELAY IN MAKING THE REGISTRATION HAS BEEN MENTIONED AT PARA 23 AT PAGE NO. 14 OF THE SALE DEED PACED AT PAGE NO. 39 OF THE ASSESSEES PA PER BOOK WHEREIN IT IS CLEARLY MENTIONED THAT THE PROPERTY WAS SOLD AND HA NDED OVER TO THE VENDEE FOR DEMOLITION AND RE-CONSTRUCTION IN MAY 2010 AND SINCE THE REGISTRATION BY MEANS OF GPA WAS BARRED BY UT AUTHORITIES THE SALE DEED COULD NOT BE REGISTERED BUT LATER ON AFTER IMPLEMENTATION OF DIR ECTION GIVEN BY THE HON'BLE SUPREME COURT THE REGISTRATION WAS DONE AND STAMP D UTY WAS WORKED OUT ON THE CIRCLE RATE OF THE SAID DATE OF REGISTRATION, W HILE THE ASSESSEE HAD RECEIVED THE AMOUNT IN MAY 2010 ON THE BASIS OF OLD CIRCLE R ATE. THEREFORE THE ADDITION MADE BY THE A.O. ON PRESUMPTION AND SUSTAINED BY TH E LD.CIT(A) WAS NOT JUSTIFIED. IN THE PRESENT CASE IT IS ALSO NOT IN DI SPUTE THAT THE A.O. DID NOT REFER THE MATTER TO THE DVO TO WORKOUT THE DIFFERENCE UNDER S ECTION 50C OF THE ACT. ON A SIMILAR ISSUE THE ITAT, DELHI BENCH H IN THE CASE OF ACIT VS. UTTRAKHAND CONSTRUCTION CO. PVT. LTD. IN ITA NO. 1521/DEL/2012 VIDE ORDER DT. 27/11/2015 FOR THE A.Y 2008-09 REPORTED AT (2015) 45 CCH 0580 (DEL TRIB) HELD AS UNDER: 7 WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN TH E PRESENT CASE, THE ASSESSEE EXECUTED AN AGREEMENT TO SALE WITH SH. PRADEEP KUMAR AND AGREED TO SALE A PIECE OF LAND OWNED BY IT FOR RS. 51,00,000/- AND A LSO RECEIVED THE PART OF SALE CONSIDERATION AMOUNTING TO RS. 35,00,000/-. HOWEVER , THE SALE DEED COULD NOT BE EXECUTED DUE TO THE DEATH OF SH. PRADEEP KUMAR (THE PURCHASER), AFTER HIS DEATH TRANSACTION WAS CONCLUDED BY THE LEGAL HEIRS OF THE DECEASED PURCHASER AND THE BALANCE AMOUNT WAS PAID. IN THE PRESENT CASE, NOTHI NG IS BROUGHT ON RECORD TO SUBSTANTIATE THAT WHEN THE SALE AGREEMENT WAS EXECUTED THE MARKET RATE OF THIS PROPERTY WAS MORE THAN WHAT WAS THE AGREED SALE PRI CE. IN THE PRESENT CASE NO REFERENCE WAS MADE TO THE D.V.O, AS SUCH THE PROVIS IONS OF SECTION 50C OF THE ACT WERE WRONGLY APPLIED BY THE AO. WE, THEREFORE, BY CONSIDERING THE TOTALITY OF THE FACTS, DO NOT SEE ANY VALID GROUND TO INTERFERE WITH THE FINDINGS GIVEN BY THE ID. CIT(A). IN THAT VIEW OF THE MATTER WE DO NOT SE E ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 13. IN THE PRESENT CASE ALSO NO REFERENCE WAS MADE TO THE DVO BY A.O. AND THE ASSESSEE ENTERED INTO AN AGREEMENT TO SELL THE PLOT FOR A SUM OF RS. 60,00,000/- AND RECEIVED RS. 39,00,000/- AS MENTION ED IN THE SALE DEED BEFORE GIVING THE POSSESSION TO THE VENDEES. THE ASSESSEE ALSO EXPLAINED THE REASONS FOR DELAY IN REGISTRATION, AT PARA 23 PAGE 14 OF TH E SALE DEED WHICH WAS DUE TO A BAN BY THE UT AUTHORITIES, AS THE REGISTRATION BY MEANS OF GPA WAS BANNED. WE THEREFORE CONSIDERING THE TOTALITY OF THE FACTS AND BY RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER OF COORDINATE BENCH DELETE THE ADDITION SUSTAINED BY THE LD. CIT(A). 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. (ORDER PRONOUNCED IN THE OPEN COURT ON 28/08/2019 ) SD/- SD/- #$ % .., (SANJAY GARG ) ( N.K. SAI NI) & '(/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 28/08/2019 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE