Shri Vishnu Mukati, Indore V. Pr. CIT-1, Indore

ITA 872/Ind/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2503 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-03-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 16-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ORS ITA NOS TO IND; TO IND
• Assessee Lawyers: SHRI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Revision of order; Opportunity of being heard; Principle of natural justice; Period of limitation; Retrospective amendment; Question of law; Fair market value; Valuation report; Prejudicial to interest; Ignorance of law; Set aside; Capital Gains
• Section: 143(3); 54B; 50C; 54F; 201; 43; 48; 13; 22; 148; 263; 63

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE MANISH BORAD, ACCOUNTANT MEMBER AND HONBLE MADHUMITA ROY, JUDICIAL MEMBER ITA NO.870/IND/2019 ASSESSMENT YEAR 2009-10 SHRI KAMAL KISHORE MUKATI : APPELLANT 83, KABIR KHEDI, SUKHLIYA, INDORE PAN : BXCPM1716K V/S PCIT-1, INDORE : RESPONDENT ITA NO.871/IND/2019 ASSESSMENT YEAR 2009-10 SHRI DILIP MUKATI : APPELLANT 83, KABIR KHEDI, SUKHLIYA, INDORE PAN : CBIPN5886P V/S PCIT-1, INDORE : RESPONDENT SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 2 ITA NO.872/IND/2019 ASSESSMENT YEAR 2009-10 SHRI VISHNU MUKATI : APPELLANT 83, KABIR KHEDI, SUKHLIYA, INDORE PAN : CDSPP6294A V/S PCIT-1, INDORE : RESPONDENT ITA NO.873/IND/2019 ASSESSMENT YEAR 2009-10 SHRI ASHOK MUKATI : APPELLANT 83, KABIR KHEDI, SUKHLIYA, INDORE PAN : BUAPM6383D V/S PCIT-1, INDOREL : RESPONDENT ITA NO.874/IND/2019 ASSESSMENT YEAR 2009-10 SHRI AKASH MUKATI : APPELLANT 83, KABIR KHEDI, SUKHLIYA, INDORE PAN : AKKPM9275F V/S PCIT-1, INDORE : RESPONDENT REVENUE BY SHRI S.B. PRASAD, CIT SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 3 ASSESSEE BY SHRI PANKAJ SHAH, CA ITA NO.433/IND/2018 ASSESSMENT YEAR 2009-10 SHRI SHANKARLAL MUKATI : APPELLANT VILLAGE: KABIR KHEDI, INDORE PAN : BECPM4857E V/S PCIT-1, INDORE : RESPONDENT ITA NO.434/IND/2018 ASSESSMENT YEAR 2009-10 SHRI BABULAL MUKATI : APPELLANT VILLAGE: KABIR KHEDI, INDORE PAN : BECPM4845M V/S PCIT-1, INDORE : RESPONDENT ITA NO.436/IND/2018 ASSESSMENT YEAR 2009-10 SHRI KAILASH CHANDRA SHIVAJI MUKATI : APPELLANT VILLAGE: KABIR KHEDI, SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 4 INDORE PAN : BECPM4856F V/S PCIT-1, INDORE : RESPONDENT ITA NO.442/IND/2018 ASSESSMENT YEAR 2009-10 SMT. TULSI BAI MUKATI : APPELLANT VILLAGE: KABIR KHEDI, INDORE PAN : BASPB9386H V/S PCIT-1, INDORE : RESPONDENT ITA NO.435/IND/2018 ASSESSMENT YEAR 2009-10 SHRI RADHESHYAM MUKETI : APPELLANT VILLAGE: KABIR KHEDI, INDORE PAN : CAXPM2522E V/S PCIT-1, INDORE : RESPONDENT ITA NO.437/IND/2018 SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 5 ASSESSMENT YEAR 2009-10 SHRI MOTILAL MUKATI : APPELLANT VILLAGE: KABIR KHEDI, INDORE PAN : BGLPM2251H V/S PCIT-1, INDORE : RESPONDENT ITA NO.438/IND/2018 ASSESSMENT YEAR 2009-10 SHRI MOTILAL MUKATI (L/H RAMCHANDRA) : APPELLANT VILLAGE: KABIR KHEDI, INDORE PAN : BMHPR7699A V/S PCIT-1, INDORE : RESPONDENT ITA NO.425/IND/2018 ASSESSMENT YEAR 2009-10 SHRI SUBHASH MUKATI (L/H BADRILAL GOVINDJI MUKATI) : APPELLANT VILLAGE: KABIR KHEDI, INDORE PAN : BPBPB9231H V/S SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 6 PCIT-1, INDORE : RESPONDENT REVENUE BY SHRI S.B. PRASAD, CIT ASSESSEE BY SHRI S.N. AGRAWAL, CA DATE OF HEARING 0 8 .04 .2021 DATE OF PRONOUNCEMENT 2 8 . 0 6 . 202 1 O R D E R PER BENCH: THE ABOVE CAPTIONED APPEALS FILED AT THE INSTANCE OF THE ASSESSEE(S) FOR ASSESSMENT YEAR 2009-10 ARE DIRECT ED AGAINST THE SEPARATE ORDERS OF LD. PR. COMMISSIONER OF INCO ME TAX(APPEALS)-I (IN SHORT LD. PCIT], INDORE DATED 1 5.03.2018 AND 27.02.2019. 2. REGISTRY HAS INFORMED THAT THERE IS A DELAY OF 1 22 DAYS IN FILING OF THE APPEALS IN ITANOS.870 TO 874/IND/2019 AND DELAY OF 54 DAYS IN THE REMAINING APPEALS CAPTIONED ABOVE. R ESPECTIVE ASSESSEE(S) HAVE FILED AN AFFIDAVIT FOR CONDONATION OF DELAY. ALL THE ASSESSEE(S) IN INSTANT APPEALS ARE RELATIVES AN D ARE ENGAGED IN AGRICULTURAL ACTIVITIES. IN THE CONDONATION APPL ICATIONS COMMON REASON IS DEATH OF ONE OF THE FAMILY MEMBER S AND LACK SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 7 OF NECESSARY ADVICE TO FILE THE APPEALS AND TIME LI MIT. WE HAVE GIVEN THOUGHTFUL CONSIDERATION AND IN THE LARGER IN TEREST OF JUSTICE AND THE REASONS MENTIONED BY THE RESPECTIVE ASSESSEES, CONDONE THE DELAY IN FILING OF INSTANT APPEALS AND ADMIT THEM FOR ADJUDICATION. 3. ASSESSEE(S) HAS RAISED FOLLOWING COMMON GROUNDS OF APPEAL IN ITANOS.870 TO 874/IND/2019:- GROUND I: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX -I, IN DORE ['THE PCIT'] ERRED IN INVOKING PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT, 1961 ('THE ACT') AND DIRECTING REVISION OF THE ASSESSMENT ORDER PASSED U/S. 143 (3)/147 OF THE ACT BY THE INC OME TAX OFFICER-1(4), INDORE ('THE AO') FOR EXAMINATION OF CAPITAL GAINS AND DEDUCTIONS ON THE ALLEGED GROUND THAT THE ASSESSMEN T ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. 2. THE APPELLANT PRAYS THAT SINCE THE ASSESSMENT ORDER PASSED BY THE AO WAS AFTER MAKING SPECIFIC AND FULL ENQUIRIES THEREFORE THE ASSESSMENT ORDER CANNOT BE REGARDED AS ERRONEOUS AN D ACCORDINGLY THE ACTION OF THE CIT IN INVOKING PROVISIONS OF SECTION 263 AND REVISING ASSESSMENT ORDER BE HELD AB-INITIO AND / OR OTHERWISE VOID AND BAD- IN-LAW. 3. HE FURTHER FAILED TO APPRECIATE THAT NO REVISION CAN BE MADE WHEN TWO VIEWS EXIST ON A DEBATABLE ISSUE. 4. THE APPELLANT FURTHER PRAYS THAT ORDER PASSED U/ S. 263 OF THE ACT OUGHT TO BE, IN THE FACTS AND CIRCUMSTANCES, ST RUCK DOWN AS NULL AND VOID AB INITIO. GROUND II : SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 8 WITHOUT PREJUDICE TO GROUND I: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT ERRED IN OBSERVING THAT THE CONDITIONS OF SECTION 5 4B AND SECTION 54F ARE NOT SATISFIED IN RESPECT OF CLAIM ALLOWED B Y THE AO. 2. THE APPELLANT PRAYS THAT THE ORDER PASSED U/S. 263 OF THE ACT BE STRUCK DOWN AS NULL AND VOID AND ASSESSMENT ORDE R OF THE AO BE RESTORED AND IT BE HELD THAT ON THE FACTS AND CI RCUMSTANCES, NO REVISION OR INTERFERENCE IS CALLED FOR. GROUND III: THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER AND /OR DELETE ANY/ALL OF THE ABOVE GROUNDS OF APPEAL. ASSESSEE(S) HAS RAISED FOLLOWING COMMON GROUNDS OF APPEAL IN ITANOS.433,434,436 & 442/IND/2018:- 1.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT BY INVOKING THE PROVISION OF SECTION 263 OF THE ACT EVEN WHEN T HE ORDER AS PASSED BY THE ASSESSING OFFICER WAS NEITHER ERRONEO US PREJUDICIAL TO THE INTEREST OF THE REVENUE. 1.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PAS SED BY THE ASSESSING OFFICER BY INVOKING THE PROVISION OF SECT ION 263 OF THE ACT EVEN WHEN THE ORDER WAS PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT AFTER FULL APPLICATION OF MIND. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PAS SED BY THE ASSESSING OFFICER BY INVOKING THE PROVISION OF SECT ION 263 OF THE ACT MERELY FOR APPLYING THE SALE CONSIDERATION AS P ER PROVISION OF SECTION 50C OF THE INCOME TAX ACT EVEN WHEN CONSIDE RATION WAS RECEIVED BY THE ASSESSEE IN PREVIOUS YEARS AS PER G UIDELINES AS APPLICABLE IN THAT YEAR. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 9 3. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, AL TER AND MODIFY THE GROUNDS OF APPEAL AS TAKEN. ASSESSEE(S) HAS RAISED FOLLOWING COMMON GROUNDS OF APPEAL IN ITANOS.435,437 & 438/IND/2018:- 1.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PAS SED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT BY INVOKING THE PROVISION OF SECTION 263 OF THE ACT EVEN WHEN THE O RDER AS PASSED BY THE ASSESSING OFFICER WAS NEITHER ERRONEOUS PREJ UDICIAL TO THE INTEREST OF THE REVENUE. 1.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PAS SED BY THE ASSESSING OFFICER BY INVOKING THE PROVISION OF SECT ION 263 OF THE ACT EVEN WHEN THE ORDER WAS PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT AFTER FULL APPLICATION OF MIND. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PAS SED BY THE ASSESSING OFFICER BY INVOKING THE PROVISION OF SECT ION 263 OF THE ACT MERELY FOR APPLYING THE SALE CONSIDERATION AS P ER PROVISION OF SECTION 50C OF THE INCOME TAX ACT EVEN WHEN CONSIDE RATION WAS RECEIVED BY THE ASSESSEE IN PREVIOUS YEARS AS PER G UIDELINES AS APPLICABLE IN THAT YEAR. 3. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, AL TER AND MODIFY THE GROUNDS OF APPEAL AS TAKEN. ASSESSEE(S) HAS RAISED FOLLOWING COMMON GROUNDS OF APPEAL IN ITANO.425/IND/2018:- 1.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PAS SED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT BY INVOKING THE PROVISION OF SECTION 263 OF THE ACT EVEN WHEN THE O RDER AS PASSED SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 10 BY THE ASSESSING OFFICER WAS NEITHER ERRONEOUS PREJ UDICIAL TO THE INTEREST OF THE REVENUE. 1.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PAS SED BY THE ASSESSING OFFICER BY INVOKING THE PROVISION OF SECT ION 263 OF THE ACT EVEN WHEN THE ORDER WAS PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT AFTER FULL APPLICATION OF MIND. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT ERRED IN SET ASIDE THE ORDER AS PAS SED BY THE ASSESSING OFFICER BY INVOKING THE PROVISION OF SECT ION 263 OF THE ACT MERELY FOR APPLYING THE SALE CONSIDERATION AS P ER PROVISION OF SECTION 50C OF THE INCOME TAX ACT EVEN WHEN CONSIDE RATION WAS RECEIVED BY THE ASSESSEE IN PREVIOUS YEARS AS PER G UIDELINES AS APPLICABLE IN THAT YEAR. 3. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, AL TER AND MODIFY THE GROUNDS OF APPEAL AS TAKEN. 4. FROM PERUSAL OF THE ABOVE GROUNDS WE FIND THAT MOST OF ISSUES RAISED ARE COMMON, THEREFORE AS ACCEPTED BY ALL THE PARTIES CONCERNED, WE HAVE TAKEN UP ALL THESE APPEA LS TOGETHER FOR ADJUDICATION AND THE SAME ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVI TY. 5. IN ALL THESE INSTANT APPEALS ASSESSEES HAVE CHAL LENGED THE ACTION OF LD. PR. CIT-1 INDORE, INVOKING THE PROVIS IONS OF SECTION 263 OF THE ACT AND DIRECTING FOR THE REVISION OF TH E ASSESSMENT ORDERS PASSED U/S 143(3) R.W.S.147 OF THE ACT. THE GROUNDS OF SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 11 APPEALS FURTHER INDICATE THAT FOLLOWING THREE ISSUE S ARE INVOLVED IN THE IMPUGNED ORDER FRAMED U/S 263 OF THE ACT:- A. VALUE OF SALE CONSIDERATION TO BE ADOPTED FOR CO MPUTING THE CAPITAL GAIN B. ALLOWABILITY OF DEDUCTION U/S 54B OF THE ACT C. ALLOWABILITY OF DEDUCTION U/S 54F OF THE ACT. FOR ADJUDICATION OF THESE COMMON ISSUES AS A LEAD C ASE WE ARE TAKING THE FACTS OF THE CASE OF KAMAL KISHORE MUKAT I ITANO.870/IND/2019 TO WHICH CONSENT WAS GIVEN BY LD . COUNSEL(S) FOR THE ASSESSEE AND THE LD. DEPARTMENTA L REPRESENTATIVE(DR). 6. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND SOURCE OF INCOME IS FROM AGRICULTURAL OPERATION , CAPITAL GAIN AND INCOME FROM OTHER SOURCES. THE ASSESSEE ALONG W ITH FAMILY MEMBERS ENTERED INTO AN UNDERSTANDING FOR SALE OF H IS AGRICULTURAL LAND ADMEASURING 3.522 HECTARES WITH S HRI VIJAY MIRCHANDANI JI WHO ACTED ON BEHALF OF M/S GLOBAL DE VELOPERS FOR SALE CONSIDERATION OF RS.1,91,48,000/- OUT OF W HICH MR. KAMAL KISHORE MUKATI HAD TO RECEIVED 1/5 TH SHARE I.E. RS.38,29,600/-. THIS SALE AGREEMENT WAS EXECUTED ON SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 12 31.03.2016 AND THE CONSIDERATION WAS RECEIVED THROU GH BANKING CHANNELS IN THE RESPECTIVE BANK ACCOUNTS OF THE SEL LERS ON DIFFERENT DATES SOON AFTER ENTERING THE AGREEMENT. THE SALE DEED WAS FINALLY REGISTERED ON 02.04.2008 BETWEEN THE AS SESSEE AND M/S. GLOBAL DEVELOPERS. THROUGH ANNUAL INFORMATION RETURN LD. AO RECEIVED INFORMATION ABOUT THE TRANSACTION OF SA LE OF IMMOVABLE PROPERTY REGISTERED ON 02.04.2008. IN ORD ER TO INITIATE THE ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT, NOTICE U/S 148 OF THE ACT WAS DULY SERVED UPON THE ASSESSE E AND IN COMPLIANCE THERETO RETURN OF INCOME FOR A.Y.2009-10 WAS FILED ON 18.04.2016, SHOWING INCOME AT RS.1,72,999/- AND AGRICULTURAL INCOME OF RS.1,37,500/-. DETAILED COMP UTATION OF INCOME ALONG WITH CALCULATIONS OF CAPITAL GAIN AND THE CLAIM OF DEDUCTION U/S 54 WERE FILED BY THE ASSESSEE AS REQU IRED BY THE ASSESSING OFFICER. LD. AO MADE ADDITION OF RS.25,00 0/- AND ASSESSED THE INCOME AT RS.1,98,000/- AND AGRICULTUR AL INCOME AT RS.1,37,500/-. 7. SIMILAR TYPE OF PROCEEDINGS WERE ALSO CARRIED OU T IN THE CASE OF REMAINING ASSESSEES WHEREIN ALSO IMMOVABLE PROPE RTY WAS SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 13 SOLD BY THE MEMBERS OF MUKATI FAMILY AND AGREEMENTS WERE ENTERED WITH VIJAY MIRCHANDANI ON BEHALF OF THE M/S GLOBAL DEVELOPERS. THE SALE CONSIDERATION MENTIONED IN THE SALE AGREEMENTS WERE MORE THAN THE VALUE AS PER THE STAM P VALUATION AUTHORITY PROVIDED U/S 50C OF THE ACT. PA YMENTS WERE RECEIVED THROUGH BANKING CHANNELS MUCH BEFORE THE F INAL DATE OF ENTERING TO THE REGISTERED SALE DEED DURING THE ASS ESSMENT YEAR 2009-10. THE SALE CONSIDERATIONS WERE RECEIVED BY T HE RESPECTIVE ASSESSEES AS PER THEIR SHARES IN THE IMMOVABLE PROP ERTY. ALL THE ASSESSMENTS WERE FILED U/S 147 R.W.S. 143(3) OF THE ACT ON RECEIVING SPECIFIC INFORMATION ON THE BASIS OF AIR. ASSESSEE WISE DETAILS OF APPEALS, SHARE OF SALE CONSIDERATION, RE GISTRY VALUE AND DATE OF ASSESSMENT U/S 143(3) R.W.S. 147 OF THE AC T ARE PROVIDED IN THE CHART BELOW: NAME OF THE ASSESSEE ITA NO. SHARE OF SALE CONSIDERATIO N REGISTRY VALUE ASSESSMENT U/S 143(3) R.W.S. 147 DATE KAMAL KISHORE MUKATI 870/IND/ 2019 38,29,600/ - 1,91,48,000/ 5 19.04.2016 DILIP MUKATI 871/IND/ 2019 38,29,600/ - 1,91,48,000/ 5 19.04.2016 VISHNU MUKATI 872/IND/ 2019 38,29,600/ - 1,91,48,000/ 5 19.04.2016 ASHOK MUKATI 873/IND/ 2019 38,29,600/ - 1,91,48,000/ 5 19.04.2016 SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 14 AKASH MUKATI 870/IND/ 2019 38,29,600/ - 1,91,48,000/ 5 19.04.2016 SHANKARLAL MUKATI 433/IND/ 2018 24,81,500/ - 99,26,000/ 4 19.01.2016 BABULAL MUKATI 434/IND/ 2018 24,81,500/ - 99,26,000/ 4 19.01.2016 KAILASH CHANDRA MUKATI 436/IND/ 2018 24,81,500/ - 99,26,000/ 4 19.01.2016 TULSI BAI MUKATI 442/IND/ 2018 24,81,500/ - 99,26,000/ 4 19.01.2016 RADHEYSHYAM MUKATI 435/IND/ 2018 28,60,000/ - 85,80,000/3 19.01.2016 MOTILAL MUKATI 437/IND/ 2018 28,60,000/ - 85,80,000/3 19.01.2016 MOTILAL MUKATI (L/H RAMCHANDRA MUKATI) 438/IND/ 2018 28,60,000/ - 85,80,000/3 19.01.2016 SUBHASH MUKATI (L/H BADRILAL MUKATI) 425/IND/ 2018 99,26,000/ - 99,26,000/ - 19.01.2016 8. SUBSEQUENTLY, LD. PR. CIT INVOKED THE PROVISIONS OF SECTION 263 OF THE ACT IN CASE OF ALL THE ASSESSEE(S) IN TH E INSTANT APPEALS AND ISSUED SHOW CAUSE NOTICE U/S 263 OF TH E ACT. SINCE CONTENT OF MOST OF THE NOTICES ISSUED ARE COMMON D EPENDING ON THE VALUE OF SALE CONSIDERATION AND THE SHARE OF SA LE CONSIDERATION AND DEDUCTION CLAIMED U/S 54OF THE AC T BY THE RESPECTIVE ASSESSEES, WE ARE REPRODUCING BELOW THE SHOW CAUSE NOTICE ISSUED IN THE CASE OF KAMAL KISHORE MUKATI ITANO.870/IND/2019, SHANKARLAL MUKATI ITANO.433/IND /2018, SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 15 RADHESHYAM MUKATI ITATNO.435/IND/2018 & SUBHASH MUK ATI L/H SHRI BADRILAL MUKATI ITANO.425/IND/2018: KAMAL KISHORE MUKATI 2.1 THE RELEVANT PORTION OF THE SHOW CAUSE NOTICE U/S 2 63 IS REPRODUCED AS UNDER:- (I) IT IS OBSERVED THAT YOUR CASE WAS REOPEN ON THE BAS IS OF AIR INFORMATION RELATING TO THE A. Y. 2009-10 ON ACCOUN T SALE OF IMMOVABLE PROPERTY. AS PER RECORDS YOU HAD SOLD JOINT AGRICUL TURAL LAND FOR A STATED CONSIDERATION OF RS. 1,91,48,000/- VIDE SALE DEED D ATED 02/04/2008 AND SHOWN SHARE IN THE SALE CONSIDERATION WAS RS. 3 8,29,600/- (1,91,48,000/5) WHEREAS THE MARKET VALUE OF THE LAND WAS ASSESSED BY THE SUB REGISTRAR AT RS. 3,60, 00,000/-. FURTHER, T HE AD HAD ALSO TAKEN SALES CONSIDERATION AT RS 38,29,600/-[ I.E. 1/5 OF 1,91,48,000) AND ACCORDINGLY CALCULATED LONG TERM CAPITAL GAIN WHILE COMPLETING THE REASSESSMENT U/S 147/14 3(3) OF THE INCOME TAX ACT /961. HOWEVER, IN VIEW OF SECTION 50C, THE SALE VALUE O] THE LAND WAS REQUIRED TO BE TAKEN AT RS. 72,00,000/- (3,60,00,000/5) INSTEAD OF RS. 38,29,600/-. (II) FROM THE PERUSAL 0.[ CASE RECORDS IF IS SEEN THAT CONDITIONS OF SECTION 54B ARE NOT SATISFIED IN RESPECT CLAIM OF RS.1,03, 450/- ALLOWED BY THE AO THE LAND HAS BEEN PURCHASED PRIOR TO REGIST ERED SALE OF LAND BY THE ASSESSEE. (III) THE CONDITION OF SECTION 54F ARE NOT SATISFIED IN R ESPECT OF RS.20,56,335/- ALLOWED BY THE AO AS VALUATION IS B ASED ON FAIR MARKET PRICE AS ON 22.03.2016 WHILE ASSESSMENT PER TAINS TO A. Y. 2009- 10. THE CLAIM OF DEDUCTION U/S 54F HAS NOT BEEN PR OPERLY EXAMINED BY AO SO THE SAME IS CONSTRUED COST HAS B EEN CONSIDERED TO BE ERRONEOUS AS WELL AS PREJUDICIAL TO INTEREST OF REVENUE. ' SHANKARLAL MUKATI 2. THE RELEVANT PORTION OF THE SHOW CAUSE NOTICE U /S 263 IS REPRODUCED AS UNDER:- IT IS OBSERVED THAT YOUR CASE WAS REOPEN O N THE BASIS OF AIR INFORMATION RELATING SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 16 TO THE A.Y. 2009-10 ON ACCOUNT SALE OF IMMOVABLE PROPERTY. AS- PER RECORDS YOU HAD SOLD JOINT AGRICULTURAL LAND FOR A STATED CONSIDERATION OF RS.99,26,000/- VIDE SALE DEED DATED 11.4.2008 AND SHOWN SHARE IN THE SA LE CONSIDERATION WAS RS.24,81,500/- (9926000/4). WHEREAS THE MARKET VALUE OF THE LAND WAS ASSESSED BY THE SUB REGISTRAR AT RS. 2,07,61,000/-. FURTHER, THE AO HAD ALSO TAKEN SALES CONSIDERATION AT RS 24,81,500/- [ I.E. OF 99,26,OOO/- AND ACCORDINGLY CALCULATED LONG TERM CAPITAL GAIN 'WHILE COMPLETING THE REASSESSMENT U/S 147/143(3) OF THE INCOME TAX ACT. 1961.HOCUEVER, IN VIEW OF SECTION SAC THE SALE VALUE OF THE LAND WAS REQUIRED TO BE TAKEN AT RS. 51,90,250/- (2,07,61,00014) INSTEAD OF RS. 24,81/500/- RADHEYSHYAM MUKATI 2.1 THE RELEVANT PORTION OF THE SHOW CAUSE NOTICE U/S 263 IS REPRODUCED AS UNDER.- IT IS OBSERVED THAT YOUR CASE WAS REOPEN -ON THE BA SIS OF AIR INFORMATION RELATING TO THE A. Y. 2009-10 ON ACCOUNT SALE OF IMMOVABLE PROPERTY. AS P ER RECORDS YOU HAD SOLD JOINT AGRICULTURAL LAND FOR A STATED CONSIDERA TION OF RS. 85,80,000/- VIDE SALE DEED DATED 11/04/2008 AND SHOWN SHARE IN THE SALE C ONSIDERATION WAS RS. 28,60,000/- (85,80,00013). WHEREAS THE MARKET VALUE OF THE LAND WAS ASSESSED BY THE SUB REGISTRAR AT RS. 1,85,02,000/-. FURTHER, TH E AO HAD ALSO TAKEN SALES CONSIDERATION AT RS 28,60,000/-[ I.E.1/3 OF 85,80,OOO] AND ACCORDINGLY CALCULATED LONG TERM CAPITAL GAIN WHILE COMPLETING THE REASSES SMENT U/S 147/143(3) OF THE INCOME TAX ACT. 1961.HOWEVER, IN VIEW OF SECTION 50 C, THE SALE VALUE OF THE LAND WAS REQUIRED TO BE TAKEN AT RS. 61,67,333/- (1,85,0 2,000/3) INSTEAD OF RS.28,60,000/-. SUBHASH MUKATI IT IS OBSERVED THAT YOUR CASE WAS REOPEN -ON THE BA SIS OF AIR INFORMATION RELATING TO THE A. Y. 2009-10 ON ACCOUNT SALE OF IMMOVABLE PROPERTY. AS P ER RECORDS YOU HAD SOLD JOINT AGRICULTURAL LAND FOR A STATED CONSIDERA TION OF RS. 99,26,000/- VIDE SALE DEED DATED 11/04/2008 AND SHOWN SHARE IN THE SALE C ONSIDERATION WAS RS. 28,60,000/- (85,80,00013). WHEREAS THE MARKET VALUE OF THE LAND WAS ASSESSED BY THE SUB REGISTRAR AT RS. 2,07,61,000/-. FURTHER, TH E AO HAD ALSO TAKEN SALES CONSIDERATION AT RS 99 ,26,000 AND ACCORDINGLY CALCULATED LONG TERM CAPITA L GAIN WHILE COMPLETING THE REASSESSMENT U/S 147/143(3) OF THE INCOME TAX ACT. 1961.HOWEVER, IN VIEW OF SECTION 50C, THE SALE VALU E OF THE LAND WAS REQUIRED TO BE TAKEN AT RS. 2,07,61,000/- (INSTEAD OF RS. 99 ,26,000/-. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 17 9. SINCE WE ARE DEALING WITH THE COMMON ISSUES ON T HE BASIS OF FACTS OF THE ASSESSEE NAELY KAMAL KISHORE MUKATI, W E OBSERVE THAT DETAILED SUBMISSION WAS FILED BY THE ASSESSEE BEFORE LD. PR. CIT SUBMITTING THAT LD. AO HAS CARRIED OUT DETAILED ENQUIRY ABOUT THE TRANSACTION OF SALE OF IMMOVABLE PROPERTY AND SPECIFIC NOTICE WAS ISSUED U/S 148 OF THE ACT TO WHICH THE D ETAILS INFORMATION WERE FILED AND THE VIEW ADOPTED BY THE LD. ASSESSING OFFICER IS ONE OF THE LEGALLY PERMISSIBLE VIEW AS H ELD BY HON'BLE COURTS AND HON'BLE TRIBUNALS. ALL INFORMATION WERE PROVIDED TO THE LD. AO AND AFTER DUE APPLICATION OF MIND HE HAS ACCEPTED THE SUBMISSIONS AND HAVE ALSO MADE THE ADDITIONS AS AND WHERE NEEDED. IT WAS ALSO SUBMITTED THAT COPIES OF AGREEM ENT OF SALE AND THE REGISTERED SALE DEED WERE PLACED BEFORE LD. AO AND BEFORE LD. PR. CIT. THE SALE CONSIDERATION WAS RECE IVED MUCH BEFORE THE DATE OF REGISTERING SALE DEED DURING THE A.Y. 2009-10. HOWEVER, LD. PR. CIT WAS NOT CONVINCED AND CONSIDER ED THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF REVENUE AND SET ASIDE TO THE FILE OF THE LD. AO FOR PASSING A FRESH SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 18 ORDER, TAKING INTO CONSIDERATION VARIOUS OBSERVATIO NS HOLDING AS FOLLOWS: 4. I HAVE CAREFULLY EXAMINED THE RECORDS OF THE ASS ESSMENT PROCEEDINGS AND EXPLANATIONS SUBMITTED BY THE ASSESSEE, KEEPING IN VIEW THE RELEVANT PROVISIONS OF LAW AND JUDICIAL PRECEDENTS. 4.1 AS REGARDING THE ASSESSEE'S CLAIM OF DEDUCTION ULS 50C OF THE IT ACT FOLLOWING FACTS ARE RELEVANT: 4.1.1 IT IS A FACT THAT ALTHOUGH THE IMMOVABLE PROP ERTY WAS JOINTLY SOLD BY THE ASSESSEE FOR A STATED CONSIDERATION OF RS.L ,91 ,48,000/- VIDE SALE DEED DATED 11.04.2008, MARKET VALUE OF THE PROPERTY WAS ASSESSED BY THE SUB REGISTRAR AT RSJ,60,00,0001-. THEREFORE, THE PROVISIONS OF SECTION SOC ARE ATTRACTED IN THIS CASE. 4.L.2 AS REGARDS TIRE PLEA OF THE ASSESSEE THAT HE HAD ENTERED INTO AN AGREEMENT WITH THE PURCHASES ON 31.03.2006 AND RECE IVED PART CONSIDERATION THROUGH CHEQUE, AS PER THE SALE DEED DATED 11.04.2008, THE SELLER HAD RESERVED THE RIGHT ON THE PROPERTY TILL THE DATE OF SALE DEED, HENCE TRANSFER DID NOT TAKE PLACE TILL THE EXECUTIO N OF THE SALE DEED. PERUSAL OF THE SAID DEED FURTHER REVEALS THAT- 4.1.3 THUS, IT IS APPARENT FROM THE SALE DEED ITSEL F, THAT THE ASSESSEE HAD NOT HANDED OVER POSSESSION OF THE PROPERTY IN QUEST IONED TILL THE DATE OF EXECUTION OF SALE DEED 11.04.2008. THUS EVEN THOUGH THE ASSESSEE MAY HAVE ENTERED INTO AN AGREEMENT ON 31.03.2006 FOR SA LE OF THE PROPERTY IN QUESTION AND MAY HAVE RECEIVED PART CONSIDERATION, POSSESSION WAS NOT HANDED OVER TILL EXECUTION OF THE DEED OF 11.04.200 8. THEREFORE, THE CLAIM OF THE ASSESSEE THAT THE LAND HAD BEEN SOLD AS PER AGREEMENT DATED 31.03.2006 IS NOT CORRECT. 4.1.4 MOREOVER, IT IS ALSO OBSERVED AGREEMENT DATED 31.03.2006 WAS ENTERED INTO BY THE ASSESSEE AND OTHER CO-OWNERS WI TH MIS GLOBAL DEVELOPERS, 210, SHALIMAR CORPORATE CENTRE, 8- B, S OUTH TUKOGANJ, INDORE, WHEREAS THE LAND WAS ULTIMATELY SOLD BY THE M ON 11.04.2008 TO MIS CORAL INFRASTRUCTURES PRIVATE LIMITED, 505-506, SHA LIMAR MAURYA PARK, NEW LINK ROAD, ANDHERI (E), MUMBAI. THEREFORE, THE PLEA OF THE ASSESSEE THAT THE PROPERTY HAD ALREADY BEEN TRANSFERRED (TO MIS GLOBAL DEVELOPERS, INDORE) IN PURSUANCE OF AGREEMENT DATED 31.03.2006 IS NOT CORRECT AS THE SAME LAND CANNOT AGAIN BE TRANSFERRED TO A, DIFFERE NT ENTITY (MIS CORAL SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 19 INFRASTRUCTURES PRIVATE LIMITED) VIDE SALE DEED DAT ED 11.04.2008. IN THIS REGARD ASSESSEE HAS CONTENDED THAT SALE WAS MADE TO SHRI VIJAY MIRCHANDANI WHO WAS PERSON CONCERNED IN BOTH MIS GLOBAL DEVELOPERS AND MIS CORAL INFRASTRUCTURE P. LTD. HOWEVER BOTH A BOVE ENTITIES ARE DIFFERENT LEGAL ENTITIES AND MIS CORAL INFRASTRUCTU RE P. LTD IS A COMPANY WHERE SHRI VIJAY MIRCHANDANI IS DIRECTOR. SO SALE C ANN'T BE TREATED TO THE SAME PERSON BY SALE AGREEMENT AND REGISTERED SALE D EED. 4.1.5 AS REGARDING THE ASSESSEE'S CONTENTION THAT I T WAS DUE TO IGNORANCE OF LAW ON PART OF ASSESSEE, IT MAY BE MENTIONED THA T IT IS OUT OF CONTEXT AS THE ASSESSING OFFICER WAS REQUIRED TO ADOPT THE SAL E CONSIDERATION OF THE LAND AS PER PROVISIONS OF SECTION 50C OF THE IT ACT BASED ON THE REGISTERED SALE DEED DATED 11.04.2008 WHICH HAS NOT BEEN DONE. 4.1.6 IT MAY ALSO BE MENTIONED THAT ASSESSEE HAS CL AIMED THE INDEXATION OF COST OF LAND BASED ON DATE OF TRANSFER BEING 11. 04.2008 WHICH IS THE DATE OF REGISTERED DEED. IN ABOVE CIRCUMSTANCES, IT IS CLEAR THAT ACTUAL SALE TOOK PLACE ON ABOVE DATE TO M/S CORAL INFRASTRUCTUR E P. LTD. FROM ABOVE IT IS CLEAR THAT THE SAID PROPERTY WAS N OT TRANSFERRED AS ON 31.03.2006 AND ACTUAL TRANSFER TOOK PLACE AS PER TH E SALE DEED DATED 11.04.2008 WHEN THE SAID PROPERTY WAS REGIST -; D O F RS.3,60,00,0001- AND ASSESSEE'S 1/5 TH SHARE WAS RS.72,00,0001- WHICH WAS LIABLE TO BE TAXED ULS SOC OF THE I.T. ACT WHICH HAS NOT BEEN DONE BY THE A.O .. THUS THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 4.2 AS REGARDING THE ASSESSEE'S CLAIM OF DEDUCTION ULS 54B, THE ASSESSEE HAS PURCHASED THE AGRICULTURAL LAND ON 16.05.2007 A ND CLAIM DEDUCTION OFRS.5,73,025/- ULS 54B. HOWEVER, THE SALE DEED WAS REGISTERED ON 11.04.2008. AS THE PURCHASE OF AGRICULTURE LAND IS BEFORE THE SALE OF CAPITAL ASSET, THE DEDUCTION ULS 54B IS NOT ALLOWAB LE. THE AO WAS REQUIRED TO EXAMINE WHETHER THE VARIOUS CONDITIONS FOR SATISFYING THE CLAIM OF DEDUCTION ULS 54B ARE SATISFIED WHICH HAS NOT BEEN DONE CORRECTLY & PROPERLY. THUS THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 4.3 AS REGARDING THE ASSESSEE'S CLAIM OF DEDUCTION ULS 54F, THE ASSESSEE HAS FILED THE COPY OF VALUATION REPORT FOR THE CONS TRUCTION OF THE HOUSE WHICH IS DATED 22.03.2016 AND IT IS MENTIONED THERE IN THAT VALUATION OFRS.48,99,0001- IS BASED ON FAIR MARKET PRICE AS O N 22.03.2016. THE AO HAS ALLOWED THE DEDUCTION OF RS.17 ,36,091/- ULS 54 F ON INVESTMENT OF RS.28, 19,0001- WITHOUT EXAMINING HOW MUCH OF THE A MOUNT WAS SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 20 INVESTED IN THE CONSTRUCTION OF THE HOUSE AS PER TH E SALE DEED DATED 11.04.2008 AS PER THE PRESCRIBED CONDITIONS ULS 54F OF THE IT ACT. APPARENTLY, THE AO HAS NOT ALLOWED THE DEDUCTION AF TER EXAMINING THE ISSUE CORRECTLY. ACCORDINGLY, THE ORDER OF THE AO I S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 4.4 AN ORDER CAN BE ERRONEOUS & PREJUDICIAL TO INTEREST OF REVENUE ON THE GROUND THAT IN THE CIRCUMSTANCES OF THE CASETHE ASS ESSING OFFICER SHOULD HAVE MADE FURTHER INQUIRIES. IT IS DUTY OF THE ASSE SSING OFFICER TO ASCERTAIN THE TRUTH OF THE FACTS STATED BY THE ASSE SSEE. IT IS INCUMBENT ON THE ASSESSING OFFICER TO INVESTIGATE THE FACTS STAT ED WHEN CIRCUMSTANCES WOULD MAKE SUCH AN INQUIRY PRUDENT. 5. AS PER PROVISIONS OF SECTION 263, THE PRO COMMI SSIONER OF INCOME TAX MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROC EEDINGS AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSE SSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE, HE MAY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEI NG HEAR AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEE MS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE , JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT OR CANC ELLING THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. 6. IT- MAY BE MENTIONED THAT EXPLANATION-2 TO SECTION 263 HAS BEEN INTRODUCED W.E.F. 01-06- 2016 IN THE SECTION 263 OF THE IT ACT WHICH STATES AS UNDER:- 'EXPLANATION-Z- FOR THE PURPOSES OF THIS SECTION, I T IS HEREBY DECLARED THAN AN ORDER PASSED BY THE ASSESSING OFFICER SHALL BE D EEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF T HE REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMISSIONER OR COMMISSIONER:- THE ORDER IS PASSED WITHOUT MAKING INQUIRIES OR VER IFICATION WHICH SHOULD HAVE BEEN MADE. THE ORDER IS PASSED ALLOWING ANY RELIEF WITHOUT INQ UIRING INTO THE CLAIM; THE ORDER HAS NOT BEEN MADE IN ACCORDANCE WITH ANY ORDER, DIRECTION OR INSTRUCTION ISSUED BY THE BOARD UNDER SECTION 119; OR THE ORDER HAS NOT BEEN PASSED IN ACCORDANCE WITH AN Y DECISION WHICH IS PREJUDICIAL TO THE ASSESSEE, RENDERED BY THE JURISD ICTIONAL HIGH COURT OF SUPREME COURT IN THE CASE OF THE ASSESSEE OR ANY OT HER PERSON. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 21 REFE RENCE MAY BE MADE TO THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. R MAR GARG, 299 ITR 435. REFERENCE MAY ALSO BE MADE T O THE OBSERVATION OF THE COURT IN THE CA SE OF MT. ZUBI KOCHAR VS. ACIT 112 TTL 297, ITAT DELHI - E BENCH REPRODUCED BELOW: ' 12. A PERUSAL OF THE NOTICE ISSUED BY THE LEARNED CIT UNDER S. 263 ON 27TH JAN., 2004 CLEARLY SHOWS THAT IT WAS NOT A CASE WHERE THE VIEW TAKEN BY THE AO ON ANY ISSUE WAS HELD TO BE ER RONEOUS BY THE LEARNED CIT ON MERITS FOR ASSUMING JURISDICTION UND ER S. 263 IN ORDER TO SUBSTITUTE THE SAME WITH HIS OWN VIEW BY E XERCISING THE POWERS CONFERRED ON HIM UNDER S. 263. ON THE OTHER HAND, THE ASSESSMENT MADE BY THE AO WAS HELD TO BE ERRONEOUS AS' WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE BY HIM F OR THE REASON THAT NO PROPER ENQUIRIES AS REQUIRED IN THE FACTS AND CI RCUMSTANCES OF THE CASE WERE MADE BY THE AO WHILE COMPLETING THE A SSESSMENT AND EVEN SUCH PROPER ENQUIRIES WHICH THE AO OUGHT T O HAVE MADE WERE ALSO PRECISELY IDENTIFIED BY HIM IN THE SAID N OTICE. IN THE CASES OF SMT. TARA DEVI AGGARWAL VS. CIT 1973 CTR (SC) 10 7 .' (1973) 88 ITR 323 (SC) AND RAMPYARI DEVI SARAOGI VS. CIT (1968) 67 ITR 84 (SC), IT WAS HELD BY THE HON'BLE SUPREME COURT THAT THE CIT CAN REGARD THE ORDER OF THE AO AS ERRONEOUS ON THE GROUND THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ITO SH OULD HAVE MADE FURTHER ENQUIRIES BEFORE ACCEPTING THE STATEMENTS M ADE BY THE ASSESSEE IN HIS RETURN. FOLLOWING THESE TWO DECISIO NS OF HON'BLE SUPREME COURT, HON'BLE ALLAHABAD HIGH COURT HAS HELD IN THE CASE OF SMT. LAJJA WATI SINGHAL VS. CIT (1997) 138 CTR ( ALL) 320 : (1997) 226 ITR 527 (ALL) THAT, AN ASSESSMENT MADE ON INCOME SURRENDERED BY THE ASSESSEE WITHOUT MAKING ANY ENQU IRY WHETHER THE SAME WAS IN FACT TAXABLE IN HIS HANDS WAS ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. FURTHER , AS HELD BY HON'BLE DELHI HIGH COURT IN THE CASES OF GEE VEE EN TERPRISES VS. ADDL. CIT 1975 CTR (DEL) 61 : (1975) 99ITR 375 (DEL), DUGGAL & CO. VS. CIT (1994) 122 CTR (DEL) 171 ; (1996) 220 ITR 456 (DEL), IT IS INCUMBENT ON THE AO TO FURTHER INVESTIGATE THE FACT S STATED IN THE RETUM WHEN CIRCUMSTANCES WOULD MAKE SUCH AN ENQUIRY PRUDENT AND HIS ORDER BECOMES ERRONEOUS IF SUCH AN ENQUIRY HAS NOT BEEN MADE. MOREOVER, AS HELD BY HON'BLE GUJARAT HIGH COU RT IN THE CASE OF ADDL. CIT US. MUKUR CORPORATION (1978) 111ITR 312 (GUJ), AN ORDER OF ASSESSMENT PASSED BY THE AO WITHOUT MAKING NECESSARY ENQUIRIES ON CERTAIN IMPORTANT POINTS CONNECTED WIT H TNE ASSESSMENT WOULD BE ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF THE REVENUE. TO THE SIMILAR EFFECT IS THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CWT VS. RAMNARAY AN BHOJNAGARWALA (1992) 104 CTR (CAL) 50 .' (1992) 194 ITR 489 SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 22 (CAL), WHEREIN IT WAS HELD THAT WHENEVER A QUESTION ARISES AS TO WHETHER A CORRECT AND PROPER ASSESSMENT HAS BEEN MA DE UPON DUE ENQUIRY AND IT IS FOUND THAT NO SUCH ENQUIRY WAS MADE, THE CIT HAS JURISDICTION IN SUCH A CASE TO SET ASIDE THE ASSE SSMENT BY INVOKING THE POWERS CONFERRED UPON HIM UNDER S. 263. IN THE CASE OF 1ALABAR INDUSTRIAL CO. LTD. RELIED UPON BY BO TH THE SIDES AT THE TIME OF HEARING BEFORE US, HON'BLE SUPREME C OURT HAS HELD THAT THE PHRASE 'PREJUDICIAL TO THE INTEREST OF THE REVENUE' IS NOT AN EXPRESSION OF ART AND IS NOT DEFINED IN THE ACT. EXPLAINING FURTHER) I: WAS OBSERVED BY THE HON'BLE SUPREME COURT THAT UNDERSTOOD IN ITS ORDINARY MEANING, THE SAID EXPRESS ION IS OF WIDE IMPORT AND IS NOT CONFINED TO LOSS OF TAX. 13. A RESUME OF THE AFORESAID JUDICIAL PRONOUNCEMENT S CLEARLY SHOWS THAT THE VERY FACT THAT ASSESSMENT WAS MADE B Y THE AO WITHOUT PROPER AND SUFFICIENT ENQUIRIES, AS WARRANTED IN THE FACTS AND CIRCUMSTANCES OF THE CASE, MAKES IT ERRONE OUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE GIVING JURISDICTION TO THE LEARNED CIT UNDER S. 263 AT THAT STAGE AND EVEN IF IT IS ULTIMATELY FOUND ON MERITS AFTER CONDUCTING SUCH EN QUIRIES THAT THERE WAS IN FACT NO LOSS TO THE REVENUE, THE SAME W OULD NOT HAVE ANY BEARING ON THE JURISDICTION OF THE LEARNED CIT WHICH WAS OTHERWISE VALIDLY ASSUMED AT THE TIME OF INITIA TING THE PROCEEDINGS UNDER S. 263. AS SUCH, KEEPING IN VIEW ALL THE FACTS OF THE CASE AS WELL AS THE LEGAL POSITION EMANATING FR OM THE VARIOUS JUDICIAL PRONOUNCEMENTS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT THE ASSUMPTION OF JURISDICTION BY THE LEAR NED CIT BY ISSUANCE OF NOTICE ON 27TH JAN., 2004 WAS IN ACCORDANCE WITH LAW AND THERE WAS NO LEGAL INFIRMITY IN THE IMPUGNED ORDER PASSED BY HIM ON THIS COUNT AS ALLEGED BY THE LEARNE D COUNSEL FOR THE ASSESSEE. WE, THEREFORE, FIND NO MERITS IN T HE CONTENTIONS RAISED BY HIM ON THIS ISSUE AND REJECT THE SAME.' 8. CONSIDERING THE FACTS OF THE CASE THE ORDER IS C ONSIDERED TO BE ERRONEOUS AND PREJUDICIAL TO INTEREST OF THE REVENU E. 9. THE ORDER OF THE AO IS THEREFORE SET ASIDE TO TH E FILE OF THE AO WITH THE DIRECTION THAT HE SHOULD EXAMINE THE ISSUES OF CAPI TAL GAINS AND DEDUCTIONS THEREON IN THE LIGHT OF THE OBSERVATIONS MADE AND AFTER ASCERTAINING ALL THE FACTS AND AFFORDING PROPER OPP ORTUNITY TO THE ASSESSEE TAKE DECISION AS PER LAW. THE ORDER DATED 19.04.201 6 PASSED U/S 143(3)/147 IS THEREFORE SET ASIDE TO ABOVE EXTENT O N THE ABOVE ISSUES WITH THE DIRECTION TO THE AO FOR PASSING A FRESH ORDER T AKING INTO CONSIDERATION THE OBSERVATIONS NOTED ABOVE AS PER LAW SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 23 10. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED REFERRING TO THE FOLLOWING WRITTEN SUBMISSIONS AND VARIOUS DECISIONS REFERRED THEREIN CONTENDED THAT THE LD. PR. CIT ERRED IN ASSUMING JURISDICTION U/S 263 OF THE ACT SINCE THERE A DETAILED ENQUIRY WAS CONDUCTED BY THE LD. AO WITH REGARD TO THE TRANSACTION IN QUESTION BY WAY OF CAL LING OF VARIOUS DOCUMENTARY EVIDENCES WHICH WERE DULY FILED AND THE SAME WERE GOING THROUGH BEFORE COMPLETING THE ASSESSMENT PROC EEDINGS U/S 147 OF THE ACT. THUS, THIS IS NEITHER A CASE OF NO ENQUIRY NOR INCOMPLETE ENQUIRY. WRITTEN SYNOPSIS FILED BY THE L D. COUNSEL FOR THE ASSESSEE IS REPRODUCED BELOW: 1.1] THE PRESENT APPEAL IS FILED AGAINST THE ORDER AS PASSED UNDER SECTION 263 OF THE INCOME TAX ACT DATED27-02-2019. 1.2] THE LD PR CIT ISSUED SHOW CAUSE NOTICE UNDER S ECTION 263 OF THE INCOME TAX ACT ON THE FOLLOWING TWO POINTS: TO ADOPT THE SALE VALUE AS PER SECTION 50C OF RS72, 00,000/- IN PLACE OF ACTUAL SALE CONSIDERATION OF RS3829600/- ALLEGEDLY FOR THE REASON THAT CONDITION FOR ALLOWAB ILITY OF DEDUCTION UNDER SECTION 54B OF THE ACT IN RESPECT OF RS5,73,025/- W AS NOT FULFILLED. SINCE, THE LAND WAS PURCHASED PRIOR TO THE SALE OF LAND BY THE ASSESSEE ALLEGEDLY FOR THE REASON THAT CONDITION OF SECTION 54F ARE NOT SATISFIED IN SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 24 RESPECT OF RS. 17,36,091 ALLOWED AS DEDUCTION 1.3.1] THE ASSESSEE ALONGWITH FAMILY MEMBERS ENTERE D INTO AN UNDERSTANDING FOR SALE OF HIS AGRICULTURAL LAND ADM EASURING 3.522 HECTARES WITH SHRI VIJAY MIRCHANDANIJI ON BEHALF OF M/S GLOBAL DEVELOPERS AT RS.19148000/- OUT OF WHICH THE APPELLANT HAD ONE FIFTH SHARE. COPY OF SAUDA CHITHI AS EXECUTED IS ALREADY ON RECORD. 1.3.2] SALE AGREEMENT IN RESPECT OF AGRICULTURAL LA ND WAS EXECUTED ON 31- 03-2016 WITH THE ASSESSEE AND ALSO WITH THE OTHER F AMILY MEMBERS OF THE ASSESSEE. COPY OF SALE AGREEMENT AS EXECUTED IS ENC LOSED. THE APPELLANT WITH THE SALE AGREEMENT RECEIVED PAYMENT THROUGH BA NKING CHANNELS WHICH WERE DULY CREDITED IN HIS BANK ACCOUNT. 1.3.3] THE AMOUNT AS RECEIVED BY THE ASSESSEE FROM THE BUYER ON DIFFERENT DATES AND CREDITED IN HIS BANK ACCOUNT IS ALREADY O N RECORD. 1.4.1] THE LD PR CIT HAS HELD THAT THE SALE AGREEME NT WAS EXECUTED BY THE ASSESSEE WITH SHRI VIJAY MIRCHANDANI ON BEHALF OF M /S GLOBAL DEVELOPERS BUT REGISTRY WAS EXECUTED IN THE NAME OF M/S CORAL INFRASTRUCTURE P LIMITED THROUGH ITS DIRECTOR SHRI VIJAY MIRCHANDANI. HENCE, HE WAS OF THE OPINION THAT THE GUIDELINE RATE AS APPLICABLE AT THE TIME O F REGISTRY IS APPLICABLE IN THE CASE OF THE APPELLANT. 1.4.2] THE ASSESSEE HAS ENTERED INTO AN AGREEMENT F OR SALE OF HIS LAND WITH SHRI VIJAY MIRCHDANI ON BEHALF OF M/S GLOBAL D EVELOPERS. THE SALE CONSIDERATION WAS FIXED FOR HIS LAND AT RS3829600/- . IN PARA 5 OF THE SALE AGREEMENT IT WAS CLEARLY MENTIONED THAT THE SE LLER IS BOUND TO EXECUTED REGISTRY EITHER IN FAVOUR OF THE BUYER OR IN THE NAME OF ANY OTHER PERSONS AS SUGGESTED BY THE BUYER. 1.4.3] THE SALE AGREEMENT AS EXECUTED WAS NEVER CAN CELLED. THE AMOUNT AS RECEIVED BY THE ASSESSEE WAS QUOTED IN TH E SALE REGISTRY AS EXECUTED. THE ASSESSEE HAS NEVER ENTERED INTO AN AG REEMENT FOR SALE SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 25 OF HIS LAND WITH M/S CORAL INFRASTRUCTURE P LIMITED . SINCE, THE ASSESSEE HAD RECEIVED ADVANCE AGAINST THE SALE OF L AND IN TERM OF SALE AGREEMENT AS EXECUTED ON 31-03-2006 AND THEREFORE H E HAS EXECUTED REGISTRY IN THE NAME OF M/S CORAL INFRASTRUCTURE P LIMITED AS DIRECTED BY THE BUYER. IT IS PERTINENT TO MENTIONED THAT SHR I VIJAY MIRCHANDANI ENTERED INTO AN AGREEMENT WITH THE ASSESSEE ON BEHA LF OF HIS FIRM M/S GLOBAL DEVELOPERS AND FINALLY REGISTRY WAS ALSO EXE CUTED WITH SHRI VIJAY MIRCHANDANI AS A DIRECTOR OF M/S CORAL INFRAS TRUCTURE P LIMITED. THE AMOUNT AS RECEIVED BY THE ASSESSEE IN THE YEAR 2005-06 AND IN 2006-07 WAS ADJUSTED IN THE REGISTRY AS EXECUTED. 1.5] THAT IN VIEW OF THE ABOVE FACTS, THE PR CIT WA S NOT JUSTIFIED IN ADOPTING THE GUIDELINE AS APPLICABLE IN THE YEAR IN WHICH FINAL REGISTRY WAS EXECUTED. 1.6] THE LD PR CIT REJECTED THE SUBMISSION MERELY F OR THE REASON THAT SALE AGREEMENT WAS EXECUTED BY THE ASSESSEE WITH AN OTHER FIRM AND REGISTRY WAS EXECUTED IN THE NAME OF ANOTHER FIRM. THE LD PR CIT FAILED TO APPRECIATE THAT IN THE SALE AGREEMENT ITSELF IN PARA 5 ON INNER PAGE NO 6 [ PAGE NO 8 OF THE COMPILATION] IT WAS STATED THAT THE SELLER IS BOUND TO EXECUTE REGISTRY IN THE NAME OF BUYER OR I N THE NAME OF ANY OTHER PERSON AS INSTRUCTED BY THE BUYER. HENCE, CON CLUSION AS DRAWN BY THE LD PR CIT WAS NEITHER LEGAL NOR PROPER. 1.7.1] THAT IN THE FOLLOWING DECISIONS IT WAS HELD THAT THE DATE OF AGREEMENT OF SALE IS TO BE CONSIDERED FOR DETERMINA TION OF VALUE AS PER SECTION 50C OF THE INCOME TAX ACT: S.NO CITATION REFERENCE 1 ACIT VS M/S BALMER LAWRIE VAN LEER LTD ITA NO 4361/MUM/2016 DT 20-11-2018 FOR THE ASST YEAR 2010-11 2 RAJARAM PATIDAR ITA NO 371/ IND/ 2015DT 28- 09-2018 FOR THE ASST YEAR SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 26 2010-11 3 DCIT VS VENKAT REDDY (2013) 57 SOT 117 ( HYD BENCH ) 4 LAHIRI PROMOTERS VS ACIT ITA NO 12/VIZAG/ 2009 DT 22- 06-2010 5 SANJEEV LAL & ANR VS CIT & ANR (2014) 365 ITR 389 (SC) 6 SHRI MOHD IMRAN BAIG, HYDERABAD & OTHERS ITA NOS 1942-1954/ HYD/ 2014 DT 27-11-2015 7 BHARATHI DEV ANANDANIVS ACIT ITA NO 882/ BANG/ 2014 DT 12-02-2016 8 CIT VS SHIMBHU MEHRA ITA NO 373 OF 2010 DT 12-10- 2015 [ 236 TAXMAN 561(ALL) 9 ITO VS MODIPON LTD 168 TTJ 480 ( DEL) 10 HARI MOHAN DAS TANDON (HUF) VS PCIT 169 ITD 639 ( ALL) 11 KUNDABEN AMBHAI SHAH V. ITO ITA NO 3354/ AHD/ 2014 DT 30-11-2017 12 DHARAMHI BHAI SONANI V.ACIT 161 ITD 627 [ AHD ] 1.8.2] HONBLE ITAT, INDORE BENCH IN THE CASE OF SH RI RAJA RAM PATIDAR VS ITO 1(2), BHOPAL [APPEAL NO ITA NO 371/IND/ 2015 DT 28-09-2018 FOR THE ASST YEAR 2010-11] HAS HELD THAT: WE THEREFORE ALLOW THIS ISSUE IN FAVOUR OF THE AS SESSEE AND DIRECT THE REVENUE AUTHORITIES TO CALCULATE THE LONG TERM CAPI TAL GAIN BY TAKING THE SALE CONSIDERATION OF IMPUGNED AGRICULTURE LAND AT RS.1,68,90,500/- AS AGAINST THE SALE CONSIDERATION CONFIRMED BY THE LD.CIT(A) AT RS.3,83,79,019/-. ACCORDINGLY ISSUE N O. 1 & 2 MENTIONED BY US IN PARA 11 ABOVE WHICH ARE AT GROUND NO.1, 1. 1, 1.2 AND 1.3 ARE DECIDED IN FAVOUR OF THE ASSESSEE. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 27 1.8.3] THAT HONBLE ALLAHABAD HIGH COURT IN THE CAS E OF CIT V. SHIMBHUMEHRA AS REPORTED IN [2016] 65 TAXMANN.COM 1 42 (ALLAHABAD) HAS HELD THAT:- 12. SUB-CLAUSE (II) OF SECTION 2(47) OF THE ACT STA TES THAT THE TRANSFER, IN RELATION TO A CAPITAL ASSET, INCLUDES THE EXTINGUIS HMENT OF ANY RIGHTS THEREIN. IN SANJEEVLAL V. CIT [2014] 365 ITR 389/22 5 TAXMAN 239/46 TAXMANN.COM 300 (SC), THE SUPREME COURT CONS IDERED THE QUESTION AS TO WHETHER THE DATE ON WHICH THE AGREEM ENT FOR SALE WAS EXECUTED COULD BE CONSIDERED THE DATE ON WHICH THE PROPERTY WAS TRANSFERRED. THE SUPREME COURT HELD THAT WHEN AN AG REEMENT TO SELL IN RESPECT OF IMMOVABLE PROPERTY IS EXECUTED, A RIGHT IN PERSON AM IS CREATED IN FAVOUR OF THE VENDEE AND WHEN SUCH A RIG HT IS CREATED IN FAVOUR OF THE VENDEE, THE VENDOR IS RESTRAINED FROM SELLING THE SAID PROPERTY TO SOMEONE ELSE BECAUSE THE VENDEE GETS A LEGITIMATE RIGHT TO ENFORCE A SPECIFIC PERFORMANCE OF THE AGREEMENT. TH E SUPREME COURT, WHILE CONSIDERING THE PROVISIONS OF SECTION 2 (47) (II) OF THE ACT HELD THAT IF A RIGHT IN RESPECT OF ANY CAPITAL ASSET IS EXTINGUISHED AND THAT RIGHT IS TRANSFERRED TO SOMEONE ELSE, IT WOULD AMOU NT TO TRANSFER OF A CAPITAL ASSET. THE SUPREME COURT HELD THAT ONCE AN AGREEMENT TO SELL IS EXECUTED IN FAVOUR OF SOME PERSON, THE SAID PERSON GETS A RIGHT TO GET THE PROPERTY TRANSFERRED IN HIS FAVOUR AND, CONSEQU ENTLY, SOME RIGHT OF THE VENDOR IS EXTINGUISHED. 13. EXPLANATION 2 TO SECTION 2(47) OF THE ACT WAS A DDED BY FINANCE ACT, 2012 WITH RETROSPECTIVE EFFECT ON 1.4.1962 AND , CONSEQUENTLY, THE SAID PROVISION WOULD BE APPLICABLE. THE SAID EXPLAN ATION CLEARLY PROVIDES THAT TRANSFER OF AN ASSET INCLUDES DISPOSI NG OF OR PARTING WITH AN ASSET BY WAY OF AN AGREEMENT. 14. IN THE LIGHT OF THE AFORESAID PROVISION, IT IS APPARENTLY CLEAR THAT THE MOMENT AN AGREEMENT TO SELL IS EXECUTED BETWEEN THE PARTIES AND PART SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 28 CONSIDERATION IS RECEIVED, THE TRANSFER FOR THE PUR POSE OF SECTION 50C OF THE ACT TAKES PLACES AND COMPUTATION UNDER SECTION 48 OF THE ACT WILL START ACCORDINGLY, FOR THE PURPOSE OF CALCULATING T HE CAPITAL GAINS UNDER SECTION 45 OF THE ACT. FROM THE AFORESAID, IT IS AP PARENTLY CLEAR THAT THE TRANSFER OF THE PROPERTY TOOK PLACE IN THE YEAR 200 1 WHEN THE PROVISION OF SECTION 50C OF THE ACT WAS NOT IN EXISTENCE. CON SEQUENTLY, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE R EASSESSMENT AND COMPUTING THE CAPITAL GAINS BY INVOKING THE PROVISI ON OF SECTION 50C OF THE ACT, WHICH WAS CLEARLY NOT APPLICABLE IN THE AS SESSEES' CASE. 15. CONSEQUENTLY, FOR THE REASONS STATED AFORESAID, THE APPEALS FAIL AND ARE DISMISSED. THE QUESTION OF LAW IS ANSWERED IN FAVOUR OF THE ASSESSEES AND AGAINST THE DEPARTMENT. [ EMPHASIS SUPPLIED] 1.9.1] THAT AS PER FIRST AND SECOND PROVISO TO SECT ION 50C(1) OF THE INCOME TAX ACT AS INSERTED AS INSERTED BY THE FINAN CE ACT, 2016 W.E.F 01-04-2017 READ AS UNDER: PROVIDED THAT WHERE THE DATE OF THE AGREEMENT FIXIN G THE AMOUNT OF CONSIDERATION AND THE DATE OF REGISTRATION FOR THE TRANSFER OF THE CAPITAL ASSET ARE NOT THE SAME, THE VALUE ADOPTED OR ASSESS ED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY ON THE DATE OF AGR EEMENT MAY BE TAKEN FOR THE PURPOSES OF COMPUTING FULL VALUE OF C ONSIDERATION FOR SUCH TRANSFER: PROVIDED FURTHER THAT THE FIRST PROVISO SHALL APPLY ONLY IN A CASE WHERE THE AMOUNT OF CONSIDERATION, OR A PART THEREOF, HAS BEEN RECEIVED BY WAY OF AN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE BAN K DRAFT OR BY USE OF ELECTRONIC CLEARING SYSTEM THROUGH A BANK AC COUNT 59 [OR THROUGH SUCH OTHER ELECTRONIC MODE AS MAY BE PRESCRIBED], O N OR BEFORE THE DATE OF THE AGREEMENT FOR TRANSFER: SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 29 1.9.2] THAT THOUGH THE FIRST AND SECOND PROVISO TO SECTION 50C(1) OF THE INCOME TAX ACT WAS INSERTED W.E.F 01-04-2017 BUT TH ESE PROVISO WAS INSERTED TO EXPLAIN DATE OF VALUATION AS APPLICABLE AS ON THE DATE OF AGREEMENT AND NOT ON THE DATE ON WHICH REGISTRY WAS ACTUALLY EXECUTED. HENCE, BOTH THESE PROVISO HAVING RETROSPE CTIVE EFFECT FROM THE DATE ON WHICH PROVISION OF SECTION 50C OF THE I NCOME TAX ACT INSERTED IN THE ACT I.E. W.E.F 01-04-2003. SIMILAR VIEW WAS EXPRESSED IN THE FOLLOWING DECISIONS:- S.NO CITATION REFERENCE 1 MS ZUBEIDASHAHANSHAH ITA NO 519/ LKW/2017 DT 31-01-2019 2 DHARMSHIBHISONANIVS ACIT, SURAT [2016] 75 TAXMANN.COM 141 [ AHMEDABAD BENCH ] 161 ITD 627 (AHD ) 3 HARI MOHAN DAS TANDON (HUF) 169 ITD 639 (ALL) 4 M/S JAI LAXMI DEVELOPERS (P) LTD VS DCIT ITA NO 5578/ DEL/ 2014 DT 5 SMTKUNDANBENAMBHAI SHAH V. ITO ITA NO 3354/ AHD/ 2014 DT 30-11-2017 1.9.3.1] HONBLELUCKNOW BENCH OF ITAT IN THE CASE O F MS. ZUBEIDA SHAHANSHAH[ APPEAL NO ITA NO 519/ LKW/ 2017 DT 31-0 1-2019 ] HAS HELD THAT: 4.2 IN VIEW OF THE ABOVE FACTS AND JUDICIAL PRECE DENTS, WE HOLD THAT THE AMENDMENT TO SECTION 50C BY THE FINANCE ACT 201 6 HAS TO BE APPLIED RETROSPECTIVELY AS THE AMENDMENT IS CURATIV E IN NATURE THEREFORE, COLLECTORS RATE PREVALENT AT THE TIME O F ENTERING AGREEMENT HAS TO BE TAKEN AS DEEMED CONSIDERATION. THEREFORE , GROUND NO. 2 IS DISMISSED. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 30 1.9.3.2] THAT HONBLE AHMEDABAD BENCH OF ITAT IN TH E CASE OF DHARAMSHI BHAI SONANI[ ITA NO 1237/ AHD/ 2013 DT 30 -09-2016] HAS HELD THAT: [9] SO FAR AS THE AMENDMENT TO SECTION 50C BEING RE TROSPECTIVE IN EFFECT IS CONCERNED, THERE IS NO DOUBT ABOUT THE LEGAL POS ITION. I HOLD THE PROVISOS TO SECTION 50C BEING EFFECTIVE FROM 1 ST APRIL 2003. THIS IS PRECISELY WHAT THE LEARNED COUNSEL HAS PRAYED FOR. IN HIS DETAILED WRITTEN SUBMISSIONS, HE HAS MADE OUT OF A STRONG CA SE FOR THE AMENDMENT TO SECTION 50C BEING TREATED AS RETROSPEC TIVE AND WITH EFFECT FROM 1 ST APRIL 2003. THE PLEA OF THE ASSESSEE IS INDEED WEL L TAKEN AND DESERVES ACCEPTANCE. 1.10] THAT IN VIEW OF THE ABOVE SETTLED POSITION OF LAW, THE ASSESSEE HAD SOLD HIS AGRICULTURAL LAND AT RS 54,27,000/- PE R HECTARE MORE SO WHEN THE GUIDELINE RATE WAS OF RS 34,00,000/- PER H ECTARE. HENCE, THE LD PR CIT WAS NOT JUSTIFIED IN DIRECTING TO ADOPT T HE HIGHER RATE AS APPLICABLE AS ON THE DATE OF REGISTRY OF LAND. AS REGARDS DEDUCTION U/S 54B OF THE ACT 2.1] THE LD PR CIT VIDE HIS ORDER DT 15-03-2018 HAS DENIED THE CLAIM OF DEDUCTION UNDER SECTION 54B OF THE INCOME TAX ACT M ERELY FOR THE REASON THAT THE PAYMENT TOWARDS PURCHASE OF LAND WA S MADE BY THE ASSESSEE PRIOR TO THE EXECUTION OF THE SALE DEED BU T IN CASE OF DEDUCTION UNDER SECTION 54B OF THE ACT, AMOUNT PAID AFTER THE DATE OF REGISTRY IS ONLY ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 54B OF THE ACT. 2.2] THAT IN THE PRESENT CASE IN HAND THE APPELLANT ENTERED INTO AN AGREEMENT FOR SALE OF AGRICULTURAL LAND ON 31-03-20 06 BUT FINAL REGISTRY WAS EXECUTED ON 11-04-2008. THE ASSESSEE HAD CLAIME D DEDUCTION UNDER SECTION 54B OF THE ACT IN RESPECT OF AGRICULT URAL LAND AS PURCHASED BY THE ASSESSEE BY MAKING THE PAYMENT ON THE VARIOUS DATES AS REFERRED BY THE LDPR CIT SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 31 2.3] COPY OF BANK ACCOUNT OF THE ASSESSEE IS ALREAD Y ON RECORD. ON PERUSAL OF THE SAME IT IS CLEAR THAT ENTIRE CREDIT REPRESENT SALE CONSIDERATION AS RECEIVED BY THE APPELLANT AGAINST THE SALE OF AGRICULTURAL LAND. 2.4] THAT IN THE PRESENT CASE IN HAND, THE AGREEMEN T FOR SALE OF AGRICULTURAL LAND OF THE ASSESSEE WAS EXECUTED ON 3 1-03-2006 AND THE ASSESSEE RECEIVED AMOUNT TOWARDS SALE CONSIDERATION FROM THE YEAR 2005-06 TO TILL THE DATE ON WHICH REGISTRY WAS ACTU ALLY EXECUTED. 2.5] THE AMOUNT AS PAID BY THE ASSESSEE WAS ACTUALL Y REALIZED BY HIM AGAINST THE SALE OF HIS AGRICULTURAL LAND. THE AMOU NT SO REALIZED WAS UTILIZED BY THE ASSESSEE TOWARDS PURCHASE OF NEW AG RICULTURAL LAND. HENCE, DEDUCTION AS CLAIMED UNDER SECTION 54B OF TH E ACT WAS LEGAL AND PROPER. 2.6] THE APPELLANT FIRST ENTERED INTO AN AGREEMENT FOR SALE OF AGRICULTURAL LAND ON 31-03-2006 AND IN PURSUANCE TO THAT SALE AGREEMENT, REGISTRY WAS EXECUTED ON 11-04-2018. THE CONSIDERATION AS RECEIVED BY THE APPELLANT WAS UTILIZED TOWARDS PURC HASE OF NEW AGRICULTURAL LAND. HENCE, THE LD ASSESSING OFFICER RIGHTLY ALLOWED DEDUCTION UNDER SECTION 54B OF THE INCOME TAX ACT. 2.7] THAT HONBLE JAIPUR BENCH OF ITAT IN THE CASE OF SMTRUKMANI DEVI AGRAWALVS ITO [ APPEAL NO ITA NO 557/ JP/ 2018 DT 18-09-2018 FOR THE ASST YEAR 2013-14 ] HAD AN OCCASION TO DISC USS THE SIMILAR ISSUE AND HELD THAT [ REFER PARA 6.2 OF THE ORDER ] : 6.2 THE REQUIREMENT FOR AVAILING THE BENEFIT OF SE CTION 54B IS TO USE THE CAPITAL GAIN FOR PURCHASE OF NEW AGRICULTURAL L AND AND IF THE ASSESSEE DOES NOT RECEIVE THE SALE CONSIDERATION TH EN THE QUESTION OF PURCHASING NEW AGRICULTURAL LAND DOES NOT ARISE AND THE VERY OBJECT OF SECTION 54B OF THE ACT WOULD BE DEFEATED. HENCE THE RECEIPT OF COMPENSATION AND PAYMENT OF CONSIDERATION FOR PURCH ASE OF NEW ASSET SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 32 ARE THE RELEVANT DATES FOR DETERMINING THE CONDITIO NS OF SECTION 54B OF THE ACT ARE SATISFIED. IN THE CASE IN HAND, WHEN TH E ASSESSEE HAS RECEIVED THE COMPENSATION PRIOR TO THE PAYMENT OF T HE PURCHASE CONSIDERATION FOR ACQUISITION OF NEW AGRICULTURAL L AND THEN THE TRANSACTION HAS TO BE LOOKED INTO IN THE OVERALL FA CTS AND SURROUNDING CIRCUMSTANCES IN WHICH THE ASSESSEE SOLD EXISTING A GRICULTURAL LAND AND PURCHASED NEW AGRICULTURAL LAND. IF THE INTENT OF THE ASSESSEE IS MANIFEST FROM THE FACTS AND CIRCUMSTANCES THAT THE ASSESSEE PURCHASED THE FRESH AGRICULTURAL LAND IN LIEU OF TH E EXISTING AGRICULTURAL LAND THEN THE CONDITIONS AS ENVISAGED IN SECTION 54 B OF THE ACT ARE SATISFIED. WE HAVE ALREADY DISCUSSED THE FACTS THAT THE ASSESSEE RECEIVED THE PURCHASE CONSIDERATION THROUGH POST DA TEDCHEQUES WHICH WERE ENCASHED IN PART PRIOR TO THE PAYMENT OF THE P URCHASE CONSIDERATION THROUGH POST DATEDCHEQUES. AS DISCUSS ED ABOVE, BOTH THE RECEIPTS OF SALE CONSIDERATION AND PURCHASE CON SIDERATION ARE THROUGH POST DATEDCHEQUES AS EVIDENT FROM THE RECOR D AND NONE OF THE CHEQUES WAS ENCASHED ON THE DATE OF EXECUTION OF IT A 557/JP/2018_ RUKMANI DEVI AGARWALVS ITO 14 THE SALE DEED BUT THE RECEIPT OF SALE CONSIDERATION IS AFTER THE AGREEMENT TO SELL DATED 22/11/2012 AND MUCH PRIOR TO THE SALE DEED DATED 28/01/2013 WHEREA S THE ENTIRE PURCHASE CONSIDERATION WAS PAID OUT FROM THE BANK A CCOUNT OF THE ASSESSEE ONLY AFTER THE SALE DEED DATED 29/11/2012. THESE FACTS CLEARLY ESTABLISHED THAT THE RECEIPT AS WELL AS PAY MENT ARE THROUGH POST DATEDCHEQUES AND THEREFORE, THE ASSESSEE HAS E STABLISHED THE EXISTENCE OF THE AGREEMENT TO SELL DATED 22/11/2012 UNDER WHICH THE PURCHASE CONSIDERATION WAS RECEIVED BY THE ASSESSEE . THE SUBSEQUENT DOCUMENTS CONSIST OF CORRECTION DEED AS WELL AS THE AFFIDAVIT OF THE PURCHASER HAS SUPPORTED THE FACT THAT THE CONSIDERA TION FOR SALE OF THE EXISTING LAND WAS RECEIVED AT THE TIME OF THE AGREE MENT TO SELL DATED 22/11/2012 AND POSSESSION WAS ALSO HANDED OVER ON T HE SAID DATE OF SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 33 AGREEMENT. HENCE WHEN THE AGREEMENT WAS SUBSEQUENTL Y ACTED UPON AND IN PERFORMANCE OF THE SAID AGREEMENT, THE PARTI ES HAVE FINALLY EXECUTED THE SALE DEED THEN THE TRANSACTION WILL BE CONSIDERED AS TRANSFERRED AS ON THE DATE OF THE AGREEMENT. 2.8] THAT IN VIEW OF THE ABOVE, THE LD PR CIT WAS N OT JUSTIFIED IN SETTING ASIDE THE ORDER AS PASSED BY THE ASSESSING OFFICER. AS REGARDS DEDUCTION U/S 54F OF THE ACT 3.1] THE APPELLANT HAD ALSO CLAIMED A DEDUCTION OF RS. 1736091 FOR CONSTRUCTION OF RESIDENTIAL HOUSE FROM THE SALE PRO CEEDS OF THE SALE OF IMPUGNED IMMOVABLE PROPERTY. THE CLAIM FOR DEDUCTIO N WAS ALLOWED BY THE LEARNED AO BASED ON VARIOUS DOCUMENTARY EVID ENCES AND SUBMISSIONS OF THE APPELLANT SUCH AS AFFIDAVIT IN S UPPORT OF CONSTRUCTION OF NEW HOUSE, WITHDRAWAL OF AMOUNT FRO M BANK FOR CONSTRUCTION ACTIVITY, PHYSICAL EXISTENCE OF NEW RE SIDENTIAL HOUSE WHICH WAS ALSO CONFIRMED BY THE VALUATION REPORT BY CHARTERED ENGINEER. FURTHER AS DESIRED BY THE LEARNED AO THE VALUATION OF THE RESIDENTIAL HOUSE WAS ALSO OBTAINED AND SUBMITTED T O THE LEARNED AO WHICH WAS FOUND TO BE MUCH HIGHER THAN THE DEDUCTIO N CLAIMED. ALSO THE CONSTRUCTION OF NEW HOUSE HAS NOT BEEN DOUBTED BY ANY OF THE AUTHORITY. BASED ON SUCH EVIDENCES AND ENQUIRIES MA DE THE AO WAS SATISFIED ABOUT THE CONSTRUCTION OF THE NEW RESIDEN TIAL HOUSE AND THE FACT THAT THE CLAIM WAS COMMENSURATE TO THE CONSTRU CTION COST INCURRED AND AMOUNT WITHDRAWN FROM BANK ACCOUNT FOR PAYMENT OF CONSTRUCTION COST DURING SUCH PERIOD. ACCORDINGLY THE LEARNED AO ALLOWED THE CLAIM OF DEDUCTION. 3.2] THE PCIT RAISED THE ISSUE THAT THE VALUATION R EPORT IS DATED 22-03- 2016 AND THEREFORE THE HOWEVER THE CONSTRUCTION WAS DONE IN 2008. BASED ON THIS ISOLATED FACT THE PCIT OBSERVED THAT THE CLAIM OF DEDUCTION HAS BEEN ALLOWED ERRONEOUSLY BY THE LD. A O. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 34 3.3] IN THIS REGARDS IT IS SUBMITTED THAT THE SATIS FACTION OF AO TO ALLOW THE DEDUCTION U/S54F OF THE ACT FOR CONSTRUCTION OF NEW RESIDENTIAL HOUSE PROPERTY WAS NOT MERELY BASED ON VALUATION RE PORT WHICH WAS IN FACT SUBMITTED AT THE INSISTENCE OF THE LEARNED AO TO VERIFY THE PHYSICAL EXISTENCE OF THE PROPERTY AND THE OVERALL VALUE OF INVESTMENT MADE. THE LEARNED AO SATISFIED HIMSELF ABOUT THE DE DUCTION UNDER SECTION 54F OF THE ACT BASED ON VERIFICATION OF PHY SICAL EXISTENCE OF NEW PROPERTY, AFFIDAVIT OF THE ASSESSEE IN RESPECT OF SUCH CONSTRUCTION OF NEW RESIDENTIAL HOUSE, ENQUIRIES MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, PAYMENT MADE FOR CONSTRUCTI ON OF HOUSE WHICH WAS CORRESPONDINGLY WITHDRAWN FROM BANK DURIN G THE RELEVANT PERIOD AND VARIOUS OTHER FACTS SUBSTANTIATING THE C LAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT. SINCE THE DEDUCTION U /S 54F WAS NOT ALLOWED MERELY ON THE BASIS OF VALUATION REPORT WHI CH WAS INFACT OBTAINED ON THE INSISTENCE OF THE AO DURING THE ASS ESSMENT PROCEEDINGS AND ESPECIALLY THE FACT THAT THE AMOUNT OF DEDUCTION IS CONSIDERABLY LOWER THAN THE VALUE REPORTED BY THE C HARTERED ENGINEER IN 2016 IT IS ESTABLISHED THAT THE ACTION OF AO WAS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGLY IT IS PRAYED THAT THE REVISION ACTION O N THIS ISSUE DESERVES TO BE QUASHED. LEGAL SUBMISSIONS ON S.263 4.1] THE ASSESSMENT ORDER AS PASSED BY THE ASSESSIN G OFFICER WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST O F REVENUE. HENCE, THE LD PR CIT WAS NOT JUSTIFIED IN SETTING ASIDE THE OR DER AS PASSED BY THE ASSESSING OFFICER. 4.2] THAT IN THIS CASE ORIGINALLY NOTICE UNDER SECT ION 148 OF THE INCOME TAX ACT WAS ISSUED TO TAXED THE FAIR MARKET VALUE O F SALE OF IMMOVABLE PROPERTIES AS PER PROVISION OF SECTION 50C OF THE I NCOME TAX ACT. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 35 WE HAVE ALREADY REPLY THIS POINT IN OUR PREVIOUS RE PLY AS PER THIS LAND WHICH IS MATTER OF SCRUTINY IS SOLD AS PER AGREEMEN T BASIS WHICH IS MADE ON 31.03.2016. WE HAVE ALSO PRODUCE COPY OF AG REEMENT OF SALE IS MADE BY RS.99,26,000/- WITH SHRI BADRILAL MUKATI AND ALL PAYMENT OF THIS TRANSACTION HAS BEEN RECEIVED THROUGH CHEQU ES, THEREFORE WE HAVE BEEN CALCULATED OUR CAPITAL GAIN ON ACTUAL SAL ES RECEIPT BASIS AND DOCUMENTARY EVIDENCES ALREADY SUBMITTED BEFORE YOU FOR PERUSAL.. FURTHER EXPENSES ON SALE WE CLAIM FOR IS PAYMENT OF BROKERAGE AS PER USUAL MARKET TREND, WE HAVE BEEN PAID BROKERAGE TO BROKER AND COPY OF SAUDACHITTI DATED 20.03.2006 IS ATTACHING HEREWI TH FOR YOUR PERUSAL. WE HAVE BEEN CALCULATED COST OF PROPERTY R S.60,53,614/- ON THE BASIS OF INDEX VALUE FROM THE FY 1980-81, BECA USE THIS IS OUR ANCESTRAL PROPERTY WHICH IS RECEIVED US FROM OUR FO RE-PARENTS, HENCE WE CONSIDERED MARKET VALUE OF AGRICULTURE LAND WHIC H AROUND KABIRKHEDI IN 1980-81 WAS AROUND 1,50,000/- PAR BIG HA IN 1980-81, AS PER YOUR REQUIREMENT WE HAVE BEEN TAKEN COST OF REGISTRAR OFFICE AND AS PER INDEX COST VALUE WERE CALCULATE ABOUT 92 ,000/- PER BIGHA, HERE WE ARE REQUESTING YOU TO CONSIDER VALUE OF RS. 1,50,000/- PER BIGHA BECAUSE LAND WHICH IS SUBJECTED TO SCRUTINY I S CLOSE TO INDORE CITY AS COMPARED LAND OF SHRISARABDINN S/O SARJUJI WHICH WAS MENTIONED IN INDEX, FURTHER VALUE OF LAND WHICH IS SUBJECT MATTER IS A IRRIGATED AGRICULTURE LAND WHICH IS REFLECTING FROM REGISTRY DOCUMENTS ITSELF. WE ARE CLAIMING DEDUCTION OF SECTION 54 FOR RESIDENTIAL HOUSE PROPERTY WHICH WE HAVE BEEN CONSTRUCTED FOR USE OF OUR RESIDENT OUT OF CONSIDERATION RECEIVED FROM SALE OF LAND, BEING ASS ESSEE IS A AGRICULTURIST AND NOT HAVING AWARENESS AND UNDERSTA NDING OF THE LAW AND ALSO USUALLY RURAL RESIDENT NEITHER COLLECTING BILL ETC. NOR KEEPING ANY RECORDS, HENCE WE ARE NOR HAVING BILL OF ANY MA TERIAL ETC. WHICH IS USE IN CONSTRUCTION, PLOT OF LAND ON WHICH WE HAVE CONSTRUCTED OUR HOUSE PROPERTY WHICH ALSO OUR ANCESTRAL LAND AND WE HAVE NOT CLAIM SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 36 ANY AMOUNT IN REGARD TO LAND IN OUR DEDUCTION CLAIM , FOR PROOF OF OWNERSHIP WE ARE PRODUCING HEREWITH COPY OF ELECTRI CITY BILL/ BHURINPUSTIKA FOR YOUR PERUSAL. WE HAVE BEEN COMMIT TED COST OF CONSTRUCTION OF THIS HOUSE IS RS. 30,00,000/- WHAT WE ARE CLAIM FOR DEDUCTION AND ALSO CLAIMED DEDUCTION 54B FOR PURCHA SE LAND FOR AGRICULTURE ACTIVITY OF RS. 33,45,350/-. 4.4] THAT IN VIEW OF THE ABOVE, THE ASSESSING OF FICER HAS DULY EXAMINED THE ISSUE OF TAXABILITY OF SALES AS PER PR OVISION OF SECTION 50C OF THE ACT. THE SALE VALUE AS OFFERED BY THE AS SESSEE AS PER SALE AGREEMENT WAS HIGHER THAN THE GUIDELINE AS PRE VAILED AS ON THE DATE OFF EXECUTION OF SALE AGREEMENT. HENCE, TH E ORDER AS PASSED BY THE LD ASSESSING OFFICER WAS NEITHER ERRO NEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. SINCE, THE SAME WAS PASSED AFTER DUE CONSIDERATION OF THE PROVISION AS PREVAIL ED AS ON THE DATE OF PASSING OF THE ASSESSMENT ORDER. THUS, THE RE-AS SESSMENT ORDER AS PASSED BY THE ASSESSING OFFICER WAS AFTER DUE AP PLICATION OF MIND AND AFTER CONSIDERING THE LAW PREVAIL AS ON TH E DATE OF PASSING OF THE ORDER. 11. PER CONTRA LD. DR VEHEMENTLY ARGUED SUPPORTING THE ORDERS OF LD. PR. CIT, CONTENDING THAT THE LD. PR. CIT HAS RIGHTLY ASSUMED THE JURISDICTION U/S 263 OF THE ACT AND SET ASIDE THE ASSESSMENT ORDERS FRAMED U/S 147 R.W.S. 143(3) OF T HE ACT TO BE FRAMED A FRESH IN LIGHT OF OBSERVATIONS MADE IN THE IMPUGNED ORDER. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 37 12. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE PAP ER BOOK AND WRITTEN SYNOPSIS FILED IN THE CASE OF ALL THE ASSES SEES IN THE INSTANT APPEALS, IMPUGNED ORDERS BY THE LD. PR. CIT , ASSESSMENT ORDERS FRAMED U/S 147 R.W. 143(3) OF THE ACT AND VA RIOUS DOCUMENTARY EVIDENCES FILED DURING THE COURSE OF RE ASSESSMENT PROCEEDINGS, PROCEEDINGS U/S 263 OF THE ACT AND THE DOCUMENTS FILED BEFORE US. COMMON GRIEVANCE IN ALL THESE APPE ALS MADE BY THE ASSESSEE IS THAT LD. PR. CIT ERRED IN ASSUMING JURISDICTION U/S 263 OF THE ACT, USING THE REVISIONARY POWERS AN D ALSO ERRED IN HOLDING THAT THE ORDERS OF LD. AO FRAMED U/S 143 (3) R.W.S. 147 OF THE ACT ARE ERRONEOUS AND SO FAR AS PREJUDIC IAL TO THE INTEREST OF REVENUE. 13. BEFORE GOING INTO FACTS OF THE CASE WE WILL LIK E TO GO THROUGH PROVISIONS OF SECTION 263 OF THE ACT AND SOME SETTL ED JUDICIAL PRECEDENCE. SECTION 263: ' 263. REVISION OF ORDERS PREJUDICIAL TO REVENUE.--(1 ) THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDI NG UNDER THIS ACT, SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 38 AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN B Y THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPOR TUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH I NQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIR CUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIF YING THE ASSESSMENT, OR CANCELLING THE ASSESSMENT AND DIRECT ING A FRESH ASSESSMENT. EXPLANATION.--FOR THE REMOVAL OF DOUBTS , IT IS HEREBY DECLARED THAT, FOR THE PURPOSES OF THIS SUB-SECTION ,-- (A) AN ORDER PASSED ON OR BEFORE OR AFTER THE 1ST D AY OF JUNE, 1988 BY THE ASSESSING OFFICER SHALL INCLUDE-- (I) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT CO MMISSIONER OR DEPUTY COMMISSIONER OR THE INCOME TAX OFFICER ON TH E BASIS OF THE DIRECTIONS ISSUED BY THE JOINT COMMISSIONER UNDER SECTION 144-A ; (II) AN ORDER MADE BY THE JOINT COMMISSIONER IN EXE RCISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESS ING OFFICER CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTI ONS ISSUED BY THE BOARD OR BY THE CHIEF COMMISSIONER OR DIRECTOR GENE RAL OR COMMISSIONER AUTHORISED BY THE BOARD IN THIS BEHALF UNDER SECTION 120 ; (B) 'RECORD' SHALL INCLUDE AND SHALL BE DEEMED ALWA YS TO HAVE INCLUDED ALL RECORDS RELATING TO ANY PROCEEDING UNDER THIS A CT AVAILABLE AT THE TIME OF EXAMINATION BY THE COMMISSIONER; (C) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECTION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT-MATTER OF AN Y APPEAL FILED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988, THE POWE RS OF THE COMMISSIONER UNDER THIS SUB- SECTION SHALL EXTEND A ND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO SUCH MATTERS AS H AD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 39 (2) NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) AF TER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH T HE ORDER SOUGHT TO BE REVISED WAS PASSED. (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ON (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY TI ME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CONSEQUENCE OF, O R TO GIVE EFFECT TO, ANY FINDING OR DIRECTION CONTAINED IN AN ORDER OF T HE APPELLATE TRIBUNAL, NATIONAL TAX TRIBUNAL, THE HIGH COURT OR THE SUPREM E COURT. EXPLANATION.--IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB-SECTION (2), THE TIME TAKEN IN GIVING AN OPPORT UNITY TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEEDING UNDER THIS SECTION IS STAYED B Y AN ORDER OR INJUNCTION OF ANY COURT SHALL BE EXCLUDED.' 14. HON'BLE COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) HAS LAID DOWN FOLLOWING RATIO WITH REGARD TO PROVISIONS OF SECTION 263 OF THE ACT: THERE CAN BE NO DOUBT THAT THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED B Y THE ASSESSING OFFICER; IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN I NCORRECT APPLICATION OF LAW WILLSATISFY THE REQUIREMENT OF THE ORDER BEI NG ERRONEOUS. IN THE SAME CATEGORY FALL ORDERS PASSED WITHOUT APPLYING T HE PRINCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND. THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE REV ENUE 'HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE A SSESSING OFFICER. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 40 EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN ITO ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHER E TWO VIEWS ARE POSSIBLE AND THE ITO HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOU S ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAK EN BY THE ITO IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY THIS COUR T THAT WHERE A SUM NOT EARNED BY A PERSON IS ASSESSED AS INCOME IN HIS HANDS ON HIS SO OFFERING, THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO THE IN TERESTS OF THE REVENUE - RAMPYARI DEVI SARAOGI V. CIT [1968167ITR 84 (SC) AND IN SMT. TARA DEVI AGGARWAL V. CIT [1973] 88 ITR 323 (S C). [ EMPHASIS SUPPLIED ] 15. HONBLE APEX COURT IN THE CASE OF CIT VS MAX INDIA LIMITED AS REPORTED IN 295 ITR 0282 HAS HELD THAT: 2. AT THIS STAGE WE MAY CLARIFY THAT UNDER PARA 10 OF THE JUDGMENT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. (SUPRA) THI S COURT HAS TAKEN THE VIEW THAT THE PHRASE 'PREJUDICIAL TO THE INTEREST O F THE REVENUE' UNDER S. 263 HAS TO BE READ IN CONJUNCTION WITH THE EXPRE SSION 'ERRONEOUS' ORDER PASSED BY THE AO. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE AO CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. FOR EXAMPLE, WHEN THE ITO ADOPTED ONE OF T HE COURSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF R EVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE ITO HAS TAKEN ONE VIEW W ITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOU S ORDER PREJUDICIAL TO THE INTEREST OF THE REVENUE, UNLESS THE VIEW TAK EN BY THE ITO IS UNSUSTAINABLE IN LAW. SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 41 [ EMPHASIS SUPPLIED ] 16. HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS ASSOCIATED FOOD PRODUCTS (P) LTD AS REPORTED IN 280 ITR 0377 HAS HELD THAT: 10. IN VIEW OF THE AFORESAID PRONOUNCEMENT OF LAW A ND TAKING INTO CONSIDERATION THE LANGUAGE EMPLOYED UNDER S. 263 O F THE ACT, IT IS CLEAR AS CRYSTAL THAT BEFORE EXERCISE OF POWERS TWO REQUISITES ARE IMPERATIVE TO BE PRESENT. IN THE ABSENCE OF SUCH FO UNDATION EXERCISE OF A SUOMOTU POWER IS IMPERMISSIBLE. IT SHOULD NOT BE PR ESUMED THAT INITIATION OF POWER UNDER SUOMOTU REVISION IS MEREL Y AN ADMINISTRATIVE ACT. IT IS AN ACT OF A QUASI-JUDICIAL AUTHORITY AND BASED ON FORMATION OF AN OPINION WITH REGARD TO EXISTENCE OF ADEQUATE MAT ERIAL TO SATISFY THAT THE DECISION TAKEN BY THE AO IS ERRONEOUS AS WELL A S PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE CONCEPT OF 'PREJUDICI AL TO THE INTERESTS OF THE REVENUE' HAS TO BE CORRECTLY AND SOUNDLY UNDERS TOOD. IT PRECISELY MEANS AN ORDER WHICH HAS NOT BEEN PASSED IN CONSONA NCE WITH THE PRINCIPLES OF LAW WHICH HAS IN ULTIMATE EVENTUATE A FFECTED REALIZATION OF LAWFUL REVENUE EITHER BY THE STATE HAS NOT BEEN REALIZED OR IT HAS GONE BEYOND REALIZATION. THESE TWO BASIC INGREDIENT S HAVE TO BE SATISFIED AS SINE QUA NON FOR EXERCISE OF SUCH POWE R. ON A PERUSAL OF THE MATERIAL BROUGHT ON RECORD AND THE ORDER PASSED BY THE CIT IT IS PERCEPTIBLE THAT THE SAID AUTHORITY HAS NOT KEPT IN VIEW THE REQUIREMENT OF S. 263 OF THE ACT INASMUCH AS THE ORDER DOES NOT REFLECT ANY KIND OF SATISFACTION. AS IS MANIFEST THE SAID AUTHORITY HAS BEEN GOVERNED BY A SINGULAR FACTOR THAT THE ORDER OF THE AO IS WRONG. THAT MAY BE SO BUT THAT IS NOT ENOUGH. WHAT WAS THE SEQUITUR OR CONSEQ UENCE OF SUCH ORDER QUA PREJUDICIAL TO THE INTEREST OF THE REVENU E SHOULD HAVE BEEN FOCUSED UPON. THAT HAVING NOT BEEN DONE, IN OUR CON SIDERED OPINION, SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 42 EXERCISE OF JURISDICTION UNDER S. 263 OF THE ACT IS TOTALLY ERRONEOUS AND CANNOT WITHSTAND SCRUTINY. HENCE, THE TRIBUNAL HAS CORRECTLY UNSETTLED AND DISLODGED THE ORDER OF THE CIT. [ EMPHASIS SUPPLIED ] 17. IN THE LIGHT OF THE PROVISIONS OF SECTION 263 O F THE ACT AND A SETTLED POSITION OF LAW, POWERS U/S 263 OF THE ACT CAN BE EXERCISED BY THE PR. COMMISSIONER/COMMISSIONER ON SATISFACTION OF TWIN CONDITIONS, I.E., THE ASSESSME NT ORDER SHOULD BE ERRONEOUS AND ALSO PREJUDICIAL TO THE INTEREST O F THE REVENUE. BY 'ERRONEOUS' IS MEANT CONTRARY TO LAW. THUS, THIS POWER CANNOT BE EXERCISED UNLESS THE COMMISSIONER IS ABLE TO EST ABLISH THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THUS, WHERE THERE ARE TWO POSSIBLE VIEWS AND THE ASSESSING OFFICER HAS TAKEN ONE OF TH E POSSIBLE VIEWS, NO ACTION TO EXERCISE POWERS OF REVISION CAN ARISE, NOR CAN REVISIONAL POWER BE EXERCISED FOR DIRECTING A FULLE R ENQUIRY TO FIND OUT IF THE VIEW TAKEN IS ERRONEOUS. THIS POWER OF R EVISION CAN BE EXERCISED ONLY WHERE NO ENQUIRY, AS REQUIRED UNDER THE LAW, IS DONE. IT IS NOT OPEN TO ENQUIRE IN CASE OF INADEQUA TE INQUIRY. OUR VIEW IS FORTIFIED BY THE JUDGMENT OF HON'BLE HIGH COURT OF BOMBAY SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 43 IN THE CASE OF CIT VS. NIRAV MODI, [2016] 71 TAXMAN N.COM 272 (BOMBAY). 18. THIS VIEW IS FURTHER SUPPORTED BY THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF SHRI PRAKASH BHAG CHAND KHATRI IN TAX APPEAL NO. 177 WITH TAX APPEAL NO.178 OF 201 6, WHEREIN THE HON'BLE GUJARAT HIGH COURT WAS SEIZED WITH THE FOLLOWING SUBSTANTIAL QUESTION OF LAW:- ' WHETHER THE TRIBUNAL IS RIGHT IN LAW AND ON FACTS I N UPHOLDING THE ORDER PASSED BY THE CIT UNDER SECTION 263 OF THE ACT ON MERITS AND STILL STORING THE ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SECTION 54 OF THE ACT TO THE FILE OF ASSESSING OFFICER EVEN THOUGH THE WORKING OF ALLOWABILITY OF DEDUCTION UNDER SECTION 54F IS AVAILABLE IN THE ORDER UNDER SECTION 263 WHICH IS NOT DISPUTED BY THE ASSESSEE BEFORE ITAT.' 19. WE FIND THE HON'BLE DELHI HIGH COURT IN THE CAS E OF CIT VS. ANIL KUMAR REPORTED IN 335 ITR 83 HAS HELD THAT WHERE IT WAS DISCERNIBLE FROM RECORD THAT THE A.O HAS APPLIED HI S MIND TO THE ISSUE IN QUESTION, THE LD. CIT CANNOT INVOKE SECTION 263 OF THE ACT MERELY BECAUSE HE HAS DIFFERENT OPINION. RELEVA NT OBSERVATION OF THE HIGH COURT READS AS UNDER: SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 44 '63. WE FIND THE HON'BLE DELHI HIGH COURT IN THE CA SE OF VIKAS POLYMER REPORTED IN 341 ITR 537 HAS HELD AS UNDER: 'WE ARE THUS OF THE OPINION THAT THE PROVISIONS OF S. 263 OF THE ACT, WHEN READ AS A COMPOSITE WHOLE MAKE IT INCUMBENT UP ON THE CIT BEFORE EXERCISING REVISIONAL POWERS TO : (I) CALL F OR AND EXAMINE THE RECORD, AND (II) GIVE THE ASSESSEE AN OPPORTUNITY O F BEING HEARD AND THEREAFTER TO MAKE OR CAUSE TO BE MADE SUCH ENQUIRY AS HE DEEMS NECESSARY. IT IS ONLY ON FULFILMENT OF THESE TWIN C ONDITIONS THAT THE CIT MAY PASS AN ORDER EXERCISING HIS POWER OF REVISION. MINUTELY EXAMINED, THE PROVISIONS OF THE SECTION ENVISAGE TH AT THE CIT MAY CALL FOR THE RECORDS AND IF HE PRIMA FACIE CONSIDERS THA T ANY ORDER PASSED THEREIN BY THE AO IS ERRONEOUS INSOFAR AS IT IS PRE JUDICIAL TO THE INTEREST OF THE REVENUE, HE MAY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH ENQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY. THE TWIN REQUIREMENTS OF THE SECT ION ARE MANIFESTLY FOR A PURPOSE. MERELY BECAUSE THE CIT CONSIDERS ON EXAM INATION OF THE RECORD THAT THE ORDER HAS BEEN ERRONEOUSLY PASSED S O AS TO PREJUDICE THE INTEREST OF THE REVENUE WILL NOT SUFFICE. THE A SSESSEE MUST BE CALLED, HIS EXPLANATION SOUGHT FOR AND EXAMINED BY THE CIT AND THEREAFTER IF THE CIT STILL FEELS THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, THE CIT MAY PASS REVISIONAL ORDERS. IF, ON THE OTHER HAND, THE CIT IS SATISFIED , AFTER HEARING THE ASSESSEE, THAT THE ORDERS ARE NOT ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF THE REVENUE, HE MAY CHOOSE NOT TO EXERC ISE HIS POWER OF REVISION. THIS IS FOR THE REASON THAT IF A QUERY IS RAISED DURING THE COURSE OF SCRUTINY BY THE AO, WHICH WAS ANSWERED TO THE SATISFACTION OF THE AO, BUT NEITHER THE QUERY NOR THE ANSWER WER E REFLECTED IN THE ASSESSMENT ORDER, THIS WOULD NOT BY ITSELF LEAD TO THE CONCLUSION THAT SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 45 THE ORDER OF THE AO CALLED FOR INTERFERENCE AND REV ISION. IN THE INSTANT CASE, FOR EXAMPLE, THE CIT HAS OBSERVED IN THE ORDE R PASSED BY HIM THAT THE ASSESSEE HAS NOT FILED CERTAIN DOCUMENTS O N THE RECORD AT THE TIME OF ASSESSMENT. ASSUMING IT TO BE SO, IN OUR OP INION, THIS DOES NOT JUSTIFY THE CONCLUSION ARRIVED AT BY THE CIT THAT T HE AO HAD SHIRKED HIS RESPONSIBILITY OF EXAMINING AND INVESTIGATING THE C ASE. MORE SO, IN VIEW OF THE FACT THAT THE ASSESSEE EXPLAINED THAT THE CA PITAL INVESTMENT MADE BY THE PARTNERS, WHICH HAD BEEN CALLED INTO QU ESTION BY THE CIT WAS DULY REFLECTED IN THE RESPECTIVE ASSESSMENTS OF THE PARTNERS WHO WERE I.T. ASSESSEES AND THE UNSECURED LOAN TAKEN FR OM M/S STUTEE CHIT & FINANCE (P) LTD. WAS DULY REFLECTED IN THE A SSESSMENT ORDER OF THE SAID CHIT FUND WHICH WAS ALSO AN ASSESSEE.' 64. SINCE IN THE INSTANT CASE THE A.O AFTER CONSIDE RING THE VARIOUS SUBMISSIONS MADE BY THE ASSESSEE FROM TIME TO TIME AND HAS TAKEN A POSSIBLE VIEW, THEREFORE, MERELY BECAUSE THE DIT DO ES NOT AGREE WITH THE OPINION OF THE A.O, HE CANNOT INVOKE THE PROVIS IONS OF SECTION 263 TO SUBSTITUTE HIS OWN OPINION. IT HAS FURTHER BEEN HELD IN SEVERAL DECISIONS THAT WHEN THE A.O HAS MADE ENQUIRY TO HIS SATISFACTION AND IT IS NOT A CASE OF NO ENQUIRY AND THE DIT/CIT WANT S THAT THE CASE COULD HAVE BEEN INVESTIGATED/ PROBED IN A PARTICULA R MANNER, HE CANNOT ASSUME JURISDICTION U/S 263 OF THE ACT. IN V IEW OF THE ABOVE DISCUSSION, WE HOLD THAT THE ASSUMPTION OF JURISDIC TION BY THE DIT U/S 263 OF THE ACT IS NOT IN ACCORDANCE WITH LAW. WE, T HEREFORE, QUASH THE SAME AND GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED .' 20. NOW EXAMINING THE FACTS OF THE INSTANT CASE IN THE LIGHT OF THE ABOVE JUDGMENTS AND DISCUSSIONS MADE HEREIN ABO VE WE NOTE THAT IN THE INSTANT CASES THE AGREEMENT TO SAL E WAS SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 46 EXECUTED ON 31.03.2006 WITH MR. VIJAY MIRCHANDANI A CTING ON BEHALF OF M/S GLOBAL DEVELOPERS. ALL PAYMENTS AGAIN ST THE SALE CONSIDERATION WERE RECEIVED THROUGH BANKING CHANNEL S. SUBSEQUENTLY ON THE REQUEST OF THE ORIGINAL BUYER M /S GLOBAL DEVELOPERS AND AS PER THE CONDITIONS MENTIONED IN T HE AGREEMENT TO SALE, FINAL REGISTRY WAS DONE IN FAVOU R OF M/S. CORAL INFRASTRUCTURE (THROUGH ITS DIRECTOR MR. VIJAY MIRC HANDANI). SALE DEED WAS FINALLY REGISTERED DURING APRIL, 2008 BETW EEN THE SAME PARTIES (ASSESSEE(S) AND VIJAY MIRCHANDANI) AND THE SALE CONSIDERATION MENTIONED WAS THE SAME AS WAS MENTION ED IN THE AGREEMENT TO SALE ENTERED DURING MARCH, 2006. AGREE MENT TO SALE WAS NEVER CANCELLED. MR. MIRCHANDANI IS A DIRE CTOR OF M/S CORAL INFRASTRUCTURE PVT. LTD. DURING THE REVISIONA RY PROCEEDINGS LD. PR. CIT HAS OBSERVED THAT LD. AO WAS NOT JUSTIF IED IN ADOPTING THE SALE CONSIDERATION AS ON THE DATE OF A GREEMENT TO SALE AND HE OUGHT TO HAVE APPLIED THE VALUE OF PROP ERTY U/S 50C OF THE ACT AS ON THE DATE OF REGISTERED SALE DEED. 21. WE FURTHER NOTE THAT ALL THE ABOVE SAID INFORMA TION WERE CALLED BY THE LD. AO AFTER ISSUING NOTICE U/S 148 O F THE ACT ON SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 47 RECEIVING SPECIFIC INFORMATION FROM AIR ABOUT THE T RANSACTION OF SALE OF IMMOVABLE PROPERTY. ALL DOCUMENTS PERTAININ G TO AGREEMENT TO SALE, REGISTERED SALE DEED AND OTHER D OCUMENTS IN SUPPORT OF THE TRANSACTION AND DEDUCTION U/S 54 OF THE ACT WERE CALLED FOR AND DULY FILED BY THE ASSESSEE. IT IS NO T IN DISPUTE THAT THE SALE CONSIDERATION MENTIONED IN THE AGREEMENT T O SALE WAS RECEIVED THROUGH BANKING CHANNELS MUCH PRIOR TO THE DATE OF ENTERING THE REGISTERED SALE DEED. IT HAS BEEN CONS ISTENTLY HELD BY VARIOUS COORDINATE BENCHES THAT UNDER THE GIVEN FACTS AND CIRCUMSTANCES, DATE OF AGREEMENT FOR SALE ( AND NOT THE DATE OF REGISTERED SALE DEED) IS TO BE CONSIDERED FOR DETER MINATION OF VALUE AS PER SECTION 50C OF THE INCOME TAX ACT. FEW OF SUCH DECISIONS ARE MENTIONED BELOW: S.NO CITATION REFERENCE 1 ACIT VS M/S BALMER LAWRIE VAN LEER LTD ITA NO 4361/MUM/2016 DT 20- 11-2018 FOR THE ASST YEAR 2010- 11 2 RAJARAM PATIDAR ITA NO 371/ IND/ 2015DT 28-09- 2018 FOR THE ASST YEAR 2010-11 3 DCIT VS VENKAT REDDY (2013) 57 SOT 117 ( HYD BENCH ) 4 LAHIRI PROMOTERS VS ACIT ITA NO 12/VIZAG/ 2009 DT 22-06- 2010 5 SANJEEV LAL & ANR VS CIT & ANR (2014) 365 ITR 389 (SC) SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 48 6 SHRI MOHD IMRAN BAIG, HYDERABAD & OTHERS ITA NOS 1942-1954/ HYD/ 2014 DT 27-11-2015 7 BHARATHI DEV ANANDANIVS ACIT ITA NO 882/ BANG/ 2014 DT 12-02-2016 8 CIT VS SHIMBHU MEHRA ITA NO 373 OF 2010 DT 12-10- 2015 [ 236 TAXMAN 561(ALL) 9 ITO VS MODIPON LTD 168 TTJ 480 ( DEL) 10 HARI MOHAN DAS TANDON (HUF) VS PCIT 169 ITD 639 ( ALL) 11 KUNDABEN AMBHAI SHAH V. ITO ITA NO 3354/ AHD/ 2014 DT 30-11-2017 12 DHARAMHI BHAI SONANI V.ACIT 161 ITD 627 [ AHD ] 22. FURTHER FIRST AND SECOND PROVISO TO SECTION 50C (1) OF THE INCOME TAX ACT AS INSERTED AS INSERTED BY THE FINAN CE ACT, 2016 W.E.F 01-04-2017 READ AS UNDER: PROVIDED THAT WHERE THE DATE OF THE AGREEMENT FIXIN G THE AMOUNT OF CONSIDERATION AND THE DATE OF REGISTRATION FOR THE TRANSFER OF THE CAPITAL ASSET ARE NOT THE SAME, THE VALUE ADOPTED OR ASSESS ED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY ON THE DATE OF AGR EEMENT MAY BE TAKEN FOR THE PURPOSES OF COMPUTING FULL VALUE OF C ONSIDERATION FOR SUCH TRANSFER: PROVIDED FURTHER THAT THE FIRST PROVISO SHALL APPLY ONLY IN A CASE WHERE THE AMOUNT OF CONSIDERATION, OR A PART THEREOF, HAS BEEN RECEIVED BY WAY OF AN ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE BAN K DRAFT OR BY USE OF ELECTRONIC CLEARING SYSTEM THROUGH A BANK AC COUNT 59 [OR THROUGH SUCH OTHER ELECTRONIC MODE AS MAY BE PRESCRIBED], O N OR BEFORE THE DATE OF THE AGREEMENT FOR TRANSFER: SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 49 23. FURTHER THOUGH THE FIRST AND SECOND PROVISO TO SECTION 50C(1) OF THE INCOME TAX ACT WAS INSERTED W.E.F 01- 04-2017 BUT THESE PROVISO WERE INSERTED TO EXPLAIN DATE OF VALU ATION AS APPLICABLE AS ON THE DATE OF AGREEMENT AND NOT ON T HE DATE ON WHICH REGISTRY WAS ACTUALLY EXECUTED. HENCE, BOTH T HESE PROVISO HAVING RETROSPECTIVE EFFECT FROM THE DATE ON WHICH PROVISION OF SECTION 50C OF THE INCOME TAX ACT INSERTED IN THE A CT I.E. W.E.F 01-04-2003. SIMILAR VIEW WAS EXPRESSED IN THE FOLLO WING DECISIONS:- S.NO CITATION REFERENCE 1 MS ZUBEIDASHAHANSHAH ITA NO 519/ LKW/2017 DT 31-01-2019 2 DHARMSHIBHISONANIVS ACIT, SURAT [2016] 75 TAXMANN.COM 141 [ AHMEDABAD BENCH ] 161 ITD 627 (AHD ) 3 HARI MOHAN DAS TANDON (HUF) 169 ITD 639 (ALL) 4 M/S JAI LAXMI DEVELOPERS (P) LTD VS DCIT ITA NO 5578/ DEL/ 2014 DT 5 SMTKUNDANBENAMBHAI SHAH V. ITO ITA NO 3354/ AHD/ 2014 DT 30-11-2017 24. IN THE LIGHT OF THE ABOVE SETTLED JUDICIAL PREC EDENCE AND THE FACTS OF THE CASE, IT IS CLEARLY DISCERNABLE THAT I N THE INSTANT CASE WHERE THE PAYMENT FOR SALE CONSIDERATION MENTIONED IN THE SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 50 AGREEMENT TO SALE HAS BEEN DULY RECEIVED THROUGH BA NKING CHANNELS PRIOR TO ENTERING REGISTERED SALE DEED, TH E VALUE OF SALE CONSIDERATION TO BE ADOPTED IN THESE CASES HAS TO B E VALUED AS PER THE STAMP VALUATION AUTHORITY PROVIDED U/S 50C OF THE ACT AS ON THE DATE OF ENTERING THE AGREEMENT OF SALE OR CONSIDERATION MENTIONED IN THE AGREEMENT TO SALE WHICHEVER AMOUNT IS HIGHER. 25. IN VIEW OF THE ABOVE DECISIONS AND THE FACTS OF THE INSTANT APPEAL WE NOTE THAT LD. AO AFTER MAKING NECESSARY E NQUIRY HAS ADOPTED ONE OF THE PERMISSIBLE VIEW BY ACCEPTING TH E CLAIM OF THE ASSESSEE OF COMPUTING THE CAPITAL GAIN BY TAKING SA LE CONSIDERATION AS ON THE DATE OF AGREEMENT TO SALE W HICH THUS LEAVES NO ROOM FOR LD. PR. CIT TO ASSUME JURISDICTI ON ON THIS PARTICULAR ISSUE. THIS COMMON ISSUE COVERS APPEALS IN THE CASE OF SHANKARLAL MUKATI, BABULAL MUKATI, KAILASH CHANDRA MUKATI, TULSI BAI MUKATI, RADHEYSHYAM MUKATI, MOTILAL MUKAT I & MOTILAL MUKATI (L/H RAMCHANDRA MUKATI) W HEREIN LD. PR. CIT ASSUMED THE JURISDICTION ONLY ON THIS PARTICULAR ISSUE. SIN CE IN VIEW OF OUR ABOVE DISCUSSIONS WE HAVE HELD THAT LD. AO HAS COND UCTED NECESSARY ENQUIRY ON THIS PARTICULAR ISSUE AND HAVE ALSO TAKEN SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 51 ONE OF THE PERMISSIBLE VIEW JUDICIALLY ACCEPTED, TH ERE WAS NO JUSTIFICATION ON THE PART OF THE LD. PR. CIT TO INV OKE THE PROVISION OF SECTION U/S 263 OF THE ACT. WE, THEREFORE, QUASH THE PROCEEDINGS CARRIED OUT U/S 263 OF THE ACT AND REST ORE THE ASSESSMENT ORDER ORIGINALLY FRAMED U/S 143(3) R.W.S . 147 OF THE ACT IN THE CASE OF ALL THESE SEVEN ASSESSEES AND AL LOW THEIR RESPECTIVE APPEALS. 26. AS REGARDS REMAINING APPEALS THERE WERE TWO MOR E ISSUES WHICH WERE CONSIDERED BY LD. PR. CIT WHILE SETTING ASIDE THE ASSESSMENT ORDER FOR AFRESH ADJUDICATION WHICH FIRS TLY INCLUDED DEDUCTION U/S 54B OF THE ACT AND SECONDLY FOR DEDUC TION U/S 54F OF THE ACT. AS REGARDS DEDUCTION U/S 54B OF THE ACT 27. THE FACTS IN BRIEF ARE THAT THE ASSESSEE ENTERE D INTO AN AGREEMENT IN MARCH 2006 FOR SALE OF AGRICULTURAL LA ND USED FOR AGRICULTURAL PURPOSE. HE RECEIVED SALE CONSIDERATIO N IN PARTS THROUGH BANKING CHANNELS. SALE DEED WAS FINALLY REG ISTERED BETWEEN MARCH 2006 AND APRIL 2008. BEFORE REGISTERI NG THE SALE DEED ASSESSEE PURCHASED OTHER AGRICULTURAL LAND FRO M THE SALE SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 52 CONSIDERATION SO RECEIVED AND CLAIMED IT AS DEDUCTI ON U/S 54B OF THE ACT AGAINST THE CAPITAL GAIN EARNED FROM TRANSF ERRING OF THE CAPITAL ASSET BEING LAND USED FOR AGRICULTURAL PURP OSE IN TWO YEARS IMMEDIATELY PRECEDING THE DATES ON WHICH THE TRANSFER TOOK THE PLACE. 28. LD. AO ALLOWED THE CLAIM DURING THE ASSESSMENT PROCEEDINGS. LD. PR. CIT DURING THE COURSE OF PROCE EDINGS U/S 263 OF THE ACT OBSERVED THAT THE ASSESSEE HAD NOT C OMPLIED WITH THE PROVISION OF SECTION 54B OF THE ACT SINCE THIS BENEFIT WAS AVAILABLE ONLY IF THE ASSESSEE HAD MADE THE INVESTM ENTS IN OTHER AGRICULTURAL LAND AFTER THE DATE REGISTERED SALE DE ED. AS PER THE LD. PR. CIT THIS ASPECT WAS NOT EXAMINED BY THE LD. AO AND THUS NEEDED TO BE SET ASIDE FOR REEXAMINING THE ISS UE OF COMPUTING CAPITAL GAIN AT THE END OF LD. AO. 29. WE, HOWEVER, NOTE THAT THE AGREEMENT FOR SALE O F AGRICULTURAL LAND WAS MADE ON 31.03.2006 BUT FINALY REGISTRY WAS EXECUTED ON 11.04.2008. RESPECTIVE ASSESSEES RECEIVED THEIR SHARES OF SALE CONSIDERATION THROUGH BANKING CHANNELS WITHIN FEW MONTHS OF ENTERING THE SALE AGREEMENT. THE AMOUNT SO RELEA SED WAS SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 53 UTILIZED BY THE ASSESSEE TOWARDS PURCHASE OF NEW AG RICULTURAL LAND. THOUGH THE SALE AGREEMENT WAS REGISTERED ON 1 1.04.2008 BUT THE NEXUS OF INVESTMENT IN NEW AGRICULTURAL LAN D IS FROM THE SALE CONSIDERATION RECEIVED FROM SALE OF LAND. UNDE R SIMILAR SET OF FACTS COORDINATE BENCH, JAIPUR IN THE CASE OF SMT. RUKMANI DEVI AGRAWAL VS. ITO [ITANO.557/JP/2018] DATED 18.09.2018 OBSERVING AS FOLLOWS: 6.2 THE REQUIREMENT FOR AVAILING THE BENEFIT OF SE CTION 54B IS TO USE THE CAPITAL GAIN FOR PURCHASE OF NEW AGRICULTURAL L AND AND IF THE ASSESSEE DOES NOT RECEIVE THE SALE CONSIDERATION TH EN THE QUESTION OF PURCHASING NEW AGRICULTURAL LAND DOES NOT ARISE AND THE VERY OBJECT OF SECTION 54B OF THE ACT WOULD BE DEFEATED. HENCE THE RECEIPT OF COMPENSATION AND PAYMENT OF CONSIDERATION FOR PURCH ASE OF NEW ASSET ARE THE RELEVANT DATES FOR DETERMINING THE CONDITIO NS OF SECTION 54B OF THE ACT ARE SATISFIED. IN THE CASE IN HAND, WHEN TH E ASSESSEE HAS RECEIVED THE COMPENSATION PRIOR TO THE PAYMENT OF T HE PURCHASE CONSIDERATION FOR ACQUISITION OF NEW AGRICULTURAL L AND THEN THE TRANSACTION HAS TO BE LOOKED INTO IN THE OVERALL FA CTS AND SURROUNDING CIRCUMSTANCES IN WHICH THE ASSESSEE SOLD EXISTING A GRICULTURAL LAND AND PURCHASED NEW AGRICULTURAL LAND. IF THE INTENT OF THE ASSESSEE IS MANIFEST FROM THE FACTS AND CIRCUMSTANCES THAT THE ASSESSEE PURCHASED THE FRESH AGRICULTURAL LAND IN LIEU OF TH E EXISTING AGRICULTURAL LAND THEN THE CONDITIONS AS ENVISAGED IN SECTION 54 B OF THE ACT ARE SATISFIED. WE HAVE ALREADY DISCUSSED THE FACTS THAT THE ASSESSEE RECEIVED THE PURCHASE CONSIDERATION THROUGH POST DA TEDCHEQUES WHICH SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 54 WERE ENCASHED IN PART PRIOR TO THE PAYMENT OF THE P URCHASE CONSIDERATION THROUGH POST DATEDCHEQUES. AS DISCUSS ED ABOVE, BOTH THE RECEIPTS OF SALE CONSIDERATION AND PURCHASE CON SIDERATION ARE THROUGH POST DATEDCHEQUES AS EVIDENT FROM THE RECOR D AND NONE OF THE CHEQUES WAS ENCASHED ON THE DATE OF EXECUTION OF TH E SALE DEED BUT THE RECEIPT OF SALE CONSIDERATION IS AFTER THE AGRE EMENT TO SELL DATED 22/11/2012 AND MUCH PRIOR TO THE SALE DEED DATED 28 /01/2013 WHEREAS THE ENTIRE PURCHASE CONSIDERATION WAS PAID OUT FROM THE BANK ACCOUNT OF THE ASSESSEE ONLY AFTER THE SALE DEED DA TED 29/11/2012. THESE FACTS CLEARLY ESTABLISHED THAT THE RECEIPT AS WELL AS PAYMENT ARE THROUGH POST DATEDCHEQUES AND THEREFORE, THE ASSESS EE HAS ESTABLISHED THE EXISTENCE OF THE AGREEMENT TO SELL DATED 22/11/2012 UNDER WHICH THE PURCHASE CONSIDERATION WAS RECEIVED BY THE ASSESSEE. THE SUBSEQUENT DOCUMENTS CONSIST OF CORRE CTION DEED AS WELL AS THE AFFIDAVIT OF THE PURCHASER HAS SUPPORTE D THE FACT THAT THE CONSIDERATION FOR SALE OF THE EXISTING LAND WAS REC EIVED AT THE TIME OF THE AGREEMENT TO SELL DATED 22/11/2012 AND POSSESSI ON WAS ALSO HANDED OVER ON THE SAID DATE OF AGREEMENT. HENCE WH EN THE AGREEMENT WAS SUBSEQUENTLY ACTED UPON AND IN PERFOR MANCE OF THE SAID AGREEMENT, THE PARTIES HAVE FINALLY EXECUTED T HE SALE DEED THEN THE TRANSACTION WILL BE CONSIDERED AS TRANSFERRED A S ON THE DATE OF THE AGREEMENT. 30. IN LIGHT OF THE ABOVE DECISIONS WE OBSERVE THAT IN THE INSTANT CASE ALSO THE AGREEMENT TO SALE WAS NOT CANCELLED A ND THE SAME WAS ACTED UPON ON AT THE SAME SALE CONSIDERATION AN D FINALLY EXECUTED THE REGISTERED SALE DEED WITH THE SAME PER SON THOUGH SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 55 ACTING ON BEHALF OF THE COMPANY AS ITS DIRECTOR AND SINCE THE ASSESSEE HAS UTILIZED THE SAME SALE CONSIDERATION F OR PURCHASING NEW AGRICULTURAL LAND HE SHOULD BE ALLOWED THE BENE FIT OF SECTION 54F OF THE ACT, SO AS TO FULFILL THE VERY OBJECT OF SECTION 54B OF THE ACT FOR WHICH IT HAS BEEN CREATED IN THE ACT. T HIS VIEW WAS ADOPTED BY THE LD. AO TO ALLOW THE DEDUCTION U/S 54 B OF THE ACT WHICH IS LEGALLY PERMISSIBLE VIEW AND THUS, CANNOT BE TAKEN AS A BASIS TO ASSUME JURISDICTION U/S 263 OF THE ACT AND HOLDING THE ORDERS OF LD. AO AS ERRONOUS. IN VIEW OF THIS THE G ROUNDS OF APPEAL RAISED IN THE CASE OF SUBHASH MUKATI (ITANO.425/IND/2018) ALSO DESERVES TO BE ALLOWED AN D PROCEEDINGS U/S 263 OF THE ACT ARE DIRECTED TO BE QUASHED. 31. AS REGARDS THE REMAINING 5 APPEALS IN ITANO.870 TO 874 APART FROM THE TWO COMMON ISSUES ADJUDICATE ABOVE W HICH GAVE RISE TO THE PROCEEDINGS U/S 263 OF THE ACT THERE WA S ONE ISSUE WHICH PERTAINED TO THE ALLOWABILITY OF DEDUCTION U/ S 54F OF THE ACT. THIS DEDUCTION WAS CLAIMED BY THE ASSESSEE TOW ARDS AMOUNT UTILIZED FOR CONSTRUCTION OF RESIDENTIAL HOU SE FROM THE SALE PROCEEDS OF IMPUGNED IMMOVABLE PROPERTY. RECOR DS SHOWS SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 56 THAT THE ASSESSEE(S) HAVE FILED NECESSARY DOCUMENTA RY EVIDENCES SUCH AN AFFIDAVIT IN SUPPORT OF CONSTRUCTION OF NEW HOUSE, WITHDRAWAL OF AMOUNT FROM BANK FOR CONSTRUCTION PUR POSE, PHYSICAL EXISTENCE OF NEW RESIDENTIAL HOUSE WHICH W ERE ALSO CONFIRMED BY THE VALUATION REPORT OF CHARTERED ENGI NEER. FURTHER, AS REQUIRED BY THE LD. AO THE VALUATION OF RESIDENTIAL HOUSE WAS ALSO OBTAINED AND SUBMITTED TO THE LD. AO WHICH WAS FOUND TO BE MUCH HIGHER THAN THE DEDUCTION CLAIMED. BASED ON ALL SUCH EVIDENCES AND ENQUIRY LD. AO WAS SATISFIED ABOUT THE INVESTMENT IN CONSTRUCTION OF NEW RESIDENTIAL HOUSE AND THE CLAIM OF DEDUCTION U/S 54 F OF THE ACT. IT SHOWS TH AT THERE WAS A DETAILED ENQUIRY OF THE LD. AO TO VERIFY DEDUCTION U/S 54 F OF THE ACT. HOWEVER, LD. PR. CIT IN THE PRECEDING U/S 263 OF THE ACT ALLEGED THAT THE VALUATION REPORT IS DATED 22.03.20 16 BUT THE CONSTRUCTION WAS DONE IN 2008. 32. WE, HOWEVER, NOTE THAT THIS VALUATION WAS CARRI ED AT THE INSISTENCE OF THE LD. AO TO VERIFY THE PHYSICAL EXI STENCE OF THE PROPERTY AND OVERALL VALUE OF INVESTMENT. IT IS NOT A CASE OF NO ENQUIRY NOR INCOMPLETE ENQUIRY RATHER THE LD. AO TO THE BEST OF SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 57 HIS ABILITY HAD MADE DETAILED ENQUIRY AND MADE PRO PER APPLICATION OF MIND AND HAD EXAMINED THIS ISSUE OF DEDUCTION U/S 54F OF THE ACT. 33. IN THE GIVEN FACTS AND CIRCUMSTANCES INVOKING P ROVISIONS OF SECTION 263 OF THE ACT ON THIS ISSUE SO AS TO GIVE DIRECTION TO REVISE THE ASSESSMENT ORDER WAS UNJUSTIFIED AND UNC ALLED FOR. THEREFORE, SINCE THE ASSESSMENT ORDERS IN QUESTION ARE NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENU E, LD. PR. CIT ERRED IN ASSUMING JURISDICTION U/S 263 OF THE ACT A ND WAS THUS NOT JUSTIFIED IN SETTING ASIDE THE ORDER PASSED BY THE LD. AO U/S 143(3) R.W.S. 147 OF THE ACT. THUS, GROUNDS OF APPE ALS RAISED IN FIVE APPEAL IN ITANOS.870 TO 874/IND/2019 ALSO STAN DS ALLOWED. 34. THUS, ALL THE GROUNDS RAISED IN THE INSTANT APP EALS ARE ALLOWED, IMPUGNED ORDER U/S 263 OF THE ACT ARE HERE BY QUASHED AND THE RESPECTIVE ASSESSMENT ORDERS U/S 143(3) R.W .S. 147 ARE RESTORED. 35. IN THE RESULT, ALL THESE APPEALS RAISED BY THE ASSESSEES NAMELY KAMAL KISHORE MUKATI, DILIP MUKATI, VISH NU MUKATI, ASHOK MUKATI, AKASH MUKATI, SHANKARLAL MUKATI, B ABULAL SHANKARLAL MUKATI & ORS ITA NOS. 433 TO 438, 442,425/IND/2018 & 870 TO 874/ IND/2019 58 MUKATI, KAILASH CHANDRA MUKATI , TULSI BAI MUKATI, RADHEYSHYAM MUKATI, MOTILAL MUKATI, MOTILAL MUKATI (L/H RAMCHANDRA MUKATI), SUBHASH MUKATI (L/H BADRILAL MU KATI) VIDE ITANO.870/IND/2019, 871/IND/2019, 872/IND/2019 , 873/IND/2019, 870/IND/2019, 433/IND/2018, 434/IND/2 018, 436/IND/2018, 442/IND/2018, 435/IND/2018, 437/IND/2 018, 438/IND/2018, 425/IND/2018 RESPECTIVELY ARE ALLOWED . ORDER PRONOUNCED AS PER RULE 34 OF THE I.T.A.T. RUL ES 1963 ON 28.06.2021. SD/- SD/- (MADHUMITA ROY) (MA NISH BORAD) JUDICIAL MEMBER ACCOUNTAN T MEMBER / DATED : 28.06.2021 PATEL/PS COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE