Sh. Navjiwan Kumar Goyal, Malerkotla V. ACIT, Ludhiana

ITA 867/CHANDI/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5227 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: S K MUKHI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Question of law
• Section: 50C; 68; 37; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.867/CHD/2015 (ASSESSMENT YEAR : 2009-10) SH.NAVJIWAN KUMAR GOYAL, VS. THE A.C.I.T., PROP. M/S RASHIM TYRES, CIRCLE-IV, COLLEGE ROAD, MALERKOTLAL. LUDHIANA. PAN: ABKPG4544Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. MUKHI RESPONDENT BY : SHRI S.K. MITTAL, DR DATE OF HEARING : 19.01.2017 DATE OF PRONOUNCEMENT : 11.04.2017 O R D E R PER ANNAPURNA GUPTA, A.M . : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAIN ST THE ORDER OF CIT(APPEALS)-2, LUDHIANA DATED 2.9.201 5 RELATING TO ASSESSMENT YEAR 2009-10. 2. GROUND NO.1 RAISED BY THE ASSESSEE READS AS UNDER: 1. THAT THE LEARNED COMMISSIONER OR INCOME TAX (APPEALS)-II, LUDHIANA HAS ERRED IN REJECTING THE GROUND NO.3 OF APPEAL OF THE APPELLANT REGARDING THE ADDITION OF RS.300000/- MADE BY THE LD. ASSESSING OFFICER U/S 68 OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF GIFT OF RS.125000/- RECEIVED FROM SH. KRISHAN GOPAL AND GIFT OF RS.175000/- RECEIVED FROM SMT. 2 ANITA GARG, BY TREATING THESE GIFTS AS INGENUINE, WHEREAS CREDITWORTHINESS OF DONORS WERE PROVED BEFORE THE LD. ASSESSING OFFICER AS WELL AS LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, LUDHIANA. THEREFORE, ADDITION OF RS. 300000/- MADE BY THE LD. ASSESSING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, LUDHIANA IS ILLEGAL, UNWARRANTED, UNCALLED FOR AND NEEDS TO BE DELETED. 3. IN THE AFORESAID GROUND THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT (APPEALS) IN U PHOLDING THE ADDITION MADE BY THE ASSESSING OFFICER U/S 68 O F THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON ACCOUN T OF GIFT OF RS.1,25,000/- RECEIVED BY THE ASSESSEE FROM ONE SHR I KRISHAN GOPAL AND RS.1,75,000/- FROM SMT.ANITA GARG . 4. BRIEF FACTS RELEVANT TO THE ISSUE ARE THAT DURI NG ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD RECEIVED RS.1,25,000/- AND RS.1,75,000 /- AS GIFTS FROM SHRI KRISHAN GOPAL AND SMT.ANITA GARG RESPECTIVELY. ON BEING ASKED TO FURNISH THE EVIDEN CE OF THEIR SOURCE AND OCCASION FOR MAKING THE GIFTS, THE ASSES SEE CONTENDED THAT SMT.ANITA GARG WHO WAS THE SISTER-IN -LAW OF THE ASSESSEE HAD GIVEN A DRAFT OF RS.1,75,000/- AS GIFT WHICH WAS MADE FROM HER SAVING BANK ACCOUNT NO.0009201001 4940 WITH OBC, PATIALA. SIMILARLY, SHRI KRISHAN GOPAL, HUSBAND OF SMT.ANITA GARG WAS STATED TO HAVE GIVEN HIM A DR AFT OF RS.1,25,000/- AS GIFT WHICH WAS MADE FROM HIS SAVIN G BANK ACCOUNT NO.00092010014930 WITH THE SAME BANK. COPI ES OF 3 THE DONORS PASSBOOK WERE FURNISHED BY THE ASSESSEE. ON BEING ASKED TO FURNISH SOURCE OF THE GIFTS THE ASSE SSEE FURNISHED COPIES OF BALANCE SHEET, COMPUTATION OF I NCOME AND COPIES OF GIFT DEED. NOT BEING SATISFIED WITH THE SAME THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE DONORS FOR EXAMINATION. THE ASSESSEE SUBMITTED THA T THE DONORS COULD NOT ATTEND OFFICE OF THE ASSESSING OFF ICER FOR EXAMINATION DUE TO THEIR BAD HEALTH AND THAT THEY W ERE UNDER TREATMENT AT PGI, CHANDIGARH. THE ASSESSING OFFICER AFTER EXAMINING THE FACTS GIVEN BY THE ASSESSEE HE LD THAT THE DONORS WERE NOT IN A POSITION TO EARN ANY INCOM E AND IN FACT, HAD TO BEAR ADDITIONAL EXPENSES OF MEDICINE A ND TREATMENT AND THEY DID NOT ATTEND THE OFFICE OF THE ASSESSING OFFICER FOR CROSS EXAMINATION OF THE FACTS. THE AS SESSING OFFICER FURTHER STATED THAT THE ASSESSEE HAD FAILED TO DISCHARGE ITS ONUS U/S 68 OF THE ACT AND THE EXPLAN ATION OFFERED WAS NOT FOUND TO BE SATISFACTORY. THEREFOR E, AN ADDITION OF RS.3 LACS WAS MADE TO THE INCOME OF THE ASSESSEE U/S 68 OF THE ACT. 5. IN APPELLATE PROCEEDINGS BEFORE THE CIT (APPEAL S), THE ASSESSEE MADE DETAILED WRITTEN SUBMISSIONS REPR ODUCED AT PARA 4.2 OF THE CIT (APPEALS)S ORDER. BRIEFLY, STATED THE ASSESSEE CONTENDED THAT ALL NECESSARY DOCUMENTS TO DISCHARGE ITS ONUS U/S 68 OF THE ACT HAD BEEN FILED BY THE ASSESSEE AND IN THE ABSENCE OF ANY DEFECT FOUND IN THE DOCUMENTS THE ADDITION MADE WAS UNWARRANTED THAT T OO MERELY BECAUSE THE DONORS WERE NOT PRODUCED. THE L D. CIT 4 (APPEALS) AFTER CONSIDERING ASSESSEES SUBMISSIONS UPHELD THE ORDER OF THE ASSESSING OFFICER STATING THAT THE ASSESSING OFFICER HAD CLEARLY BROUGHT OUT THE FACT THAT THE D ONORS WERE NOT CREDITWORTHY AND IN BOTH THE CASES JUST BEFORE THE ADVANCEMENT OF THE GIFTS THERE WERE EXISTENCE OF CA SH DEPOSITS WITHIN A WEEK TIME, WHICH THE ASSESSEE COU LD NOT FURNISH DETAILS OF. THUS, THE LD.CIT(A) HELD THAT THE ASSESSEE COULD NOT SUCCESSFULLY PROVE THE GENUINENE SS AND CREDITWORTHINESS OF THE DONORS. THE LD. CIT (APPEA LS) FURTHER HELD THAT WHEN THE ASSESSING OFFICER TRIED TO ENQUIRE INDEPENDENTLY FROM DONORS, THE ASSESSEE DID NOT PRO DUCE THEM BEFORE HIM FOR EXAMINATION. HE, THEREFORE, HE LD THAT THE ASSESSEE HAD FAILED TO ESTABLISH THE GENUINENES S OF THE GIFT AND, THEREFORE, UPHELD THE ORDER OF THE ASSESS ING OFFICER IN MAKING ADDITION ON ACCOUNT OF THE SAME U/S 68 OF THE ACT. THE RELEVANT FINDING OF THE CIT (APPEALS) AT PARA 4 .3 OF THE ORDER IS AS UNDER: 4.3 I HAVE CAREFULLY CONSIDERED THE APPELLANT'S SUB MISSION. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER. IT IS SEEN THAT THE APPELLANT HAS COMPLETELY FAILED TO BRING COGENT E VIDENCE TO PROVE THE, CREDITWORTHINESS OF THE PERSON W.R.T WHOM, IT HAS CLAIMED TO RECEIVE GIFTS DURING THE ASSESSMENT YEAR. O N THE PERUSAL OF THE ASSESSMENT ORDER AS WELL AS THE SUBMISS ION FILED BY THE APPELLANT, IT IS GATHERED THAT THE APPELLA NT HAD RECEIVED GIFTS FROM SH. KRISHAN GOPAL OF RS 1,25,00 0/- AND RS.1,75,000 FROM SMT ANITA GARG. THE ASSESSING OFFICE R HAS BROUGHT OUT THE CREDIT WORTHINESS OF THE PERSON FRO M WHOM THE APPELLANT HAS CLAIMED TO RECEIVED GIFTS DURING THE AS SESSMENT YEAR. THE ID. ASSESSING OFFICER HAS CLEARLY BROUGHT OUT THIS FACT THAT IN BOTH CASES JUST BEFORE THE ADVANCEMENT OF G IFTS, THERE HAVE BEEN INCIDENTS OF CASH DEPOSITS WITHIN A WEEK' S TIME. IN THE CASE OF SH. KRISHAN GOPAL, WHILE HE HAS PURCHASE D A DRAFT OF RS. 1,25,000 ON 09.05.2008, OUT OF HIS SAVING BANK AC COUNT OF ORIENTAL BANK OF COMMERCE, PATIALA, THERE HAS BEE N DEPOSITS OF CASH ON VARIOUS DATES FROM 30 APRIL 2008 TO 09 M AY 2008. SIMILARLY, IN THE CASE OF SMT ANITA GARG, SHE PURCHA SED A DRAFT FOR RS. 1,75,000 ON 09 MAY 2008 FROM OF ORIENTAL BA NK OF COMMERCE, PATIALA, THERE HAS BEEN INCIDENTS OF CASH DEPOSITS 5 OF RS. 1,79,000 ON VARIOUS DATES FROM 29 APRIL 2008 TO 0 9 MAY 2008. WHEN, THE APPELLANT WAS ASKED TO FURNISH THE D ETAILS OF EVIDENCE OF PERTAINING TO THESE CASH DEPOSITS BY TH E AO, THE APPELLANT COULD NOT SUCCESSFULLY PROVE THE GENUINEN ESS AND CREDITWORTHINESS OF THESE DONORS. WHEN THE ASSESSIN G OFFICER TRIED TO ENQUIRE INDEPENDENTLY FROM DONORS AND ASKE D THE APPELLANT TO PRODUCE THEM FOR EXAMINATION, THEN THE APPELLANT DID NOT PRODUCE BOTH OF THE DONORS ON THE PRETEXT O F THEIR GETTING TREATMENT AT THE PGI. THE ASSESSING OFFICER WITH HIS DETAILED OBSERVATION HAS MADE OUT W.R.T CREDIT WORTHINESS OF THESE DONORS HA VE BEEN DISCUSSED. BY MERELY FILING THE CONFIRMATION AND CO PIES OF YOUR BANK ACCOUNT, IT DOES NOT COMPLETE THE DUTY OF THE APPELLANT TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF GIFTS AD VANCED TO THE APPELLANT. THE APPELLANT HAS FAILED MISERABLY TO P ROVE CREDITWORTHINESS OF THE DONORS EVEN AFTER GIVING SO MANY OPPORTUNITIES BY THE AO. ACCORDINGLY, IN MY CONSIDE RED OPINION, THE APPELLANT HAS FAILED TO ESTABLISH SUCCESSFULLY THE T HREE LIMBS OF GENUINENESS OF GIFT THAT IS IDENTITY, GENUINENES S AND CREDITWORTHINESS. IN VIEW OF THE FACTS AS DISCUSSED ABOVE I AM OF THE CONSIDERED OPINION THAT THE AO HAS RIGHTLY AD DED BACK GIFTS RECEIVED BY THE APPELLANT TREATING AS NONGENU INE GIFTS. ACCORDINGLY THIS GROUND OF APPEAL IS DISMISSED. 6. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AU THORITIES AND STATED THAT IT HAD PROVED THE GENUINENESS OF TH E GIFTS BY VIRTUE OF THE FOLLOWING DOCUMENTS ALSO PLACED IN TH E PAPER BOOK FILED BEFORE US: I) COPIES OF BALANCE SHEET, GIFT DEEDS, BANK STATEMENTS OF THE DONORS: A) SMT.ANITA GARG PAPER BOOK PAGES 1 TO 20 B) SHRI KRISHAN GOPAL PAPER BOOK PAGES 21 TO 29 7. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HAVING DISCHARGED ITS ONUS, THE ADDITION COULD NOT HAVE BEEN MADE MERELY BECAUSE THE DONORS HAD NOT BEEN PRODUCE D FOR CROSS EXAMINATION. THE LD. COUNSEL FOR THE ASSESSE E RELIED 6 UPON THE FOLLOWING CASE LAWS IN SUPPORT OF HIS ABOV E CONTENTION: I) JAWAHAR LAL VS. ITO (2014) ITR (TRIB.) 71(CHD) II) CIT & ORS. VS. JAWAHAR LAL OSWAL & ORS. ITA NO.49 OF 1999 (P&H) 8. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE CIT (APPEALS) AND THE ASSESSING OFFIC ER. 9. WE HAVE HEARD THE CONTENTIONS OF BOTH THE PARTI ES, GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D PERUSED THE DOCUMENTS PLACED BEFORE US. 10. THE ISSUE IN THE PRESENT CASE PERTAINS TO DISALLOWANCE MADE U/S 68 OF THE ACT ON ACCOUNT OF G IFTS RECEIVED FROM TWO PERSONS SMT.ANITA GARG OF RS.1,75 ,000/- AND SHRI KRISHAN GOPAL OF RS.1,25,000/-. THE ADDIT ION, WE FIND, HAS BEEN MADE FOR THE REASON THAT THE CREDITW ORTHINESS OF THE DONORS WAS NOT PROVED. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE BANK STATEMENTS OF THE DONORS HAD REFLECTED THE AMOUNT OF GIFT MADE BY VIR TUE OF BANK DRAFTS MADE FROM THE AFORESAID BANK ACCOUNT TH US PROVING THE CREDITWORTHINESS OF THE DONORS. THE LD . DR, ON THE OTHER HAND, RELIED UPON THE FINDINGS OF THE ASS ESSING OFFICER AND THE CIT (APPEALS) IN THIS REGARD THAT I MMEDIATE CASH DEPOSIT BEFORE MAKING THE GIFT, AND EVIDENCE O F SOURCE OF THE CASH DEPOSIT COULD NOT BE SUCCESSFULLY ESTAB LISHED BY THE ASSESSEE CLEARLY RESULTED IN THE GENUINENESS OF THE GIFT NOT BEING ESTABLISHED. 7 11. WE FIND MERIT IN THE CONTENTIONS OF THE LD. DR . THE ASSESSING OFFICER, WE FIND, HAS GIVEN A CLEAR F INDING OF FACT THAT THE DONORS HAD NO CAPACITY TO MAKE THE IM PUGNED GIFTS. AT PARA 2.1 OF THE ORDER OF THE ASSESSING O FFICER THE SAME HAS BEEN OUTLINED AS FOLLOWS: 2.1 IN REPLY, PHOTO COPIES OF BANK PASS BOOKS OF SH.KRISHAN GOPAL AND SMT.ANITA GARG HAVE BEEN FURNISHED. AS PER THESE, SH.KRISHAN GOPAL HAS PURCHASED A DRAFT OF RS.1,25,000/- ON 09.05.2008 OUT OF HIS SAVING BANK A/C NO.00092010014930 WITH ORIENTAL BANK OF COMMERCE, PATIALA. THIS DRAFT IS STATED TO BE GIVEN TO THE ASSESSEE AS GIFT . BEFORE MAKING THIS DRAFT, TOTAL AMOUNT OF RS.1,36,000/- WAS DEPOSITED IN CASH ON VARIOUS DATES FROM 30.04.2008 TO 09.05.2008. SIMILARLY OUT OF HER SAVING BANK A/C NO. 00092010014940 WITH THE SAME BANK, SMT.ANITA GARG PURCHASED A DRAFT OF RS.1,75,000/- ON 09.05.2008. THIS WAS GIVEN TO THE ASSESSEE AS GIFT. THIS TRANSACTION WA S ALSO PRECEDED BY CASH DEPOSITS OF RS.1,79,000/- ON VARIOUS DATES FROM 29.04.2008 TO 09.05.2008. THE ASSESSEE WAS ASKED TO FURNISH THE EVIDENCE OF SOURCES OF THESE CASH DEPOSIT. IN RESPONSE CONFIRMATION FROM DONOR, COPIES OF THEIR COMPUTATION OF INCOME FOR THE A.Y. 2008-09, COPIES OF BALANCE SHEET AND CAPITAL A/C FOR THE A.Y. 2008- 09 AND COPIES OF GIFT DEEDS WERE FURNISHED. AS PER THESE SMT.ANITA GARG HAD TOTAL CAPITAL OF RS.6,74,872/- WHICH INCLUDED CASH OF RS.43,304/- AND LOANS AND ADVANCES OF RS.2,96,500/-. HER TOTAL INCOME FOR THE YEAR IS RS.1,37,866/-. THE TOTAL CAPITAL OF SH.KRISHAN GOPAL AS ON 31.03.2008 WAS RS.3,81,117/- WHICH INCLUDED CASH OF RS.67,300/- AND LOANS AND ADVANCES OF RS.1,98,500/-. HIS TOTAL INCOME FOR THE YEAR IS RS.1,08,238/-. IT WAS 8 STATED DURING DISCUSSION THAT THE SOURCE OF AMOUNTS DEPOSITED IN THE BANK BY THESE PERSONS IS THE ABOVE CASH IN HAND AND REALIZATION OF ADVANCES. AS THESE WERE NOT SUFFICIENT TO ESTABLISH THE SOURCES OF CASH DEPOSIT, THE ASSESSEE WERE ASKED, VIDE ORDER SHEET ENTRY DATED 29.11.2011, TO PRODUCE THE DONORS FOR EXAMINATION ON OATH. DURING PROCEEDINGS ON 09.12.2011 IT WAS STATED BY THE ASSESSEE THAT THE DONORS CANNOT COME AS THEIR MEDICAL CONDITION DOES NOT WARRANT TRAVELLING AND EXERTION. THEY ARE UNDERGOING TREATMENT AT PGI, CHANDIGARH. 12. IT IS EVIDENT FROM THE ABOVE THAT SMT.ANITA GA RG WHO HAD GIVEN A GIFT OF RS.1,75,000/- HAD A TOTAL C APITAL OF RS.6,74,872/- WHICH INCLUDED CASH OF RS.43,304/- AN D LOANS AND ADVANCES OF RS.2,96,500/-. HER TOTAL INCOME FO R THE YEAR WAS RS.1,37,866/- AS REFLECTED IN HER BALANCE SHEET. SIMILARLY, SHRI KRISHAN GOPAL THE OTHER DONOR HAD A TOTAL CAPITAL OF RS.3,81,117/- WHICH INCLUDED CASH OF RS. 67,300/- AND LOANS AND ADVANCES OF RS.1,98,500 AND HIS TOTAL INCOME WAS RS.1,08,238/- FOR THE IMPUGNED YEAR. DURING DISCUSSION THE ASSESSEE HAD STATED THAT THE SOURCE OF CASH DEPOSITED IN THE BANK BY THESE PERSONS FOR THE PURP OSE OF MAKING GIFTS WAS THEIR CASH IN HAND AND REALIZATION OF ADVANCES BUT CLEARLY THE SAME ARE NOT SUFFICIENT EN OUGH AND IT IS NOT PROBABLE THEIR ENTIRE ADVANCES AND CASH W ERE DEPOSITED FOR MAKING GIFT TO A PERSON WHO WAS OF MU CH HIGHER MEANS THAN THE DONORS AND THAT TOO FOR NO RH YME REASON OR FOR ANY OCCASION. CLEARLY, THEREFORE, TH E CREDITWORTHINESS OF THE DONORS HAS NOT BEEN ESTABLI SHED IN 9 THE PRESENT CASE. AS POINTED OUT BY THE ASSESSING OFFICER IN PARA 2.2 OF HIS ORDER THAT IF THESE PERSONS HAD GIF TED THE AMOUNTS AS MENTIONED, IT WOULD MEAN THAT THEY HAD G IFTED THEIR ENTIRE LIQUID RESOURCES TO THE ASSESSEE AND K EEPING IN VIEW THE FACT THAT THESE DONORS WERE MEDICALLY UNFI T, UNDERGOING TREATMENT AT PGI IN WHICH THEY HAD TO IN CUR EXPENSES ALSO AND WERE UNABLE TO EARN ANY INCOME IN SUCH CONDITION, IT SEEMED HIGHLY IMPROBABLE THAT THEY WO ULD GIFT THEIR ENTIRE LIQUID RESOURCES TO THE ASSESSEE. AS R IGHTLY POINTED OUT BY THE ASSESSING OFFICER , THERE WAS NO OCCASION FOR MAKING THESE GIFTS ALSO. FURTHER WHEN THE ASSE SSEE WAS ASKED TO PRODUCE DONORS FOR CROSS EXAMINATION, THE ASSESSEE DID NOT DO SO STATING THAT THEY WERE UNDERGOING TRE ATMENT AT PGI AND THEIR MEDICAL CONDITION DID NOT WARRANT TRA VELLING AND EXERTION IN THESE CIRCUMSTANCES, WE HOLD THAT THE CIT (APPEALS) HAS RIGHTLY UPHELD THE ORDER OF THE ASSES SING OFFICER HOLDING THAT THE GENUINENESS AND CREDITWORT HINESS OF THE DONORS HAD NOT BEEN ESTABLISHED. 13. THE RELIANCE PLACED BY THE ASSESSEE ON VARIOUS JUDICIAL DECISIONS ARE DISTINGUISHABLE ON FACTS. I N THE CASE OF JAWAHAR LAL (SUPRA) RELIED UPON BY THE LD.COUNSE L FOR THE ASSESSEE, THE FACTS WERE THAT THE ASSESSEE HAD EXPL AINED THE SOURCE OF THE PERSONS WHO HAD GIVEN LOANS AS BEING FROM PROFIT FROM TRADING AND COMMODITY BUSINESS WHICH W AS DOUBTED UPON BY THE ASSESSING OFFICER. IN SUCH CIRCUMSTANCES IT WAS HELD BY THE ITAT THAT ADDITION SHOULD HAVE BEEN MADE IN THE HANDS OF THE DONOR AND NOT TH E 10 ASSESSEE SINCE VIS A VIS THE LOAN TRANSACTION THE D ONORS HAD CONFIRMED THE SAME AND FILED ALL RELEVANT DOCUMENTS . IN THE PRESENT CASE THE FACTS ARE DIFFERENT AS IN THE ASSE SSING OFFICER HAS CATEGORICALLY POINTED OUT THE ABSENCE O F CREDITWORTHINESS OF THE DONORS AND IT IS NOT MERE S USPICION OF THE ASSESSING OFFICER. IN THE CASE OF JAWAHAR L AL OSWAL (SUPRA), RELIED UPON BY THE LD.COUNSEL FOR THE ASSE SSEE, THE HONBLE HIGH COURT DELETED THE ADDITION MADE ON ACC OUNT OF GIFTS RECEIVED BY HOLDING THAT ONCE ONUS IS DISCHAR GED BY THE ASSESSEE OF PROVING THE GENUINENESS OF THE TRANSACT ION, THE ONUS SHIFTS TO THE ASSESSING OFFICER WHO SHOULD COM E UP WITH CREDIBLE EVIDENCE TO DISBELIEVE THE EXPLANATIO N OF THE ASSESSEE, CONFRONT THE SAME TO THE ASSESSEE AND IN CASE THE ASSESSEE FAILS TO PROFFER CREDIBLE EXPLANATION ONLY THEN ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. IN THE PRESENT CASE WE FIND THAT THE DOCUMENTS PRODUCED B Y THE ASSESSEE TO PROVE THE CREDITWORTHINESS OF THE DONOR S ITSELF SHOWED THAT THEY DID NOT HAVE CAPACITY TO MAKE THE GIFTS, THEIR RESPECTIVE CAPITAL AND INCOME EARNED DURING T HE YEAR, AS REFLECTED IN THEIR BALANCE SHEET SHOWING INSUFFI CIENT FUNDS. EVEN THE EXPLANATION OF THE ASSESSEE THAT TH EY HAD LIQUIDATED THEIR ENTIRE ADVANCES GIVEN TO OTHERS TO MAKE THE IMPUGNED GIFTS DOES NOT APPEAR TO BE CREDIBLE CONSI DERING THAT NO PRUDENT PERSON WOULD LIQUIDATE HIS ENTIRE A SSETS TO GIFT IT TO SOMEBODY WHEN THERE WAS NO OCCASION TO D O SO EITHER AND ALSO CONSIDERING THE FACT THAT THE DONOR S WERE ILL AND REQUIRED TREATMENT IN HOSPITALS AND ON MEDICATI ON. THUS EVEN AS PER THE DECISION RELIED UPON BY THE LD.COUN SEL IN 11 THE CASE OF JAWAHAR LAL OSWAL, THE ADDITION MADE IS WARRANTED SINCE AFTER THE ASSESSEE DISCHARGED ITS O NUS OF PROVING THE GENUINENESS OF THE TRANSACTION BY FILIN G RELEVANT DOCUMENTS, THE ASSESSING OFFICER POINTED OUT FROM T HE VERY SAME DOCUMENTS THAT THE CREDITWORTHINESS OF THE DON ORS WAS NOT ESTABLISHED, WHICH WE FIND THE ASSESSEE HAS NOT BEEN ABLE TO DISPLACE SINCE NO CREDIBLE EXPLANATION WAS OFFERED NOR WERE THE DONORS PRODUCED FOR CROSS EXAMINATION WHEN ASKED BY THE ASSESSING OFFICER TO DO SO. 14. IN VIEW OF THE ABOVE, THE ADDITION MADE OF THE GIFTS U/S 68 OF THE ACT AMOUNTING TO RS.3,00,000/- IS THE REFORE UPHELD. GROUND NO.1 RAISED BY THE ASSESSEE IS, THE REFORE, DISMISSED. 15. GROUND NO.2 RAISED BY THE ASSESSEE READS AS UNDER: 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, LUDHIANA HAS ERRED IN REJECTING THE GROUND NO.4 OF APPEAL OF THE APPELLANT REGARDING THE ADDITION OF RS. 28840/- ON LONG TERM CAPITAL GAIN BY APPLYING THE SECTION 50C OF THE INCOME TAX ACT, 1961 WITHOUT APPLYING HER MIND AND WITHOUT CONSIDERING THE REPLY FILED BY THE APPELLANT, WHEREAS SECTION 50C IS NOT APPLICABLE IN THIS CASE. THEREFORE, ADDITION OF RS. 28840/- MADE BY THE LD, ASSESSING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, LUDHIANA IS ILLEGAL, UNWARRANTED, UNCALLED FOR AND NEEDS TO BE DELETED. 12 16. THE SAID GROUND IS AGAINST THE ACTION OF THE C IT (APPEALS) IN UPHOLDING THE ADDITION OF RS.28,840/- ON ACCOUNT OF LONG TERM CAPITAL GAIN BY APPLYING SECTI ON 50C OF THE ACT. 17. THE FACTS RELEVANT TO THE CASE ARE THAT DURING THE IMPUGNED ASSESSMENT YEAR THE ASSESSEE HAD SOLD A PL OT AT RAILWAY ROAD MALERKOTLA FOR RS.7,20,000/- AND HAD S HOWN LONG TERM CAPITAL GAIN OF RS.5,71,349/-. ON BEING ASKED TO EXPLAIN AS TO WHY THE DIFFERENCE BETWEEN THE STAMP DUTY VALUE AND SALE CONSIDERATION NOT BE BROUGHT TO TAX AS PER SECTION 50C OF THE ACT, THE ASSESSEE SUBMITTED THAT THE LONG TERM CAPITAL GAIN HAD BEEN REFLECTED IN THE IMPUGNE D YEAR ON THE BASIS OF AGREEMENT FOR SALE ENTERED INTO DURING THE IMPUGNED YEAR IN PURSUANCE OF WHICH THE ENTIRE AMOU NT HAD BEEN RECEIVED BY THE ASSESSEE AND POSSESSION HANDED OVER TO THE BUYER OF THE SAID LAND. THE ASSESSEE FURTHER C ONTENDED THAT DURING THE FINANCIAL YEAR 2008-09 THE STAMP DU TY RATES WERE MUCH LOWER THAN AT THE TIME OF ACTUAL REGISTRA TION AND CONSIDERING THE SAME NO ADDITION U/S 50C OF THE ACT WAS WARRANTED. THE ASSESSING OFFICER ACCEPTED THE CONT ENTION OF THE ASSESSEE THAT THE STAMP DUTY RATES FROM THE IMP UGNED ASSESSMENT YEAR WERE TO BE TAKEN INTO CONSIDERATION BUT FURTHER NOTED THAT EVEN ON PERUSING OF THE STAMP DU TY RATE OF THE IMPUGNED YEAR WITH THE SALE CONSIDERATION RE CEIVED BY THE ASSESSEE AN ADDITION OF RS.26,840/- WAS WARRANT ED. THE REASONING OF THE ASSESSING OFFICER WAS THAT THE CONSIDERATION RECEIVED BY THE ASSESSEE INCLUDED THE AMOUNT 13 RECEIVED FOR BOUNDARY WALL AND SOME CONSTRUCTION ON THE LAND. AS PER THE RECORDS OF THE ASSESSEE THE ASSES SING OFFICER FOUND THAT THE VALUE OF THE BOUNDARY WALL A ND CONSTRUCTION WAS RS.46,400. EXCLUDING THE SAME FROM THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE THE ASS ESSING OFFICER CALCULATED THE SALE CONSIDERATION RECEIVED FOR THE LAND AT RS.6,73,600 (RS.7,20,000 RS.46,400). TH EREAFTER THE ASSESSING OFFICER APPLIED THE RATE APPROVED BY THE REVENUE AUTHORITIES IN THE IMPUGNED YEAR AT RS.2600 PER SQ.YD. AND ARRIVED AT THE VALUE OF THE LAND COMPRIS ING OF 269.4 SQ.YD. AT RS.7,00,440/-. THUS THE ASSESSING OFFICER CONCLUDED THAT THE AMOUNT SHOWN AS PER SALE CONSID ERATION BY THE ASSESSEE FOR THE IMPUGNED LAND AT RS.6,73,60 0/- FELL SHORT OF THE REVENUE APPROVED VALUE AT RS.7,00,440/ - BY RS.26,840/- AND MADE ADDITION OF THE SAME U/S 50C O F THE ACT. THE LD. CIT (APPEALS) UPHELD THE ADDITION MAD E. 18. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT SECTION 50C WAS NOT APPLICABLE IN TH E SAID CASE AT ALL SINCE FOR THE PURPOSE OF SECTION 50C TH E STAMP DUTY VALUE ASSESSED FOR THE PURPOSE OF PAYMENT OF S TAMP DUTY IS DEEMED TO BE THE FULL VALUE OF CONSIDERATIO N RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSACTION. IN TH E PRESENT CASE SINCE THE CAPITAL GAIN HAS BEEN COMPUTED ON TH E BASIS OF AGREEMENT TO SELL NO STAMP DUTY VALUE WAS ASSESS ED FOR THE IMPUGNED LAND. LD COUNSEL FOR THE ASSESSEE RELI ED UPON THE DECISION OF NAVNEET KUMAR THAKKAR VS. INCOME TA X OFFICER(ITA NO.679/JU/2006) IN THIS REGARD. 14 19. THE LD. DR ON THE OTHER HAND,, RELIED UPON THE ORDER OF THE CIT (APPEALS). 20. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT DISPUTED THAT THE ASSESSEE HAD DECLARED LONG TE RM CAPITAL GAIN OF RS.5,71,349/- IN THE RETURN OF INCO ME. IT IS ALSO NOT DISPUTED THAT THE CAPITAL GAIN IN THE SAID CASE HAD BEEN COMPUTED ON THE BASIS OF TRANSFER OF PLOT BY V IRTUE OF AN AGREEMENT TO SELL ENTERED ON 15.4.2008. THE ADD ITION IN THE IMPUGNED CASE WE FIND HAS BEEN MADE BY APPLYING PROVISIONS OF SECTION 50C OF THE ACT. THE ASSESSME NT YEAR UNDER APPEAL IS 2009-10 AND THE RELEVANT PROVISIONS OF SECTION 50C APPLICABLE TO THE SAID ASSESSMENT YEAR ARE REPRODUCED AS UNDER: 50C (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL AS SET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPT ED OR ASSESSED BY ANY AUTHORITY OF A STATE GOVERNMENT (HER EAFTER IN THIS SECTION REFERRED TO AS THE 'STAMP VALUATION AU THORITY') FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED SHALL, FOR T HE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TR ANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTIO N (1), WHERE (A ) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARK ET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; (B ) THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP VALU ATION AUTHORITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEF ORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, THE ASSESSING OFFICER MAY REFER THE VALUATION OF TH E CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFE RENCE IS MADE, THE PROVISIONS OF SUB-SECTIONS (2), (3), (4), (5) AND (6) OF SECTION 16A, CLAUSE (I) OF SUB-SECTION (1) AND SUB-SECT IONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, S ECTION 15 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX AC T, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODIFICATIONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SE CTION (1) OF SECTION 16A OF THAT ACT. 3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECTIO N (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS TH E VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB-SECTION (1), THE VALUE SO ADOPTED O R ASSESSED BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VA LUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER. 21. AS PER THE SAID SECTION THE CONSIDERATION RECE IVED OR ACCRUING AS A RESULT OF TRANSFER OF A CAPITAL AS SET BEING LAND OR BUILDING IS SUBSTITUTED BY THE VALUE OF AD OPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFE R IF THE SAID VALUE EXCEEDS THE SALE CONSIDERATION RECEIVED OR ACCRUING. IN THE PRESENT CASE SINCE THE TRANSFER TOOK PLACE UNDER AN AGREEMENT TO SELL WHICH IS NOT REGISTERED, THERE WAS NO QUESTION OF ITS VALUE BEING ASSESSED BY THE STAM P VALUATION AUTHORITY AND, THEREFORE, THE PROVISIONS OF SECTION 50C OF THE ACT IN THE PRESENT CASE, WE HOLD, DOES N OT COME INTO PLAY AT ALL. THE I.T.A.T. JODHPUR BENCH IN TH E CASE OF NAVNEET KUMAR THAKKAR VS. ITO (2008) 110 ITD 525 HA S HELD THAT SECTION 50C DOES NOT APPLY TO THE CASES W HERE THE TRANSFER OF PROPERTY IS NOT SUBJECT MATTER OF THE R EGISTRATION AND QUESTION OF VALUATION FOR STAMP DUTY PURPOSES I S NOT ARISING. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. R. SUGANTHA REVINDRAN (2013) 352 ITR 488 HAS AL SO HELD THAT THE SCOPE OF SECTION 50C AS PREVAILING PRIOR T O THE AMENDMENT MADE W.E.F. 1.10.2009 DID NOT INCLUDE THE TRANSACTIONS WHICH WERE NOT REGISTERED WITH THE STA MP 16 VALUATION AUTHORITY AND EXECUTED THROUGH AGREEMENT TO SELL OR POWER OF ATTORNEY. THE HON'BLE HIGH COURT HELD HAS UNDER: 6. THE ISSUE INVOLVED IN THIS CASE IS AS TO WHETHER THE ASSESSING OFFICER IS ENTITLED TO TAKE THE VALUE OF THE PROPERT Y ASSESSABLE BY THE AUTHORITY OF THE STATE GOVERNMENT FOR THE PU RPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SAID TRANSFER OR NOT. ADMITTEDLY, IN THIS CASE, NO REGISTRATION OF S ALE DEED HAD TAKEN PLACE. LT IS THE CASE OF THE REVENUE THAT ON LY IN PURSUANCE OF THE AGREEMENT OF SALE, THE ASSESSEE HA D TRANSFERRED THE PROPERTY AND RECEIVED THE SALE CON SIDERATION. IN SUCH CIRCUMSTANCES, WHETHER SECTION 50C OF THE ACT W OULD BE MADE APPLICABLE EVEN IN RESPECT OF CASES WHERE THE REGISTRATION HAD NOT TAKEN PLACE, IS THE ONLY ISSUE TO BE DECIDE D IN THIS CASE. 7. LEARNED COUNSEL FOR THE ASSESSEE PLACED A CIRCULAR IN CIRCULAR NO.5/2010/(F.NO.142/13/2010- SO(TPL)) DATED 03.06.20 10 ISSUED BY THE BOARD AND SUBMITTED THAT AS PER THE CIR CULAR, IT IS MADE CLEAR THAT THE AMENDMENT MADE BY THE FINANCE (N O.2) ACT,2009 IS ONLY PROSPECTIVE IN NATURE AND CANNOT BE APPLIED RETROSPECTIVELY. 8. WE HAVE PERUSED THE ABOVE CIRCULAR. IT IS STATED THE REIN THAT THE SCOPE OF THE PROVISIONS DOES NOT INCLUDE TRANSACTION WHICH ARE NOT REGISTERED WITH STAMP DUTY VALUATION AUTHORITY AN D EXECUTED THROUGH AGREEMENT TO SELL OR POWER OF ATTO RNEY. CONSEQUENTLY, IT IS MADE CLEAR THEREIN THAT THE AMEND MENTS HAVE BEEN MADE APPLICABLE WITH EFFECT FROM 01.10.20 09 AND THEREFORE, THEY WILL APPLY ONLY IN RELATION TO TRANSA CTION UNDERTAKEN ON OR AFTER SUCH DATE. THE RELEVANT PORT ION OF THE CIRCULAR IS EXTRACTED HEREUNDER: '23.4. APPLICABILITY:- THESE AMENDMENTS HAVE BEEN MADE APPLICABLE WITH EFFECT FROM 1ST OCTOBER, 2009 AND WILL ACCORDINGLY, APPLY IN RELATION TO TRANSACTIONS UNDERTAKEN ON OR AFTER SUCH DATE.' 17 9. LEARNED COUNSEL FOR THE REVENUE IS NOT DISPUTIN G ABOUT THE EXISTENCE OF SUCH CIRCULAR ISSUED BY THE BOARD. IF T HE BOARD HAS ISSUED A CIRCULAR CLARIFYING THE APPLICABILITY OF SECTION 50C IN PURSUANCE OF THE AMENDMENT MADE BY AMENDMENT ACT 2 OF 2009, WE FAIL TO UNDERSTAND AS TO HOW THE REVENUE CAN CANVASS THE SAME ISSUE IN THIS CASE WHICH IN EFF ECT IS AGAINST THE CIRCULAR ISSUED BY THE BOARD. CERTAINLY, T HE REVENUE IS BOUND BY THE CIRCULAR ISSUED BY THE BOARD. AT THIS JUNCTURE, IT IS PERTINENT TO NOTE THAT IN A DECISIO N MADE IN THE CASE OF STATE OF TAMIL NADU AND ANOTHER VS. INDIA CEMENTS LTD. AND ANOTHER REPORTED IN (2011) 40 VST 225 (SC), THE HONOURABLE SUPREME COURT HAS HELD THAT THE CIRCU LARS ISSUED BY THE REVENUE ARE BINDING ON THE DEPARTMENT AN D THEREFORE, THEY CANNOT REPUDIATE THAT THEY ARE INCO NSISTENT WITH THE STATUTORY PROVISIONS. RELEVANT PARAGRAPHS 21 AND 22 ARE EXTRACTED HEREUNDER: '21. IT IS MANIFEST FROM THE HIGHLIGHTED PORTION OF THE CIRCULAR THAT AS PER THE CLARIFICATION ISSUED