The ITO-Ward-1(2)(3), Ahmedabad V. Smt. Lalitaben Govindbhai Patel, Ahmedabad

ITA 875/AHD/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4347 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 07-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA CIT DR LALIT P JAIN
• Assessee Lawyers: NUPUR PATEL
• Keywords: Cost of acquisition; Set aside
• Section: 143(3); 263

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, HONBLE VICE PRESIDENT & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO. 875/AHD/2016 AND CROSS OBJECTION NO. 76/AHD/2016 ( / ASSESSMENT YEAR: 2009-10) ITO, WARD-1(2)(3), AHMEDABAD, A-WING, ROOM NO. 103, 1 ST FLOOR, PRATYAKSH KAR BHAVAN, AMBAWADI, AHMEDABAD- 380015 SMT. LALITABEN GOVINDBHAI PATEL GANESH HOUSE, NR. DHARNIDHAR DERASAR, NEW VIKAS GRUH ROAD, PALDI BHATTA, AHMEDABAD- 380007 / VS. SMT. LALITABEN GOVINDBHAI PATEL GANESH HOUSE, NR. DHARNIDHAR DERASAR, NEW VIKAS GRUH ROAD, PALDI BHATTA, AHMEDABAD- 380007 ITO, WARD-1(2)(3), AHMEDABAD, A-WING, ROOM NO. 103, 1 ST FLOOR, PRATYAKSH KAR BHAVAN, AMBAWADI, AHMEDABAD- 380015 ./ ./ PAN/GIR NO. : AEA PP9 516 L ( APPELLANT /RESPONDENT ) .. ( RESPONDENT /CROSS OBJECTOR ) / APPELLANT BY : O. P. SHARMA, CIT DR, LALIT P. JAIN, SR. DR / RESPONDENT BY : NUPUR PATEL / DATE OF HEARING 03/01/2019 !'# / DATE OF PRONOUNCEMENT 22/03/2019 $%/ O R D E R PER MAHAVIR PRASAD - JM: THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAIN ST THE ORDER OF LD. CIT(A) APPEAL NO. CIT(A)-10/ITO-WD/2(1)/370/ 2014-15 DATED 03.02.2016 ARISING FROM ASSESSMENT ORDER DATED 26.0 6.2014. IN THE ITA NO.875/AHD/2016 & C.O. NO. 76/AHD/2016 [ITO VS. SMT. LALITABEN G. PATEL] A.Y. 209-10 - 2 - REVENUES APPEAL THE ASSESSEE HAS ALSO FILED CROSS OBJECTION CAPTIONED ABOVE. 2. IN THIS CASE ASSESSEE SHEKAR GOVINDBHAI PATEL LE GAL HEIR OF LATE SMT. LALITABEN GOVINDBHAI PATEL PASSED AWAY ON 02.1 0.2017 AND HER SON SHEKAR GOVINDBHAI PATEL MOVED AN APPLICATION FO R SUBSTITUTING HIMSELF AS A LEGAL HEIR. 3. ON THE OTHER HAND DR HAS NOT CONTROVERTED THE AF FIDAVIT FILED BY THE SHEKAR GOVINDBHAI PATEL THEREFORE WE SUBSTITUTE SHEKAR GOVINDBHAI PATEL AS LEGAL HEIR OF LATE LALITABEN GO VINDBHAI PATEL. 4. FACTS OF THE CASE ARE THE ASSESSEE HAD PURCHASED AGRICULTURAL LAND AT GODHAVI VILLAGE ADMEASURING 46,619/- SQ.MTR S DURING F.Y. 2007-08 AND CONVERTED THE SAME INTO NON-AGRICULTURA L LAND. THE COST OF ACQUISITION INCLUDING CONVERSION CHARGES OF RS. 2,21,338/- WAS RS. 33,69,763/-. THE BANAKHAT/AGREEMENT FOR SALE OF TH IS LAND WITH MELODY COMPLEX PVT. LTD., IS DTD. 15.09.2008 FOR RS . 38,74,431/-. IN THE SAID AGREEMENT, IT IS MENTIONED ON PAGE 4 THAT THE SELLER WOULD CONTINUE TO POSSESS THE LAND TILL EXECUTION OF SALE DEED. POSSESSION HAS BEEN HANDED OVER VIDE KABJA KARAR DT. 23.03.200 9 BY THE ASSESSEE TO GATIL PROPERTIES LTD., FOR A CONSIDERATION OF RS . 4,43,52,100/-. HENCE, AS PER THE PROVISIONS OF SEC. 2(24) (V) OF T HE I.T. ACT, 1961 R.W.S. 53A OF THE TRANSFER OF PROPERTY ACT, THE TRA NSFER TOOK PLACE ON 25.03.2009. THE ASSESSEE HAD CLAIMED THAT THE SAID LAND WAS SOLD TO MELODY COMPLEX PVT. LTD., VIDE INITIAL AGREEMENT DA TED 15.09.2008 FOR RS. 38,74,431/-. IT IS EVIDENT THAT THE ACTUAL TRANSFER TOOK PLACE VIDE KAJBA KARAR DTD. 23.03.2009 IN FAVOUR OF GATIL PROPERTIES LTD. FOR SALE CONSIDERATION OF RS. 4,43,52,100/-. THE STCG WOULD THEREFORE BE RS. 4,09,82,337/- INSTEAD OF RS. 5,04,668/- DISCLOS ED BY THE ASSESSEE IN THE RETURN OF INCOME. ITA NO.875/AHD/2016 & C.O. NO. 76/AHD/2016 [ITO VS. SMT. LALITABEN G. PATEL] A.Y. 209-10 - 3 - 5. ACCORDINGLY LD. AO MADE ATTENTION OF RS. 4,04,77 ,729/- AS SHORT TERM CAPITAL GAIN IN THE HANDS OF ASSESSEE. AGAINS T THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE TH E LD. CIT(A) WHO GRANTED RELIED TO THE ASSESSEE WITH FOLLOWING OBSER VATION. ON GOING THROUGH THE FACTS OF THE CASE, IT IS FOUND THAT THE APPELLANT RECEIVED THE AMOUNT, WHICH HAS FULLY SHOWN IN THE BOOKS OF ACCOU NTS OF THE APPELLANT ON ACCOUNT OF THIS TRANSACTION. THE AO F AILED TO ESTABLISH THAT THE APPELLANT RECEIVED MORE MONEY FOR WHICH AD DITIONS HAVE BEEN MADE. THE AMOUNTS WHICH HAVE BEEN ADDED IN THE HAN DS OF THE APPELLANT HAS BEEN RECEIVED BY M/S. MELODY COMPLEX PVT. LTD. THROUGH REGULAR BANKING CHANNELS AND M/S. MELODY CO MPLEX PVT. LTD. HAS SHOWN THIS TRANSACTION IN ITS BOOKS OF ACCOUNTS . M/S. MELODY COMPLEX PVT. LTD. IS ALSO ASSESSED TO INCOME TAX. THERE IS NO EVIDENCE TO SHOW THAT THE EXCESS AMOUNT WAS RECEIVE D BY THE APPELLANT THAN SHOWN BY HER IN REGULAR BOOKS OF ACCOUNTS. TH EREFORE, ADDITIONS IN THE HANDS OF THE APPELLANT ARE NOT JUSTIFIED. 6. IN THIS CASE LATE SMT. LALITABEN GOVINDBHAI PATE L WAS REGULAR ASSESSMENT WAS DONE U/S. 143(3) OF THE ACT DATED 28 .02.2011 WAS PASSED FOR ASSESSMENT YEAR 2009-10 AND THEREAFTER C IT(1) AHMEDABAD INITIATED PROCEEDING U/S. 263 OF THE ACT AND HAS RE NDERED THE ORDER DATED 05.03.2014. 7. THEREAFTER RESPONDENT SMT. LALITABEN GOVINDBHAI PATEL HAD FILED AN APPEAL BEFORE THE ITAT AHMEDABAD AGAINST THE ORD ER OF THE CIT(1) AHMEDABAD U/S. 263 OF THE ACT DATED 05.03.2014 VIDE ITA NO. 1175/AHD/2014 FOR ASSESSMENT ORDER 2009-10 AND COOR DINATE BENCH QUASHED THE PROCEEDING OF CIT U/S. 263. 8. THEREAFTER DEPARTMENT BEING AGGRIEVED BY THE ORD ER OF THE COORDINATE BENCH OF ITAT IN ITA NO. 1175/AHD/2014 D ATED 17.05.2017 FILED A TAX APPEAL BEFORE THE HONBLE HI GH COURT OF ITA NO.875/AHD/2016 & C.O. NO. 76/AHD/2016 [ITO VS. SMT. LALITABEN G. PATEL] A.Y. 209-10 - 4 - GUJARAT IN TAX APPEAL NO. 329 OF 2018. AND THE HON BLE HIGH COURT OF GUJARAT HAS RENDERED THE ORDER DATED 11.04.2018 REPORTED IN [2018] 94 TAXMANN.COM 396 (GUJARAT) UPHOLDING THE ORDER OF COORDINATE BENCH OF ITAT IN ITA NO. 1175/AHD/2014 AND THE TAX APPEAL OF THE DEPARTMENT HAS BEEN DISMISSED BY THE HONBLE GUJARA T HIGH COURT AND IN RESPECT OF ITS CONTENTION LD. AR ALSO FILED COPY OF THE ORDER OF THE GUJARAT HIGH COURT. BEFORE US APPEAL IS AN ORDER P ASSED PURSUANT TO U/S. 263. AT THE OUTSET LD. AR REQUESTED THAT SINC E ALREADY RELIEF HAD BEEN GRANTED BY THE HONBLE HIGH COURT TO THE ASSES SEE WITH THE FOLLOWING OBSERVATION:- SECTION 48, R.W.S 263, OF THE INCOME TAX ACT, 1961 . CAPITAL GAIN COMPUTATION OF (FULL VALUE OF CONSIDERATION). ASSE SSEE ENTERED INTO AGREEMENT TO SELL LAND TO M FOR A SALE CONSIDERAT ION OF RS. 38.74 LAKHS. AT TIME OF EXECUTION OF AGREEMENT, ASSESSEE EXECUTED A SALE DEED IN WHICH LAND IN QUESTION WAS SOLD TO ONE G LTD. FOR A SALE CONSIDERATION OF RS. 4.43 CRORES. IN SAID SALE DEE D, ASSESSEE WAS SELLER, G LTD. WAS BUYER AND M WAS CONFIRMING P ARTY. SALE DEED ALSO SHOWED THAT ASSESSEE RECEIVED BALANCE SALE CON SIDERATION OF RS. 37.74 LAKHS, WHEREAS REMAINING AMOUNT OF RS. 4.04 C RORES WAS RECEIVED BY M. IN RETURN OF INCOME, ASSESSEE CLA IMED THAT COST OF ACQUISITION OF LAND WAS RS. 33.36 WHICH WAS SOLD FO R RS. 38.74 LAKHS AND, THUS, DIFFERENCE WAS OFFERED AS SHORT TERM CAP ITAL GAIN. ASSESSING OFFICER ACCEPTED SUCH DECLARATION OF ASSESSEE. COM MISSIONER PASSED A REVISIONAL ORDER HOLDING THAT SALE CONSIDERATION BE ING RS. 4.43 CRORES, ASSESSEE HAD TO OFFER A SUM OF RS. 4.09 CRORES BY W AY OF SHORT TERM CAPITAL GAIN. TRIBUNAL, HOWEVER, SET ASIDE REVISIO NAL ORDER. IT WAS UNDISPUTED THAT OUT OF TOTAL SALE CONSIDERATION, RS . 4.04 CRORES WAS RECEIVED BY CONFIRMING PARTY M. WHETHER ON FACTS , WHEN ASSESSEE NEVER RECEIVED ANYTHING BEYOND RS. 38.74 LAKHS ORIG INALLY AGREED, QUESTION OF CHARGING CAPITAL GAIN FROM ASSESSEE ON A SUM LARGER THAN SAID AMOUNT WOULD NOT ARISE. HELD, YES. WHETHER, THEREFORE, TRIBUNAL ITA NO.875/AHD/2016 & C.O. NO. 76/AHD/2016 [ITO VS. SMT. LALITABEN G. PATEL] A.Y. 209-10 - 5 - WAS JUSTIFIED IN SETTING ASIDE REVISIONAL ORDER PAS SED BY COMMISSIONER. HELD, YES [PARA 7] [IN FAVOUR OF ASSESSEE]. 9. SINCE REVENUE APPEAL HAS BEEN DISMISSED BY THE H ONBLE HIGH COURT AGAINST THE ORDER OF ITAT THEREFORE ASSESSEE DOES NOT WANT TO PRESS THE APPEAL. 10. IN THE RESULT, APPEAL IS DISMISSED AS INFRUCTUO US. 11. C.O. NO. 76/AHD/2016 FILED BY THE ASSESSEE, SIN CE RELIEF HAS ALREADY BEEN GRANTED THEREFORE ASSESSEE DOES NOT WA NT TO PRESS THE CROSS OBJECTION AND SAME IS DISMISSED AS NOT PRESSE D. SD/- SD/- (PRAMOD KUMAR) (MAH AVIR PRASAD) VICE PRESIDENT JUDICI AL MEMBER AHMEDABAD: DATED 22/03/2019 TANMAY TRUE COPY !' #' / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. $ / ASSESSEE 3. ) *+ , / CONCERNED CIT 4. ,- / CIT (A) 5. 012 33*+, *+#, 56$)$ / DR, ITAT, AHMEDABAD 6. 289 : / GUARD FILE. BY ORDER / $% , ;/5 *+#, 56$)$ < THIS ORDER PRONOUNCED IN OPEN COURT ON 22/03/ 2019