BY THE COMMISSIONER OF COMMERCIAL TAXES, IN EXERCISE OF TH E POWER CONFERRED ON HIM UNDER SECTION 28A OF THE TNGS T ACT, THE BENEFIT OF THE SALES TAX DEFERRAL SCHEME W OULD BE AVAILABLE TO A DEALER FROM THE DATE OF REACHING OF B PV OR BSV, WHICHEVER IS EARLIER, AS IS PLEADED ON BEHALF OF THE FIRST RESPONDENT. IT IS TRITE LAW THAT CIRCULARS ISS UED BY THE REVENUE ARE BINDING ON THE DEPARTMENTAL AUTHORITIES AND THEY CANNOT BE PERMITTED TO REPUDIA TE THE SAME ON THE PLEA THAT IT IS INCONSISTENT WITH T HE STATUTORY PROVISIONS OR IT MITIGATES THE RIGOUR OF THE LAW. 22. IN PAPER PRODUCTS LTD. VS. COMMISSIONER OF CENT RAL EXCISE ((2001) 247 ITR 128 SC: (1999) 7 SCC 84), WHI LE INTERPRETING SECTION 37B OF THE CENTRAL EXCISE ACT, 1944, WHICH IS IN PARI MATERIA WITH SECTION 28A OF T HE TNGST ACT, THIS COURT HAD HELD THAT THE CIRCULARS ISS UED BY THE CENTRAL BOARD OF EXCISE AND CUSTOMS ARE BINDI NG ON THE DEPARTMENT AND THE DEPARTMENT IS PRECLUDED FROM CHALLENGING THE CORRECTNESS OF THE SAID CIRCULARS , 18 EVEN ON THE GROUND OF THE SAME BEING INCONSISTENT W ITH THE STATUTORY PROVISION. IT WAS FURTHER HELD THAT T HE DEPARTMENT IS PRECLUDED FROM THE RIGHT TO FILE AN APP EAL AGAINST THE CORRECTNESS OF THE BINDING NATURE OF THE CIRCULARS AND THE DEPARTMENT'S ACTION HAS TO BE CONSISTENT WITH THE CIRCULAR WHICH IS IN FORCE AT T HE RELEVANT POINT OF TIME.' 10. EVEN OTHERWISE, WE ARE OF THE FIRM VIEW THAT T HE INSERTION OF WORDS 'OR ASSESSABLE' BY AMENDING SECT ION 50C WITH EFFECT FROM 1.10.2009 IS NEITHER A CLARIFICATI ON NOR AN EXPLANATION TO THE ALREADY EXISTING PROVISION AND IT IS ONLY AN INCLUSION OF NEW CLASS OF TRANSACTIONS NAMELY THE TR ANSFERS OF PROPERTIES WITHOUT OR BEFORE REGISTRATION. BEFORE IN TRODUCING THE SAID AMENDMENT, ONLY THE TRANSFERS OF PROPERTIES WHE RE THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AU THORITY WERE SUBJECTED TO SECTION 50C APPLICATION. HOWEVER AFTER INTRODUCTION OF THE WORDS 'OR ASSESSABLE' AFTER THE WORDS 'ADOPTED OR ASSESSED', SUCH TRANSFERS WHERE THE VAL UE ASSESSABLE BY THE STAMP VALUATION AUTHORITY ARE ALS O BROUGHT INTO THE AMBIT OF SECTION 50C. THUS SUCH INTRODUCTION OF NEW SET OF CLASS OF TRANSFER WOULD CERTAINLY HAVE THE PROSPECTIVE APPLICATION ONLY AND NOT OTHER WISE. HENCE THE ASSESSEE'S TRANSFER ADMITTEDLY MADE EARLI ER TO SUCH AMENDMENT CANNOT BE BROUGHT UNDER SECTION 50C. APPLYING THE ABOVE SAID DECISION OF THE HONOURABLE APEX COURT TO THE FACTS AND CIRCU MSTANCES OF THE CASE AS WELL AS BY CONSIDERING THE SCOPE OF SEC TION 50C, WE HOLD THAT THE REVENUE IS NOT ENTITLED TO CANVASS THE CORRECTNESS OF THE ORDER PASSED BY THE TRIBUNAL, MO RE PARTICULARLY IN THE LIGHT OF THE CIRCULAR ISSUED BY THE BOARD. ACCORDINGLY, THE TAX CASE APPEAL IS DISMISSED AND THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED AGAINST THE RE VENUE. NO COSTS. 22. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE PROVISIONS CONTAINED U/S 50C OF THE ACT, IT IS CLEA R THAT IN 19 THE CASE OF THE ASSESSEE TRANSFER HAD TAKEN PLACE BY VIRTUE OF AGREEMENT TO SELL ONLY. THEREFORE, IN THE SAID CASE SINCE NO VALUE HAS BEEN ASSESSED BY THE STAMP DUTY VALUE, THEREFORE, PROVISIONS OF SECTION 50C OF THE ACT WOU LD NOT APPLY IN THE CASE OF THE ASSESSEE. THE WORD ASSES SABLE INSERTED U/S 50C OF THE ACT W.E.F. 1.10.2009 WOULD NOT APPLY TO THE ASSESSMENT YEAR UNDER APPEAL I.E. ASSESSMENT YEAR 2009-10. CONSIDERING THE ABOVE DISCUSSION AND IN T HE LIGHT OF RELEVANT PROVISIONS AND CASE LAWS REFERRED TO AB OVE, WE ARE OF THE VIEW THAT SECTION 50C OF THE ACT IS NOT APPLICABLE IN THE PRESENT CASE AND THE ADDITION MADE BY THE AS SESSING OFFICER BY APPLYING SUCH PROVISIONS AMOUNTING TO RS.28,840/- IS, THEREFORE, DELETED. GROUND OF APPE AL NO.2 RAISED BY THE ASSESSEE IS, THEREFORE, ALLOWED. 23. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11 TH APRIL, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH