ITO, Jaipur V. SHRI ALOK MUKHERJEE, INDIVIDUAL, Jaipur

ITA 887/JPR/2012

• Counselvise Citation: 88723114 RSA 2012
• Duration Of Justice: 2 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 26-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Assessee Lawyers: PRAVEEN SARASWAT CA DHK
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Charitable institution; Advance ruling; Cost of acquisition; Fair market value; Competent authority
• Section: 50C; 133(6); 80G; 12A; 147; 148; 54; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA -@ ITA NO. 887/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2004-05. INCOME TAX OFFICER, WARD 3(2), JAIPUR. CUKE VS. ALOK MUKHERJEE (INDIVIDUAL), HATHI BABU BAGH, STATION ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ACJPM 0161 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA -@ ITA NO. 862/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2004-05. ALOK MUKHERJEE (INDIVIDUAL), HATHI BABU BAGH, STATION ROAD, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 3(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ACTPM 0161 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA -@ ITA NO. 871/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2004-05 LATE SMT. SEEMA MUKHERJEE THROUGH L/H SHRI ALOK MUKHERJEE & SH. AROOP MUKHERJEE, HATHI BABU BAGH, STATION ROAD, JAIPUR. CUK E VS. INCOME TAX OFFICER, WARD 3(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT 2 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. VK;DJ VIHY LA -@ ITA NO. 888/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2004-05. INCOME TAX OFFICER, WARD 3(2), JAIPUR. CU KE VS. AROOP MUKHERJEE (HUF), HATHI BABU BAGH, STATION ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA -@ ITA NO. 872/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2004-05. SATKORI MUKHERJEE CHARITABLE TRUST, HATHI BABU KA BAGH, STATION ROAD, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 3(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI PRAVEEN SARASWAT (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14/10/2015. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 21/10/2015. VKNS'K@ ORDER PER BENCH THESE APPEALS ARE BEING FILED BY THE DIFFERENT ASSE SSEES AND HEARD TOGETHER AND RELATED TO ONE FAMILY ON COMMONS ISSUE OF TRANSFER OF CAPITAL 3 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. ASSETS. THEREFORE, FOR THE SAKE OF CONVENIENCE THES E ARE BEING DISPOSED OF BY A COMMON ORDER, BUT WE ARE DECIDING EACH ITA INDI VIDUALLY. 2. ITA NO. 887/JP/2012 AND ITA NO. 862/JP/2012 ITO WARD 3(2), JAIPUR VS. ALOK MUKHERJEE (INDIVIDUAL) THESE ARE THE CROSS APPEALS ONE BY THE REVENUE AND ANOTHER BY THE ASSESSEE ARISE AGAINST THE ORDER DATED 13/09/2012 PASSED BY THE LEARNED C.I.T.(A)-I, JAIPUR FOR A.Y. 2004-05. THE EFFECTIVE GROUNDS OF APPEALS ARE AS UNDER:- GROUND OF REVENUES APPEAL ITA NO. 887/JP/2012 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) IS JUSTIFIED IN DELETING TH E ADDITION FROM SALE OF RS. 36,12,659/- HOLDING THE ASSESSABIL ITY OF LTCG IN RESPECT OF FOUR PROPERTIES SOLD BY THE ASSESSEE IN THE HANDS OF HUF. GROUND OF ASSESSEES APPEAL ITA NO. 862/JP/2012 1. THAT THE ASSESSING OFFICER DID NOT HAVE THE VALI D JURISDICTION TO MAKE RE-ASSESSMENT U/S 147 AS THE SERVICE OF THE NO TICE U/S 148 ISSUED ON 31/3/2011 AND SERVED ON 31/3/2011 ITS ELF BY WAY OF AFFIXTURE, IN SPITE OF PRESENCE OF THE ASSESSE E FOR ACCEPTING THE NOTICE, WAS INVALID AB-INITO. 2. THAT THE LD CIT(A) HAS ERRED BY CONFIRMING THE AC TION OF THE ASSESSING OFFICER FOR NOT PROVIDING THE REASONS TO BELIEVE FOR ESCAPEMENT EITHER WITH THE NOTICE/ASSESSMENT ORDER OR DESPITE THE SUBSEQUENT WRITTEN REQUEST OF ASSESSEE AND THERE FORE THE RE-OPENING PROCEEDINGS ARE INVALID U/S 147/148. 4 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 3. THE ASSESSING OFFICER DID NOT HAVE THE VALID JURI SDICTION TO MAKE RE-ASSESSMENT U/S 147 AS THE FORMATION OF THE REAS ONS TO BELIEVE FOR ESCAPEMENT/UNDER-ASSESSMENT OF INCOME WERE IMPROPER AND DEFECTIVE BASED ON THE WRONG FOUNDATIO N THAT ASSESSEE HAD NOT FILED THE INCOME TAX RETURN FOR A. Y. 2004-05, WHICH IS AGAINST THE APPARENT FACT, WHILE IT WAS SUBMI TTED ON 21/3/2005. 4. THAT THE LD. CIT(A) HAS ERRED BY CONFIRMING THE A CTION OF ASSESSING OFFICER OF ASSESSING CAPITAL GAINS IN A .Y. 2004-05 BY IGNORING THE BASIC FACT THAT TRANSFER OF CAPITAL AS SET HAD ALREADY COMPLETED, IN TERMS OF SECTION 2(47)(V), 2( 47)(VI) AND EXPLANATION 2 TO THE SECTION 2(47), IN THE RELEVANT ASSESSMENT YEARS I.E. 1981-82 ITSELF, WHEN THE AGREEMENT TO SAL E WAS EXECUTED ACCOMPANIED WITH HANDING OVER OF PHYSICAL P OSSESSION OF CAPITAL ASSET AND PURCHASER HAD MADE CONSTRUCTIO N OVER IT AND ENJOYING THE PROPERTY FOR BUSINESS/RESIDENCE. 5. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACT ION OF A.O. BY IGNORING THE LAW THAT SECTION 50C CAME ON THE STATUT E W.E.F. 01/4/2003 AND THE TRANSACTIONS THROUGH AGREEMENT T O SELL OR POWER OF ATTORNEY CAME IN THE ENLARGED SCOPE OF SE CTION 50C(1) W.E.F. 01/10/2009 WHEREAS THE CAPITAL ASSETS OF THE ASSESSEE WERE TRANSFERRED BY WAY OF AGREEMENT FROM ASSESSMENT YEAR 1981-82 ITSELF. 6. WITHOUT PREJUDICE TO ABOVE GROUNDS, THE APPELLAN T SUBMITS THAT THE LD CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF A .O. WHO HAS WRONGLY INITIATED PROCEEDINGS FOR ASSESSMENT YEAR 20 04-05, AS SALE DEED IN QUESTION WAS NOT REGISTERED IN THE SAID ASSESSMENT YEAR. THE RELEVANT SALE DEED I.E. MOHAN JOSHI WAS EXE CUTED, PRESENTED AND REGISTERED BEFORE REGISTRATION AUTHOR ITY ON 5 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 31/3/2003 I.E. ASSESSMENT YEAR 2003-04. HENCE THE W HOLE PROCEEDINGS FOR ASSESSING CAPITAL GAINS IS VOID AB- INITO FOR THE SALE DEED IN FAVOUR OF MOHAN JOSHI. 3. THE REVENUE HAS CHALLENGED THE ORDER OF THE LD CI T(A) HOLDING THAT ASSESSABILITY OF LONG TERM CAPITAL GAIN IN RESPECT OF FOUR PROPERTIES SOLD BY THE ASSESSEE IN THE HANDS OF HUF. THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD SOLD THE FOLLOWING PROPERTIES: NAME OF THE SELLER NAME OF PURCHASER PROPERTY DT. OF REGISTRATION FACE VALUE EVALUATED VALUE BY SUB REGISTRAR DIFFERENCE ALOK MUKHERJEE RAMESH JAIN P.NO. 5, VAIBHAV NAGAR, JAIPUR 20/06/2003 12,912 1081961 1069049 NARESH KUMAR P.NO. 10, VAIBHAV NAGAR, JAIPUR 10/07/2003 12667 737875 725208 RAJ KUMAR P.NO.2, HATHI BABU BAGH, STATION ROAD JAIPUR 15/10/2003 6600 802627 796027 MAHAVEER PD. P.NO.2, HATHI BABU BAGH, STATION ROAD JAIPUR 15/10/2003 8680 990196 981516 ALOK MUKHERJEE (1/2 SHARE) MOHAN JOSHI HATHI BABU KA AHATA, KACHI BASTI, JAIPUR (1/2 SHARE) 19/12/2003 100000 6888625 3394312 6966112 4. IN ALL THE CASES, NOTICE U/S 148 OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED AS THE ACT) WAS ISSUED AND DET AILED QUESTIONNAIRES WERE ALSO SENT BY THE ASSESSING OFFICER. THERE WAS NO COMP LIANCE FROM ALL THE ASSESSEES, THEREFORE, ORDER U/S 144 WAS PASSED BY TH E ASSESSING OFFICER IN ALL THE CASES. ALL THE CASES WERE SCRUTINIZED BY THE ASSESSING OFFICER. IN ALL THE CASES, NOTICES WERE ISSUED TO THE ASSESSEES TO FURNISH THE DETAILS BUT NO 6 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. COMPLIANCE WAS MADE BY THEM. THEREFORE, THE LD ASSESS ING OFFICER DECIDED THE CASE U/S 144 OF THE ACT. THE LD ASSESSING OFFICE R OBSERVED THAT IN ALL THE CASES, DETAILS AVAILABLE WITH THE DEPARTMENT REVEAL ED THAT ALL THESE PROPERTIES WERE ACQUIRED BY ALL THE ASSESSEES PRIOR TO 01/4/1981 FOR ASCERTAINING FAIR MARKET VALUE (IN SHORT FMV) OF AL L THE PROPERTIES AS ON 01/4/1981. THE LD ASSESSING OFFICER COLLECTED INFOR MATION IN RESPECT OF TRANSFER OF IMMOVABLE PROPERTIES DURING THE CONTEMP ORARY PERIOD IN RESPECT OF SIMILAR PROPERTIES SOLD AND ALSO TO ASCERTAIN TH E FMV BASED ON THE VALUE ADOPTED BY THE REGISTERING AUTHORITY DURING THE PER IOD NEARBY 01/4/1981. AS SUCH THE LD ASSESSING OFFICER CALLED FOR INFORMATIO N U/S 133(6) OF THE ACT IN RESPECT OF DLC RATES OF THE ABOVE PROPERTIES AS ON 01/4/1981 FROM SUB- REGISTRAR JAIPUR-2, WHO VIDE LETTER NO. 1240 DATED 1 1/11/2011 HAD STATED THAT DLC FOR THE YEAR 1981 WAS NOT DECIDED BY THE DE PARTMENT. THE DIG (STAMP), JAIPUR HAD ALSO SUBMITTED THE SAME REPORT. HE FURTHER OBSERVED THAT SIMULTANEOUSLY, IT WAS NOTICED THAT SHRI AVANI KUMAR MUKHERJEE , WHO HAPPENS TO BE THE FATHER/HUSBAND OF THE ASSESSEES H AD ENTERED INTO AN AGREEMENT OF SALE OF PROPERTY ON 01/8/1980 SITUATED AT HATHI BABU KA BAGH, JAIPUR MEASURING 488.89 SQ.MT TO SHRI RAM RIKH JOSH I FOR A CONSIDERATION OF RS. ONE LAC. THIS HAS GIVEN THE RATE OF RS. 204/- PE R SQ. MT. THE PROPERTIES 7 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. SOLD BY SHRI AVANI KUMAR AND THE ASSESSEE WERE LOCAT ED IN THE SAME LOCALITY. THE FMV IS TO BE TAKEN FOR 01/4/1981, THUS THERE WAS A NEED FOR ALLOWING ADDITIONAL COST OF ACQUISITION FOR INTERVENING PERI OD SO AS TO ASCERTAIN FMV AS ON 01/4/1981. LOOKING TO THE GAP AVAILABLE IN THE P ERIOD IT WILL BE JUSTIFIED IF 10% INCREASE IS ALLOWED FOR THIS PURPOSE. ACCORDINGL Y, THE FMV AS ON 01/4/1981 CALCULATED TO RS. 225 PER SQ.MT. THE LD AS SESSING OFFICER AGAIN GAVE SHOW CAUSE NOTICE U/S 144 VIDE LETTER DATED 13/ 12/2011, WHICH HAS BEEN REPRODUCED BY THE ASSESSING OFFICER IN RESPECT IVE YEARS ASSESSMENT ORDERS. THE ASSESSEES FILED REPLY ON 19/12/2011 IN A LL THE CASES, WHICH HAS ALSO REPRODUCED BY THE ASSESSING OFFICER IN RESPECT IVE ASSESSMENT ORDERS. THE ANOTHER WRITTEN REPLY WAS FILED BY THE ASSESSEES I N THE CASE OF SHRI ALOK MUKHERJEE AND SHRI AROOP MUKHERJEE (HUF), WHICH HAS ALSO BEEN REPRODUCED IN RESPECTIVE ASSESSMENT ORDERS BY THE LD ASSESSING OFFICER. THE LD ASSESSING OFFICER CONSIDERED THE ASSESSEES REPLY AND OBSERVE D AS UNDER:- 10.1 TRANSFER OF PROPERTY HAS BEEN DEFINED UNDER S EC. 5 OF THE TRANSFER OF PROPERTY ACT AS AN ACT BY WHICH A LIVIN G PERSON CONVEYS PROPERTY, IN PRESENT ON IN FUTURE, TO ONE OR MORE THAN LIVING PERSONS OR TO HIMSELF; OR TO HIMSELF AN D ONE OR MORE OTHER LIVING PERSONS; AND TO TRANSFER PROPERT Y IS TO PERFORM SUCH ACT. 8 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 10.2 SALE HAS BEEN DEFINED U/S 54 OF THE SAID ACT AS TRANSFER OR OWNERSHIP IN EXCHANGE FOR A PRICE PAID OR PROMISED O R PART- PAID AND PART-PROMISED. SUCH TRANSFER, IN THE CASE OF TANGIBLE IMMOVABLE PROPERTY OF THE VALUE OF ONE HUN DRED RUPEES AND UPWARDS, OR IN THE CASE OF A REVERSION OR OTHER TANGIBLE THING, CAN BE MADE ONLY BY WAY OF REGISTERE D INSTRUMENT. 10.3 SEC. 17 OF THE INDIAN REGISTRATION ACT PROVIDE S FOR COMPULSORY REGISTRATION OF ALL INSTRUMENTS OF GIFTS OR IMMOVABLE PROPERTY AND OTHER NON-TESTAMENTARY INSTRUMENTS WHICH PURPORT OR OPERATE TO CREATE, DECL ARE, ASSIGN, LIMIT OR EXTINGUISH, WHETHER IN PRESENT OR I N FUTURE, ANY RIGHT, TITLE OR INTEREST, WHETHER VESTED OR CONT INGENT, OF THE VALUE OF ONE HUNDRED RUPEES AND UPWARDS, TO OR I N IMMOVABLE PROPERTY. 10.4 SEC. 23 OF THE REGISTRATION ACT FURTHER PROVID ES THAT EXCEPT IN SPECIAL CIRCUMSTANCES, NO DOCUMENT OTHER THAN A WILL SHALL BE ACCEPTED FOR REGISTRATION UNLESS PRESENTED FOR T HAT PURPOSE TO THE PROPER OFFICE WITHIN FOUR MONTHS FROM THE DATE OF ITS EXECUTION OTHER THAN SPECIAL CIRCUMSTAN CES AS PROVIDED U/S 25 THEREOF. 10.5 THE RAJASTHAN STAMPS DUTY ACT, 1998 REQUIRES EV ERY INSTRUMENT TO BE DULY STAMPED UNLESS IT IS EXEMPTED UNDER THAT ACT. THUS ALL THE INSTRUMENTS WHICH OPERATE TO TRANSFER OR CONVEY ANY RIGHT IN RESPECT OF IMMOVABLE PROPERT Y 9 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. INCLUDING INSTRUMENTS OR PARTITION, LEASE, MORTGAGE , POWER OF ATTORNEY ETC. HAVE TO BE DULY STAMPED UNDER THE RAJ ASTHAN STAMP DULY ACT. A PLANE READING OF ABOVE CLARIFIES THAT ANY DOCUMENT WHICH PURPORTS TO TRANSFER RIGHT IN ANY IM MOVABLE PROPERTY IN THE STATE OF RAJASTHAN, HAS TO BE PROPE RLY STAMPED UNDER THE RAJASTHAN STAMP DUTY ACT AND DULY REGISTERED UNDER THE INDIAN REGISTRATION ACT. THERE IS NO VALID TRANSFER OF RIGHTS IN RESPECT OF ANY IMMOVABL E PROPERTY UNLESS THESE TWO LEGAL OBLIGATIONS ARE DISCHARGED BY THE TRANSACTING PARTIES. MERE AGREEMENTS BETWEEN TWO PART IES CANNOT OVERRIDE THE PROVISIONS OF LAW. EVEN TRANSACT IONS OF THE TYPE REFERRED TO U/S 53A OF THE TRANSFER OF PROP ERTY ACT REQUIRE THAT THE DOCUMENT HAS TO BE REGISTERED AND MERE DELIVERY OF POSSESSION OF AN IMMOVABLE PROPERTY DOE S NOT CONSTITUTE TRANSFER THEREOF WITHIN THE MEANING OF TH E LAW. 10.6 IN SUPPORT OF ABOVE, RELIANCE IS PLACED ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF SURAJ LAMP & INDU STRIES PVT. LTD. VS. STATE OF HARYANA & ANR. (SLP (C) NO. 13917 OF 2009) REPORTED IN 2011 STPL(WEB)879 S.C. IN PARA 16 & 18 OF THE JUDGMENT, THE HONBLE APEX COURT HELD THAT:- 16. WE, THEREFORE, REITERATED THAT IMMOVABLE PROPERTY C AN BE LEGALLY AND LAWFULLY TRANSFERRED/CONVEYED ONLY BY A REGISTERED DEED OR CONVEYANCE. TRANSACTION OF THE NATURE OF G AP SALES OR SA/GPA/WILL TRANSFERS DO NOT CONVEY TITLE AND DO NOT AMOUNT TO TRANSFER, NOR CAN THEY BE RECOGNIZED OR V ALID MODE OF TRANSFER OR IMMOVABLE PROPERTY 10 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 18. WE HAVE MERELY DRAWN ATTENTION TO AND REITERATE D THE WELL SETTLED LEGAL POSITION THAT SA/GPA/WILL TRANSACTION S ARE NOT TRANSFERS OR SALES AND THAT SUCH TRANSACTIONS C ANNOT BE TREATED AS COMPLETED TRANSFERS OR CONVEYANCES. THEY CAN CONTINUE TO BE TREATED AS EXISTING AGREEMENT OF SALE.. 11.1 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO THE DISCUSSIONS MADE HEREINABOVE, THE CONT ENTIONS OF THE A/R OF THE ASSESSEE CANNOT BE ACCEPTED. IN V IEW OF THE CLEAR CUT PROVISIONS OF SECTION 50C OF THE INCO ME TAX ACT AND OTHER RELATED SECTIONS OF THE TRANSFER OF PROPER TY ACT, 1882, THE INDIAN REGISTRATION ACT, 1908 AND THE RAJ ASTHAN STAMP DUTY ACT, 1998, THE PROPERTY IS SAID TO BE TR ANSFERRED ONLY AFTER REGISTRATION AND THE VALUE ADOPTED BY TH E REGISTERING AUTHORITY FOR THE PURPOSE OF STAMP DUTY IS TAKEN AS THE FULL VALUE OF CONSIDERATION RECEIVED OR ACCR UED AS A RESULT OF SUCH TRANSFER FOR THE PURPOSE OF CALCULAT ION OF CAPITAL GAIN. 11.2 THE VALUE ADOPTED BY THE REGISTERING AUTHORITY, THE FIRST FOUR PROPERTIES OF SHOWS CAUSE COMES TO RS. 36,12,659/- (RS. 1,08,1961+RS. 7,37,875 + RS. 8,02,627 + RS. 9,90,19 6) AND IN THE CASE OF PROPERTY SITUATED AT HATHI BABU KA A HATA, KACHCHI BASTI, JAIPUR IT IS RS. 22,96,208/- (1/3 OF RS. 68,88,625/-). IN SHOW CAUSE NOTICE THE EVALUATED VAL UE OF THIS PROPERTY WAS TAKEN AT RS. 33,94,312/- IN ADVERT ENTLY INSTEAD OF RS. 68,88,625/-. SIMILARLY, IN VIEW OF TH E AFORESAID 11 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. DISCUSSION, THE FAIR MARKET VALUE OF THE PROPERTIES SOLD, AS ON 01/04/1981 IS TAKEN AT RS. 7,08,076/- AND AT RS. 1,69,628/- (1/3 OF RS. 5,08,884/-) RESPECTIVELY. THE PROPERTY SITUATED AT HATHI BABU KA AHATA, KACHCHI BASTI, JAI PUR WAS SOLD TO SH. MOHAN JOSHI BY THREE CO-OWNERS, SMT. SE EMA MUKHERJEE AND TWO SONS NAMELY ALOK MUKHERJEE AND ARO OP MUKHERJEE, THEREFORE ASSESSEES SHARE IN THIS PROPE RTY IS 1/3 RD . LONG TERM CAPITAL GAIN ARISING TO THE ASSESSEES HANDS IS THUS COMPUTED IN THE FOLLOWING MANNER:- DT. OF REGISTRATION DESCRIPTION OF PROPERTY INDEXED COST OF ACQUISITION EVALUATED VALUE TAKEN BY THE SUB REGISTRAR LONG TERM CAPITAL GAIN 20/06/2003 P.NO. 5, VAIBHAV NAGAR, JAIPUR 234435/ - RS. 1081961 RS. 8,47,526/ - 10/07/2003 P.NO. 10, VAIBHAV NAGAR, JAIPUR 148470/ - RS. 737875 RS. 5,89,405/ - 15/10/2003 P.NO.2, HATHI BABU BAGH, STATION ROAD JAIPUR 144292/ - RS. 802627 RS. 6,58,335/ - 15/10/2003 P.NO.2, HATHI BABU BAGH, STATION ROAD JAIPUR 180879/ - RS. 990196 RS. 8,09,317/ - 19/12/2003 HATHI BABU KA AHATA, KACHI BASTI, JAIPUR (1/3 SHARE) 169628/ - RS. 22962 08 RS. 21,26,580/ - LONG TERM CAPITAL GAIN RS. 50,31,163/ - 11.3 IN RESPECT OF THE ABOVE PROPERTIES, THE ABOVE SALE DEED EXECUTED BY SH. ALOK MUKHERJEE IN HIS INDIVIDUAL CA PACITY AS OWNER OF THE ABOVE PROPERTIES, THEREFORE, THE LONG T ERM 12 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. CAPITAL GAIN ON SALE OF ABOVE SAID PROPERTIES IS TA XED IN THE HANDS OF THE ASSESSEE I.E. SH. ALOK MUKHERJEE (INDI VIDUAL) THE FINDINGS OF THE OTHER CASES ARE IDENTICAL TO THE CASE OF ALOK MUKHERJEE ON FACTS BUT CAPITAL GAIN IN CASE OF LATE SEEMA MUKHER JEE WAS CALCULATED AT RS. 30,17,017/-, AROOP MUKHERJEE HUF AT RS. 21,26,580/- . 5. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A)-I, JAIPUR. WHERE IN CASE OF ALOK MUKHERJEE, HE CHALLENGED REOPENING U/S 148 OF THE A CT, YEAR OF ASSESSABILITY AND TRANSFER TOOK PLACE ON 01/8/1980, APPLYING PRO VISION OF SECTION 50C OF THE ACT AND FMV AS ON 01/4/1981. THE LD CIT(A) IN CA SE OF SH. ALOK MUKHERJEE HELD VALID REOPENING U/S 148 AND SHE HELD THAT DOCUMENTS WERE REGISTERED ON 2/4/2003, THEREFORE, THE TRANSACTION PERTAINED TO A.Y. 2004-05. THE PROCEEDING INITIATED BY THE ASSESSING OFFICER WIT H RESPECT TO TRANSFER OF PROPERTY IN KACHHHI BASTI, HATHI BABU KA AAHATA TO MOHAN JOSHI AS 1/3 RD CO-OWNER WAS UPHELD. ON APPLICATION OF SECTION 50C, TRANSFER OF ASSETS U/S 2(47)(V), APPLICABILTY OF SECTION 50C AND YEAR OF A SSESSABILITY, THE LD CIT(A) HAS HELD AS UNDER:- 6.3 I HAVE CAREFULLY PERUSED THE ORDER OF THE AO A ND THE SUBMISSIONS OF THE AR. THE MAIN CONTENTION OF THE AR IS THAT SINCE THE AGREEMENTS OF SALE FOR THE FIRST FOUR PRO PERTIES IN THE 13 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. CHART ABOVE WERE SIGNED BY SHRI AVANI KUMAR MUKHERJE E AS GUARDIAN OF HIS MINOR SON ALOK MUKHERJEE IN A.Y. 19 76-77, AND IN CASE OF THE PROPERTY TRANSFERRED TO MOHAN JOSHI IN A.Y. 1981 - 82 THE TRANSFERS CAME WITHIN THE AMBIT OF SEC.2(47)( V) OF THE I.T. ACT, 1961. THE SUBSEQUENT REGISTRATION OF THE SA LE DEEDS OF THESE PROPERTIES TOOK PLACE IN A.Y. 2004-05. AS SEC .50C WAS INTRODUCED IN THIS STATUTE WITH EFFECT FROM 01/04/20 03 IT CANNOT BE MADE APPLICABLE RETROSPECTIVELY ON TRANSFER OF T HESE PROPERTIES WHICH TOOK EFFECT PRIOR TO 01/04/2003 AS PER SEC. 53A OF TP ACT, READ WITH SEC.2(47)(V) OF THE I.T. ACT, 196 L . I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND T HE SUBMISSIONS OF THE AR AND CONSIDER IT NECESSARY TO SUMMARIZE THE FACTS OF THE CASE TO BRING CLARITY TO THE ISSUE . THE FACTS OF THE CASE ARE AS FOLLOWS: 1. A SUIT FOR PARTITION OF IMMOVABLE PROPERLY BY M ETES AND BOUNDS WAS FILED BY SMT. SEEMA MUKHERJEE WIFE OF SHRI AVANI KUMAR MUKHERJEE FATHER OF SHRI AROOP MUKHERJE E AND ALOK MUKHERJEE ON 18/03/1963 IN THE COURT OF SENIOR CIVIL JUDGE JAIPUR CITY NO.1. THE PLAINTIFF SUBMITTED THAT THE IMPARTIBLE ESTATE OF THE DEFENDANT WAS RESUMED BY TH E RAJASTHAN GOVT. ON 01/11/1958 AND SHRI AVANI KUMAR MUKHERJEE WAS PAID IN TERMS OF CASH AND BONDS BY WAY OF COMPENSATION. IT WAS PLEADED BY SMT. SEEMA MUKHERJE E THAT THE RULE OR PRIMOGENITURE CEASED TO BE APPLICA BLE AFTER THE RESUMPTION PROCEEDINGS BY THE GOVT. AND SO THE 14 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. PROPERTY CAME UNDER THE PERSONAL LAW THAT IS THE MIT AKSHAR HINDU LAW. THUS IT WAS SOUGHT THAT A PARTITION OF THIS HUF BE MADE BY METES AND BOUNDS AND ONE FOURTH SHARE OF THE PROPERTY BE GIVEN TO SEEMA MUKHERJEE AND ONE FOURTH EACH TO THE MINOR SONS OF SHRI AVANI KUMAR MUKHERJEE NAM ELY AROOP MUKHERJEE AND ALOK MUKHERJEE. 2. SHRI ALOK KUMAR MUKHERJEE DEFENDED THE SUIT BY SUBMITTING THAT THOUGH THE SUIT PROPERTIES WERE ANCESTRAL IN NA TURE, YET EVEN AFTER RESUMPTION THEY SHOULD BE DEEMED TO BE H IS SELF ACQUIRED PROPERTIES IN WHICH HIS WIFE AND HIS CHILDR EN WERE NOT ENTITLED TO CLAIM PARTITION. IN SUPPORT OF THIS CONTENTION HE CITED SEC.27 OF THE I.T. ACT, 1961 WHICH PROVIDES THAT FOR THE PURPOSES OF SEC.22 TO 26 THE HOLDER OF AN IMPAR TIBLE ESTATE SHALL BE DEEMED TO BE THE INDIVIDUAL OWNER OF ALL THE PROPERTIES COMPRISED IN THE ESTATE. 3. AN ORDER WAS PASSED BY SENIOR CIVIL JUDGE JAIPUR CITY, CIVIL SUIT NO. 11/63 ON 30/05/ 1963. THE HON'BLE JUDGE GA VE THE DECISION IN FAVOUR OF THE PLAINTIFF THAT IS SMT. SE EMA MUKHERJEE. THE HON'BLE JUDGE OBSERVED IN HIS ORDER T HAT THE PROPERTY SOUGHT TO BE PARTITIONED WAS PART OF IMPART IBLE PROPERTY, WHICH HAD DEVOLVED UPON SHRI AVANI KUMAR MUKHERJEE FROM HIS FORE FATHER UNDER THE RULE OF PRIMOGENITURE. IT WAS FREE FROM RIGHTS OF YOUNGER BR OTHER, UNCLES, COUSINS AND OTHER RELATIVES. THE RELEVANT PO RTION OF THE ORDER IS REPRODUCED BELOW FOR REFERENCE: 15 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 'IN THE INSTANT CASE THE STATE GRANT WHICH MADE THE ESTATE AN IMPARTIBLE ONE WAS RESUMED ON 1 ST NOVEMBER, 1958 AND WITH THAT RESUMPTION, THE CONDITIONS ATTACHED WITH THE GRANT WERE REMOVED AND WHATEVER PROPERTIES THAT WERE LEFT IN THE HANDS OF THE DEFENDANT AFTER SUCH RESUMPTION BECAME THE PROPERTY OF THE DEFENDANT HAVING ORDINARY INCIDENTS OF HINDU LAW. W ITH THE RESUMPTION, A VERY IMPORTANT INCIDENT, GOVERNING TH E DEVOLUTION OF THE IMPARTIBLE ESTATE ON A SINGLE HEIR BY RULE O F PRIMOGENITURE CEASED TO APPLY AND THE HITHERTO HOLDER OF IMPARTIB LE ESTATE BECAME SUBJECT TO HIS PERSONAL LAW. THIS PRINCIPLE HAS BEEN RECOGNIZED IN SEC.38 OF THE RAJASTHAN LAND REFORMS AND RESUMPTION OF JAGIRS ACT, 1952 WHICH PROVIDES THAT IN THE EVENT OF DEATH OF A JAGIRDAR THE AMOUNT OF COMPENSATION S HALL BE PAID TO HIS HEIR OR HEIRS ACCORDING TO HIS PERSONAL LAW, AND THUS THE MOST IMPORTANT INCIDENT OF AN IMPARTIBLE, ESTATE I. E. THE RIGHT OF DEVOLUTION BY RULE OF PRIMOGENITURE ON A SINGLE HEI R HAVING GONE, THE OTHER INCIDENT REFUSING RIGHT OF PARTITION, WHI CH WAS NECESSARY TO MAINTAIN THE INTEGRITY OF THE ESTATE AND SAVE IT FROM FRAGMENTATION, AUTOMATICALLY DWINDLES. REFERENCE MA Y BE MADE TO THE LAW OF IMPARTIBLE ESTATES BY BANKIM C.DE AT P AGE 46, WHEREIN IT IS MENTIONED THAT 'AN ESTATE OR TENURE W HICH WAS ORIGINALLY IMPARTIBLE DOES NOT NECESSARILY CONTINUE TO BE SO AND ONE SINGLE CHANGE IN ITS NATURE OF TENURE, ONE SING LE INSTANCE OF NON-OBSERVANCE OF THE CUSTOM WILL DESTROY IT COMPLE TELY'. AND ALSO THE MAXIM 'CESSANTE CAUSA, CESSAT EFFECTUS' WH ICH MEANS WHEN THE CAUSE CEASES, THE EFFECT CEASES, THUS THE CHARACTER OF THE PROPERTY LEFT WITH THE DEFENDANT AFTER THE RESU MPTION OF THE STATE GRANT I.E. THE IMPARTIBLE ESTATE ASSUMES THE CHARACTER OF THE ANCESTRAL PROPERTY AS IF IN THE HANDS OF A SOLE SURVIVING CO- PARCENER, HAVING ALL THE INCIDENTS OF COPARCENARY P ROPERTY). THE RELIANCE BY THE LEARNED ADVOCATE FOR THE DEFENDANT ON THE PROVISIONS OF SEC.27 OF THE I.T. ACT, I96I , IS NOT OF ANY HELP TO HIM, AS FIRSTLY THE PROVISION RELIED ON IS A 'DEEMI NG' PROVISION WHICH IS GENERALLY INTRODUCED IN AN ENACTMENT IN OR DER TO ENLARGE THE MEANING OF THE WORDS AND TREAT A PERSON OR THIN G ONE WHICH IT MAY OR MAY NOT BE, AND SUCH PROVISIONS HAVE TO B E LIMITED IN 16 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. THEIR SCOPE TO THE STATUTES IN WHICH THEY OCCUR, AN D SECONDLY ITS APPLICABILITY ITSELF HAS BEEN LIMITED IN ITS SCOPE TO THE PROVISIONS OF SEC. 22 TO 26 OF THE I.T. ACT ONLY. HENCE THE MEANI NG GIVEN CANNOT BE EXTENDED TO AND APPLIED IN THE CONSIDERAT ION OF THE NATURE OF PROPERTY UNDER THE GENERAL PROVISIONS OF HINDU LAW. MOREOVER, THE DEFINITION AS GIVEN ALSO IS NOT APPL ICABLE IN THE PRESENT CASE, BECAUSE ON THE DATE OF THE SUIT, I.E. 16/03/1963, THE DEFENDANT WAS NOT THE HOLDER OR IMPARTIBLE ESTA TE. THUS THE CONTENTION ON BEHALF OF THE DEFENDANT HAS NO FORCE. IT MUST, THEREFORE, BE DECIDED THAT THE PLAINTIFF NOS.I AND 2 HAVE GOT A RIGHT TO CLAIM PARTITION.' WITH THE ABOVE OBSERVATIONS A PRELIMINARY DECREE FO R PARTITION OF THE SUIT PROPERTIES WAS PASSED WITH ONE- FOURTH SHARE ALLOTTED TO SMT. SEEMA MUKHERJEE AND ONE-FOUR TH SHARE EACH TO THE TWO MINOR SONS AROOP MUKHERJEE AN D ALOK MUKHERJEE. A RESERVE OF RS.50,000/- WAS SET APART A S A PROVISION FOR THE EDUCATION AND MARRIAGE OF MS. SHU BHRA MUKHERJEE DAUGHTER OF SHRI ALOK KUMAR MUKHERJEE. SH RI RAM SWAROOP MISHRA WAS APPOINTED COMMISSIONER FOR PARTITIONING OF THE SAID PROPERTY. 4. CONSEQUENT TO THIS JUDGMENT DATED 31/05/1963, S HRI RAM SWAROOP MISHRA DIVIDED THE PROPERTIES VIDE AN ORDER DATED 31/07/1963. 5. THE FIRST FOUR PROPERTIES UNDER CONSIDERATION CA ME TO THE SHARE OF SHRI ALOK MUKHERJEE AND THE FIFTH PROPERLY CAME INTO THE HANDS OF SHRI AVANI KUMAR MUKHERJEE AS PER THE ORDER OF SHRI R.S. MISHRA DATED 3L/07/1963. IT IS A N 17 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. ESTABLISHED LEGAL PRINCIPLE THAT WHEN PARTITION TAK E PLACE BETWEEN THE KARTA AND HIS SONS BY MEETS AND BOUNDS A ND THERE IS A COMPLETE SEVERANCE OF STATUS BETWEEN FATH ER, MOTHER AND SONS AND THE MOTHER TAKES SEPARATELY HER SHARE OF FAMILY EQUAL TO THE SONS THEN THE PROPERTY FALLI NG TO THE SHARE OF THE FATHER WOULD BE ASSESSABLE IN HIS HANDS AS AN INDIVIDUAL. THUS THE FIFTH PROPERTY WAS THE INDIVIDU AL PROPERTY OF SHRI ALOK KUMAR MUKHERJEE WHO AS PER REC ORDS DIED INTESTATE. 6. THE PROPERTY WOULD THUS DEVOLVE ACCORDING TO THE HINDU SUCCESSION ACT, 1956. ONE OF THE CONSEQUENCES OF TH E RULE OF SUCCESSION LAID DOWN IN SEC.8 OF THE HINDU SUCCES SION ACT IS THAT A HUF PROPERLY MIGHT NOT COME INTO BEING ON THE DEATH OF A HINDU MALE, EVEN IF HE DIES INTESTATE AS HIS SEPARATE AND SELF ACQUIRED PROPERTY WOULD DEVOLVE U PON INDIVIDUAL HEIRS IN THE PRESCRIBED PROPORTION AND N OT ON A HUF CONSTITUTED BY HIS HEIRS AS WAS THE CASE BEFORE THE COMING INTO FORCE OF THIS ACT. 7 . SINCE AFTER PARTITION, EFFECTED ON 31/07/1963, THE PROPERTY UNDER CONSIDERATION HAD BECOME THE INDIVIDUAL PROPE RTY OF SHRI ALOK KUMAR MUKHERJEE AFTER HIS INTESTATE DEATH IT DEVOLVED UPON HIS HEIRS IN THEIR INDIVIDUAL CAPACIT Y. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE INFORMED THE ASSESSING OFFICER VIDE LETTER DATED 19 /12/2011 18 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. THAT SHRI AVANI KUMAR MUKHERJEE DIED ON 13/05/1983 AND HIS WIFE SMT. SEERNA MUKHERJEE AND HIS TWO SONS NAMEL Y ALOK MUKHERJEE AND AROOP MUKHERJEE BECAME THE OWNERS OF THIS PROPERTY, ACCORDINGLY EACH OF THEM WAS ONE THI RD CO- SHARES. THEREFORE, AT THE TIME OF REGISTERING THE D OCUMENT THESE CO-OWNER SIGNED IN THE CAPACITY OF ONE THIRD S HARE OWNERS OF THIS PROPERTY. 9. REGARDING THE APPLICABILITY OF SEC.53A OF TP ACT, READ WITH SEC,2(47)(V) OF I.T. ACT, IT IS OBSERVED THAT THE OB JECT OF SECTION 53A OF TPA WAS TO SAFEGUARD THE INTEREST OF T HE TRANSFEREE AND PREVENT FRAUD IN CASES OF TRANSFER WH EN AN AGREEMENT TO SALE WAS MADE BUT COULD NOT BE REGISTER ED. FROM THE INCOME TAX POINT OF VIEW, COGNIZANCE OF SUC H TRANSFERS WAS TAKEN BY DEFINING THE RECEIPTS ON SUCH TRANSFERS AS INCOME U/S 2(47)(V) TO BE TAXED AS CAP ITAL GAINS, TO PREVENT DEFRAUDING THE DEPARTMENT OF DUE REVENUE IN CASES, WHERE CAPITAL GAINS WERE EARNED BUT NOT DIS CLOSED ON SUCH TRANSFERS OF PROPERTY. IN THIS PARTICULAR C ASE IT IS SEEN THAT NEITHER AVANI KUMAR NOR ALOK MUKHERJEE HA D DECLARED THIS INCOME EITHER IN A.Y. 1976-77 PERTINE NT TO THE RECEIPTS AS PER SALE AGREEMENTS, NOR HAS IT BEEN SH OWN ON RECEIPT OF THE BALANCE PAYMENT IN A.Y. 2004-05. THER E ARE NO RECORDS TO VERIFY HOW THIS INCOME WHICH IS NOW CLA IMED TO HAVE ACCRUED IN A.Y. 1976-77, U/S 2(47)(V) WAS TREAT ED FOR TAX PURPOSES. 19 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. THE ASSESSEE CANNOT VIOLATE THE PROVISIONS OF LAW OF THE I.T. ACT, AND SIMULTANEOUSLY CLAIM DEFENSE UNDER ITS PRO VISIONS. IF HE SAYS THAT THE TRANSFERS HAD BEEN FINALIZED IN A.Y. 1976- 77 AND 1981-82 AS PER THE AGREEMENT TO SALE THE REC EIPTS OF THE SAME SHOULD HAVE BEEN SHOWN AS PER SECTION 2(7) (V) AS PART OF THE INCOME OF SHRI AVANI KUMAR MUKHERJEE IN A.Y. 1981-82 AND IN A.Y. 1976-77. NECESSARY RELIEF COULD HAVE BEEN SOUGHT AFTER PRODUCING THE RECORDS BEFORE THE DEPARTMENT. HOWEVER, THIS HAS NOT BEEN DONE. THUS THE ASSESSEE HAS FAILED TO DISCHARGE ITS ONUS TO SUPPOR T ITS CLAIM THAT THE INCOME ACCRUED U/S 2(47)(V) OF I.T. ACT IN A.Y. 1976-77 AND A.Y. 1981-82 AS PER THESE SALE AGREEMEN TS. IN SHORT THE ASSESSEE NEITHER DECLARED THE CAPITAL GAINS IN THE YEAR OF AGREEMENT OF SALE I.E. A.Y. 1976-77 AND 1981-82 NOR WHEN THE SALE DEEDS WERE REGISTERED. HAD INCOME B EEN DECLARED IN A.Y. 1976-77 AND 1981-82 IN THE HANDS O F AVANI KUMAR MUKHERJEE OR ALOK MUKHERJEE THE VALIDITY OF T HE AGREEMENT TO SALE COULD HAVE BEEN CONSIDERED. THE ON US WAS ON THE ASSESSEE TO PRODUCE THE NECESSARY DOCUMEN TS BEFORE THE DEPARTMENT TO SHOW THAT IT HAD DECLARED I TS INCOME U/S 2(47)(V) IN THE YEAR OF AGREEMENT TO SAL E BEFORE THE DEPARTMENT. IT HAS FAILED TO DISCHARGE ITS ONU S & SO BENEFIT OF THE SECTION CANNOT BE GIVEN TO IT IN THE YEAR WHEN THE SALE DEED WERE REGISTERED AND THE FACT OF TRANSF ER CAME TO THE KNOWLEDGE OF THE DEPARTMENT. 20 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. THIS VIEW IS SUPPORTED BY THE OBSERVATION OF THE HON 'BLE SC IN THE CASE OF SURAJ LAMP & INDUSTRIES (P) LTD. IN STATE OF HARYANA & 2011 STPL (WEB) 879 SC. WHEREIN IT HAS BEE N OBSERVED AS FOLLOWS: 'WE THEREFORE REITERATE THAT IMMOVABLE PROPERTY CAN BE LEGALLY AND LAWFULLY TRANSFERRED/CONVEYED ONLY BY A REGISTE RED DEED OF CONVEYANCE. TRANSACTION OF THE NATURE OF GPA SALE S' OR SA/GPA/WILL TRANSFERS' DO NOT CONVEY TITLE AND DO NOT AMOUNT TO TRANSFER, NOR CAN THEY BE RECOGNIZED OR VALID MODE OF TRANSFER OF IMMOVABLE PROPERTY. THE COURTS WILL NOT TREAT SUCH TRANSACTIONS AS COMPLETED OR CONCLUDED TRANSFERS OR AS CONVEYANC E AS THEY NEITHER CONVEY TITLE NOR CREATE ANY INTEREST IN AN IMMOVABLE PROPERTY. THEY CANNOT BE RECOGNIZED AS DEEDS OF TIT LE, EXCEPT TO THE LIMITED EXTENT OF SECTION 53A OF THE TP ACT.' THUS AS CLARIFIED BY THE HON'BLE SC SECTION 53A OF TP A GRANTS A LIMITED PRIVILEGE TO THE TRANSFEREE TO PROTECT IT S RIGHT IN CASE OF UNREGISTERED AGREEMENTS TO SALE. THIS PRIVIL EGE CANNOT BE ABUSED BY THE TRANSFEROR TO DEFRAUD THE I NCOME TAX DEPARTMENT OF REVENUE. THEREFORE, THE SUBMISSIONS OF THE AR ARE NOT ACCEPT ABLE GIVEN THE FACTS OF THE CASE AND THE LAW APPLICABLE T O THESE FACTS. THE AGREEMENTS TO SALE PERTAINING TO A.Y. 19 76-77 & 1981-82 CANNOT BE RECOGNIZED U/S 2(47)(V) OF I.T. AC T, 1961 SINCE INCOME WAS NOT DECLARED, NOR CONDITIONS U/S 53 A OF TPA FULFILLED IN THE CASE OF FIRST 4 PROPERTIES. IT IS HELD THAT THE TRANSFER CAME INTO EFFECT BY THE REGISTERED SAL E DEEDS IN A.Y. 2004-05. SINCE THE SALE DEEDS WERE REGISTERED AFTER 21 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 01/04/2003 THE DEEMING PROVISIONS OF SECTION 50C AR E SQUARELY APPLICABLE TO THIS TRANSFER AS IT CAME INT O EFFECT FROM 01/04/2003. LN VIEW OF THE ABOVE FACTS OF THE CASE, AND THE LAW APPLICABLE TO THESE FACTS DISCUSSED IN DETAIL ABOVE THE SAID PROPERTY SOLD TO MOHAN JOSHI AT HATHI BABU KA AHATA , KACHCHI BASTI, JAIPUR DEVOLVED UPON SHRI ALOK MUKHE RJEE IN HIS INDIVIDUAL CAPACITY AND ONE THIRD, LTCG OF RS.21 ,26,580/- ASSESSED IN HIS HANDS ON TRANSFER OF THIS PROPERTY U/S 50C IS UPHELD. THE AO IS DIRECTED TO TAKE INTO ACCOUNT THE DECLARED INCOME OF THE ASSESSEE OF RS.81,945/- WHILE DETERMI NING THE TAX LIABILITY. REGARDING THE LTCG WITH RESPECT TO THE OTHER FOUR PR OPERTIES IT IS HELD THAT THEY BELONG TO THE HUF OF SHRI ALOK MUKHERJEE AND THE CAPITAL GAINS OF RS.36,12,659/- ON THE TRAN SFER IS TO BE ADDED TO THE INCOME OF THE HUF OF SHRI ALOK MUKH ERJEE AND IS TO BE ADDED THEREIN. THEREFORE, THE ADDITION OF RS.36,12,659/-IS DELETED. 6. NOW THE REVENUE AND ALOK MUKHERJEE ARE IN APPEALS BEFORE US IN ITA NO. 887/JP/2012 & ITA NO. 862/JP/2012, LATE SEEMA M UKHERJEE THROUGH HER LEGAL HEIRS IS IN APPEAL IN ITA NO. 871/JP/2012, SA TKORI CHARITABLE TRUST IN ITA NO. 872/JP/2012 AND REVENUE IN ITA NO. 888/JP/2 012 ARE ALSO IN APPEALS BEFORE US. THE APPEAL FILED BY ALOK MUKHERJEE HAS RA ISED SIX GROUNDS. 22 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. GROUNDS NO. 1,2 AND 3 ARE AGAINST CHALLENGING THE V ALIDITY OF ISSUANCE OF NOTICE U/S 148 OF THE ACT, WHICH HAS NOT BEEN PRESSE D BY THE ASSESSEE, THEREFORE, THE SAME ARE DISMISSED AS NOT PRESSED. 6.1 REGARDING GROUNDS NO. 4 TO 6 OF THE APPEAL OF ALOK MUKHERJEE, THE LD AR HAS SUBMITTED THAT LATE SHRI AVANI KUMAR MUKHER JEE, FATHER OF ASSESSEE (ALOK MUKHERJEE) HAD SOLD 4 LANDS PLOTS OWNED BY MI NOR SON ALOK MUKHERJEE IN THE A.Y. 1976-77 AND ONE LAND AND BUILDING OWNED BY HIM IN A.Y. 1981-82 BY EXECUTION OF SALE AGREEMENTS AND HANDING OVER OF POSSESSION IN 1975 AND 1980: S. NO. NAME OF THE BUYER AND ADDRESS TO TRANSFERRED PROPERTY OWNER OF THE PROPERTY EXECUTING AGREEMENT OF SALE DATE OF AGREEMENT OF SALE AND HANDING OVER THE POSSESSION BY SELLER. DATE OF PRESENTING OF THE SALE DEED BEFORE REGISTRATION AUTHORITY BY BUYER AGREEMENT VALUE RS. A) RAMESH JAIN, 5, HATHI BABU KA BGH, JAIPUR ALOK MUKHERJEE (MINOR) 09/08/1975 A.Y. 1976-77 (SEE PAPER BOOK PAGE NO. 13 TO 14) 05/05/2003 A.Y. 2004-05 (SEE PAPER BOOK PAGE NO. 15 TO 23) 12912/ - B) NARESH KUMAR PUROHIT (SECOND BUYER FROM ORIGINAL BUYER SMT. KUSUM DEVI) 10, HATHI BABU KA BAGH, JAIPUR. ALOK MUKHERJEE (MINOR) 28/05/1975 A.Y. 1976-77 (SEE PAPER BOOK PAGE NO. 24 TO 30) 07/07/2003 A.Y. 2004-05 (SEE PAPER BOOK PAGE NO. 31 TO 36) 12667/ - 23 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. C) RAJKUMAR (NOMINEE OF SHIV RATAN, ORIGINAL BUYER), 2 HATHI BABU KA BAGH, JAIPUR. ALOK MUKHERJEE (MINOR) 01/12/1975 A.Y. 1976-77 (SEE PAPER BOOK PAGE NO. 37 TO 39) 14/08/2003 A.Y. 2004-05 (SEE PAPER BOOK PAGE NO. 40 TO 45) 6600/ - D) MAHAVEER PRASAD (NOMINEE OF SHIHV RATAN, ORIGINAL BUYER), 2, TAHI BABU KA BAGH, JAIPUR ALOK MUKHERJEE (MINOR) - DO - 14/08/2003 A.Y. 2004-05 (SEE PAPER BOOK PAGE NO. 46 TO 51) 8680/ - E) SHRI MOHAN JOSHI (ERSTWHILE PARTNER OF M/S MAHAVEER HOTEL, WHICH BOUGHT THE ASSET ORIGINALLY), HATHI BABU KA AHATA, KACHHI BASTI, JAIPUR. LATE SHRI AVANI KUMAR MUKHERJEE 01/08/1980 A.Y. 1981-82 (SEE PAPER BOOK PAGE NO. 52 TO 57) 31/03/2003 A.Y. 2003-04 (SEE PAPER BOOK PAGE NO. 58 TO 66) 100000/ - HE FURTHER SUBMITTED THAT ORIGINAL BUYERS APPEARIN G IN AGREEMENTS HAD FURTHER TRANSFERRED THESE CAPITAL ASSETS TO NEW PART IES IN SOME OF THE CASES AND THE REGISTRATION HAS BEEN DONE IN THE NAME OF F INAL BUYERS. BUYERS/THEIR SUBSEQUENT BUYERS/LEGAL NOMINEES OF THESE CAPITAL A SSETS, HAD ALREADY BUILT HOUSES/COMMERCIAL ESTABLISHMENTS ON THE IMPUGNED LA ND PLOTS AND WERE OCCUPYING THE PROPERTIES AND USING ELECTRICITY, WATE R, CIVIC AMENITIES ETC. ENJOYING FULL OWNERSHIP RIGHTS AT THE TIME OF REGIS TRATION OF SALE DEED IN SUB- 24 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. REGISTRAR OFFICE. SHRI ALOK MUKHERJEE (ASSESSEE) AS SELLER IN THE CASE OF RAMESH JAIN, NARESH KUMAR PUROHIT, RAJKUMAR AND MAH AVEER PRASAD AND SHRI ALOK MUKHERJEE, SHRI AROOP MUKHERJEE AND LATE SMT. SEEMA KUKHERJEE, LEGAL HEIRS ON THE CAPACITY OF SUBSTITUTED EXECUTAN TS, IN PACE OF LATE SHRI AVANI KUMAR MUKHERJEE IN THE CASE OF MOHAN JOSHI SU CCESSOR TO M/S MAHAVEER HOTEL, ORIGINAL BUYER HAD COMPLETED THE RE GISTRATION FORMALITIES BEFORE THE SUB-REGISTRAR OF JAIPUR IN THESE PROPERT IES. THE ASSESSEE HAD FILED INCOME TAX RETURN U/S 139(4) OF THE ACT FOR A.Y. 20 04-05 ON 21/3/2005 IN THE OFFICE OF LD ASSESSING OFFICER. IN A.Y. 1976-77, LA TE AVANI KUMAR MUKHERJEE HAD SOLD THREE LAND PLOTS BEARING NOS. 2,5 AND 10 L OCATED IN HATHI BABU KA BAGH, STATION ROAD, JAIPUR BY EXECUTING AGREEMENTS ACCOMPANIED BY HANDING OVER POSSESSION. REGISTRATION OF THESE AGRE EMENT WAS KEPT PENDING TILL THE ATTAINMENT OF MAJORITY BY ALOK KUMAR MUKHE RJEE. ORIGINAL BUYER SMT. KUSUM DEVI OF LAND PLOT NO. 10 HAD FURTHER SOLD/TRA NSFERRED THE PLOT TO MR. NARESH KUMAR PUROHIT. SIMILARLY, SHRI SHIV RATAN. B UYER OF PLOT NO. 2, HATHI BABU KA BAGH HAD FURTHER NOMINATED/GIFTED THE PLOT AFTER DIVISION IN TWO PARTS ONE IN FAVOUR OF MAHAVEER PRASAD AND OTHER TO RAJ KUMAR. BUYERS/OWNERS OF THESE PLOTS HAD BUILT A HOUSE, GOT ELECTRICITY/WATER CONNECTION ON THE SOLD LAND BEFORE REGISTRATION OF PLOTS WITH SUB-REGISTRAR. 25 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. THE LD ASSESSING OFFICER COMPUTED THE LONG TERM CAPI TAL GAIN BY TAKING STAMP VALUE AS SALE CONSIDERATION AND INDEXED COST OF FMV AS ON 01/4/1981. THOUGH THE ASSESSEE HAD SOLD LAND PLOT ONLY. BUT THE VALUE OF SUBSEQUENT CONSTRUCTION BY THE BUYERS HAVE ALSO BEEN WRONGLY CO NSIDERED BY LD A.O. AS PART OF SALE CONSIDERATION OF ASSESSEE, FOR THE PUR POSE OF WORKING OUT CAPITAL GAINS. THE LD CIT(A) HAD HELD THE ABOVE PROPERTIES BELONGING TO ALOK MUKHERJEE (HUF) AND ACCORDINGLY DELETED THE ADDITIO N IN THE HANDS OF INDIVIDUAL, WHILE UPHOLDING THE SAME IN HANDS OF HUF . 6.2 THE LD AR FURTHER SUBMITTED THAT MAHAVEER HOTEL, A PARTNERSHIP FIRM HAVING LATE SHRI RAMRIKH JOSHI AND HIS SON SHRI MOH AN JOSHI AS PARTNERS, OCCUPIED THIS PROPERTY, MEASURING 488.49 SQ.M SINCE 1959 AS TENANT. LATE SHRI AVANI KUMAR MUKHERJEE SOLD THIS PROPERTY FOR R S. 100000/- TO MAHAVEER HOTEL BY EXECUTING AN AGREEMENT ON 01/08/1980 SHRI AVANI KUMAR MUKHERJEE EXPIRED BEFORE THE REGISTRATION AND THE R EGISTRATION OF PROPERTY WAS GOT DONE SUBSEQUENTLY BY THE SUCCESSORS AS SUBST ITUTED EXECUTANTS I.E. SMT. SEEMA MUKHERJEE, SHRI ALOK KMKHERJEE AND SHRI AROOP MUKHERJEE ON 31/3/2003. ON THE BUYERS SIDE, SHRI RAMRIKH JOSHI , ONE OF THE TWO PARTNERS ALSO EXPIRED AND ON DISSOLUTION OF THE FIRM, SHRI MOHAN JOSHI, SON OF RAMRIKH JOSHI, BECAME SOLE OWNER OF THE CAPITAL ASSE T. SUB-REGISTRAR, JAIPUR 26 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. VALUED THE PROPERTY LAND AND HOTEL BUILDING FOR RS. 68,88,625/- AS ON 31/3/2003 FOR THE PURPOSE OF STAMPS. THE LD ASSESSIN G OFFICER HAD COMPUTED THE LONG TERM CAPITAL GAIN BY TAKING RS. 68,88,625/ - AS SALE CONSIDERATION AND RS. 5,08,884/- AS INDEXED COST OF THE FMV AS ON 01/4/1981, WORKING OUT RS. 63,79,741/- AS LONG TERM CAPITAL GAIN. OUT OF T HIS RS. 21,26,580/- (1/3 RD SHARE) WAS ADDED TO BE RELATING TO SHRI ALOK MUKHERJ EE. THE VALUE OF SUBSEQUENT CONSTRUCTION OF HOTEL BY THE BUYER AFTER 01/8/1980 TO 31/3/2003 HAS ALSO BEEN WRONGLY CONSIDERED BY LD A.O. AS PART OF SALE CONSIDERATION OF ASSESSEE, FOR THE PURPOSE OF WORKING OUT CAPITAL GAI NS. 6.3 HE FURTHER ARGUED THAT THE LD ASSESSING OFFICER HAD RELIED ON THE DEFINITIONS UNDER DIFFERENT LAWS AND APEX COURT JUD GMENT IN THE CASE OF SURAJ LAMPS (SUPRA) EXCEPT THE ONE GIVEN IN INCOME TAX LA W IN HIS ASSESSMENT ORDER TO HOLD THAT TRANSFER HAD TAKEN PLACE IN A.Y. 2004-05.THE LD AR FURTHER REITERATE THE OBSERVATIONS MADE BY THE ASSESSING OF FICER IN HIS ASSESSMENT ORDER ON TRANSFER OF PROPERTY ACT, 1882, SECTION 23 OF THE INDIAN REGISTRATION ACT, 1908 AND RAJASTHAN STAMP DUTY ACT , 1998, THE LD ASSESSING OFFICER HEAVILY RELIED ON THE HONBLE APEX COURT DE CISION IN THE CASE OF SURAJ LAPMS AND INDUSTRIES PVT. LTD. VS. STATE OF HARYANA (SUPRA) WHEREIN IT HAS BEEN HELD THAT IMMOVABLE PROPERTY CAN BE LEGALLY AN D LAWFULLY 27 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. TRANSFERRED/CONVEYED ONLY BY A REGISTERED DEED OR C ONVEYANCE. THE ASSESSEE HAD SUBMITTED BEFORE THE ASSESSING OFFICER ON 19/12 /2011 THAT PROPERTY REFERRED BY HIM FOR COMPUTATION OF LONG TERM CAPITA L GAIN HAD ALREADY BEEN TRANSFERRED IN TERMS OF SECTION 2(47) DURING A.Y. 1 976-77 AND 1981-82, THEREFORE, THESE CANNOT BE TREATED AS TRANSFER FOR CAPITAL GAINS IN A.Y. 2004- 05. SIMILAR ARGUMENTS WERE MADE BY THE AR OF THE ASS ESSEE BEFORE THE LD CIT(A) ON 24/08/2012 DURING THE APPELLANT PROCEEDING S. HE FURTHER ARGUED THAT THE LD ASSESSING OFFICER SIMPLY BRUSHED ASIDE THE SUBMISSIONS OF ASSESSEE TO CONSIDER DEFINITION U/S 2(47), IN HIS 1 6 PAGE ASSESSMENT ORDER AND DID NOT MAKE ANY COMMENT/OPINION OF THE DEFINIT ION UNDER INCOME TAX ACT. THE LD ASSESSING OFFICER EXTENSIVELY QUOTED TH E DEFINITIONS UNDER T.P. ACT, 1882, REGISTRATION ACT, 1908 AND RAJASTHAN STA MP ACT, 1998. FURTHER HE PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SURAJ LAMPS (SUPRA) AND HELD THAT TRANSFER HAD TAKEN PLAC E AT THE TIME OF REGISTRATION ONLY AND NOT EARLIER. 6.4 HE FURTHER ARGUED THAT THE LD CIT(A) HAD DISCUS SED THE DEFINITION U/S 2(47)(V) OF THE ACT. HOWEVER, THE LD CIT(A) TOOK A TU RN THAT THOSE OWNERS I.E. SHRI ALOK MUKHERJEE AND LATE SHRI AVANI KUMAR MUKHE RJEE MIGHT HAD NOT DISCLOSED ANY CAPITAL GAIN IN THE ITRS OF 1976-77 A ND 1981-82, THEREFORE THE 28 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. TRANSFER WOULD BE DEEMED FOR A.Y. 2004-05 AND CAPITA L GAIN TAX WOULD BE PAYABLE NOW AS THE SAME WAS NOT PAID EARLIER. THE PRES UMPTION OF THE LD CIT(A) IS UNILATERAL, THEREFORE, HE FURTHER RELIED O N THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SURAJ LAPMS (SUPRA) AN D JUSTIFIED THE TRANSFER IN A.Y. 2004-05 IN CONTRAST TO THE DEFINITION U/S 2 (47). IT IS CONTRARY TO THE PROVISIONS OF INCOME TAX LAW AS PER SECTION 45 OF THE ACT, ANY CAPITAL GAIN IS TO BE COMPUTED IN THE PREVIOUS YEAR, IN WHICH THE TR ANSFER GIVING RISE TO THE ACCRUAL OF THE CAPITAL GAIN IN QUESTION TOOK PLACE. HE FURTHER RELIED ON THE DECISION IN THE CASE OF CIT VS. VIMAL CHAND SURANA ( 2004) 269 ITR 288, 289 (RAJ.) ON TRANSFER OF AGREEMENT TO SELL AND CAPITAL GAIN. HE HAS FURTHER DRAWN OUR ATTENTION ON SECTION 2(47) OF THE ACT AND ARGUE D THAT ALL THE TRANSACTIONS ARE COVERED U/S 2(47) OF THE ACT. THE AGREEMENT IN 1 975 WITH SH./SHRI RAMESH JAIN, NARESH KUMAR PUROHIT, RAJKUMAR AND MAH AVEER PRASAD AND DATED 01/08/1980 MAHAVEER HOTEL THROUGH ITS PARTNER SHRI MOHAN JOSHI WERE ADMITTEDLY CONTRACTS IN WRITING EXECUTED BY LATE SH RI AVANI KUMAR MUKHERJEE FOR THE CONSIDERATION AND IN PURSUANCE OF SUCH AGRE EMENT, THE BUYERS HAVE BEEN PLACED IN POSSESSION OF THE PROPERTY, THEREFOR E, PART PERFORMANCE AS PER SECTION 53A OF THE T.P. ACT HAS BEEN SATISFIED IN THE PRESENT CASE. THEREFORE, PROPERTY AS DEEMED TO HAVE BEEN TRANSFERR ED WITHIN THE MEANING 29 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. OF SECTION 2(47)(V) OF THE ACT. MERE DEFERRING PART OF THE CONSIDERATION TILL THE REGISTRATION UNDER THE REGISTRATION ACT, 1908 WO ULD NOT AFFECT THE ACCRUAL OF CAPITAL GAIN IN ANY MANNER. A SELLER MAY ACCOMMO DATE THE BUYER BY GIVING CREDIT, BUT REVENUE WOULD NOT WAIT FOR COLLECTION OF TAX FROM THE SELLER ON CAPITAL GAINS TILL RECEIPT OF CONSIDERATION BY THE SELLER. IN JASBIR SINGH SARKARIA (2007) 294 ITR 196 (AAR), THE AUTHORITY FOR ADVANCE RULING RULED THAT TAXABILITY OF CAPITAL GAIN CANNOT BE POSTPONED TILL THE RECEIPT OF FINAL CONSIDERATION. THE HONBLE ITAT AHMEDABAD BENCH IN TH E CASE OF AMIT KUMAR AMBALAL SHAH VS. ITO A.Y. 2009-10 IN ITA NO. 1 281/AHD/2013 ORDER DATED 30/10/2014 HAS CONSIDERED THE HON'BLE SUPREME COURT DECISION OF SURAJ LAMPS (SUPRA) WHEREIN THE HON'BLE SUPREME COUR T HAS MADE IT CLEAR THAT JUDGMENT ITSELF NOT APPLICABLE ON OLD CASES OF APPELLANT AND ALSO THIS DECISION IS NOT TO APPLY ON BONAFIDE GENUINE TRANSA CTIONS.. HE FURTHER RELIED ON THE DECISION IN THE CASE OF SANDHYABEN VS. ITO ( 2013) 35 TAXMANN.COM 472 (AHD TRIB) ORDER DATED 08/02/2013 WHEREIN THE HON BLE BENCH HAS HELD THAT CAPITAL GAIN IS TO BE TAXED IN THE A.Y. 2002-0 3 WHEN THE CONSIDERATION WAS RECEIVED AND POSSESSION WAS GIVEN IN LINE WITH THE SECTION 2(47)(V) AND NOT IN A.Y. 2004-05 WHEN THE SALE DEED WAS PRESENTED BEFORE SUB-REGISTRAR FOR REGISTRATION. SURAJ LAMPS DECISION OF HONBLE A PEX COURT WAS DELIVERED IN 30 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. DIFFERENT CONTEXT AND INCOME TAX PROVISIONS WERE NOT ADJUDICATED UPON, THEREFORE, THE HONBLE ITAT DIRECTED TO ASSESS THE C APITAL GAIN FOR A.Y. 2002- 03 U/S 150 OF THE ACT. HE HAS FURTHER DRAWN OUR ATTE NTION OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SUN EN GINEERING WORKS (P) LTD. (1992) 198 ITR 297 ON HOW TO INTERPRET THE RULING OF THE DECISION OF HONBLE APEX COURT. IN CASE OF SANJEEV LAL & ANR. VS. CIT & ANR. (2014) 365 ITR 389 (SC) THE HON'BLE SUPREME COURT HAS CONSIDERED THE I SSUE OF TRANSFER U/S 2(47), WHICH IS SQUARELY APPLICABLE IN THE CASE OF ASSESSEE. HE FURTHER RELIED ON THE FOLLOWING CASE LAWS:- (I) CIT VS. HORMASJI VAID 250 ITR 542. (II) CIT VS. RAJASTHAN MIRROR MFG. CO. (2002) 125 TA XMAN 1. (III) CIT VS. VISHNU TRADING & INVESTMENT CO. (2003 ) 128 TAXMAN 777. 6.5 THE LD AR FURTHER ARGUED THAT SECTION 50C IS NO T APPLICABLE IN THE CASE OF ASSESSEE AS THIS SECTION BROUGHT IN THE STATUTE W.E.F. A.Y. 2003-04 IS AIMED TO SUBSTITUTE THE VALUATION ASSESSED BY THE S UB-REGISTRAR IN THE CASE THE CONSIDERATION RECEIVED BY ASSESSEE IS LESSER TH AT SUCH VALUATION AND TRANSFER ON THE BASIS OF AGREEMENT TO SELL IS COVE RED W.E.F. 01/10/2009 BY EXTENDING THE WORDS ASSESSED OR ASSESSABLE. THE LD AS SESSING OFFICER 31 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. SUBSTITUTED THE CONSIDERATION AT RS. 36,12,659/- IN PLACE OF ACTUAL CONSIDERATION OF RS. 40,859/- IN THE CASE OF RAMESH JAIN, NARESH KUMAR PUROHIT, RAJKUMAR AND MAHAVEER PRASAD AND RS. 68,88 ,625/- IN PLACE OF ACTUAL CONSIDERATION OF RS. 100000/- IN THE CASE OF MOHAN JOSHI. THESE AGREEMENT WERE MADE PRIOR TO INSERTION OF SECTION 50 C IN THE STATUTE, THEREFORE, SECTION 50C IS NOT APPLICABLE ON THESE T RANSACTIONS MADE ON AGREEMENT TO SELL, FOR WHICH HE RELIED ON THE FOLLOWI NG DECISIONS: (I) NAVNEET THAKKAR VS. ITO (2008) 110 ITD 525/(2007) 112 TTJ 76 (JODH). (II) M. SIVA PARVATHI & ORS. VS. ITO (2010) 7 ITR (TR IB) 468 (VISAKHA). (III) CIT-1, COIMBATORE VS. R.SUGANTHA RAVINDRAN 35 2 ITR 488 (MADRAS) (IV) RAJSHREE BIHANI VS. ITO, WARD 36(1), KOLKATA (2 011) 48 SOT 594/16 TAXMANN.COM 44 (KOL). THE HONBLE COORDINATE BENCH HAD DECIDED THAT AMENDM ENT MADE IN SECTION 50C BY INSERTING WORK ASSESSABLE IN ADDITION TO A DOPTED OR ASSESSED W.E.F. 01/10/2009. IT IS FURTHER ARGUED THAT DATE OF REGIS TRATION IN CASE OF MOHAN JOSHI I.E. PROPERTY SITUATED AT HATHI BABU KA AHATA , JAIPUR (ITEM NO. 5) WAS WRONGLY ASSESSED IN A.Y. 2004-05 WHEREAS THE TRANSFE R WAS EXECUTED ON 31/3/2003. THE LD CIT(A) HAS CONFIRMED THAT THIS CAPI TAL GAIN IN A.Y. 2004-05 ON THE BASIS OF STAMP DUTY WAS PAID ON 2/4/2003 AND COPY OF REGISTRY WAS 32 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. COLLECTED ON 02/4/2003. THE LD AR ARGUED THAT AS PER SECTION 47 OF THE REGISTRATION ACT, A REGISTERED DOCUMENT SHALL OPERA TE FROM THE TIME FROM WHICH, IT COULD HAVE COMMENCED TO OPERATE IF NO REGI STRATION THEREOF HAD BEEN REQUIRED OR MADE AND NOT FROM THE TIME OF ITS REGISTRATION. THEREFORE, THE LD CIT(A) WAS NOT JUSTIFIED THE ASSESSABILITY OF YEAR I.E. A.Y. 2004-05. ACCORDINGLY HE PRAYED TO DELETE THE ADDITION CONFIR MED BY THE LD CIT(A). 7. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE ASSESSING OFFICER. HOWEVER ON APPEAL FILED BY THE RE VENUE ON STATUS OF HUF WITH RESPECT TO PROPERTY SHOWS AT SR. NO. 1 TO 4 I.E . PLOT NO. 5, PLOT NO. 10, PLOT NO. 2 AND AGAIN PLOT NO. 2 HAS ARGUED THAT THE ASSESSEE HAS NOT CHALLENGED THE ASSESSMENT IN THE HANDS OF INDIVIDUA L AND NO APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE STATUS DECID ED HUF BY THE LD CIT(A). THEREFORE, THE SAME IS TO BE ASSESSED UNDER THE STAT US INDIVIDUAL AS THE PROPERTIES WERE SOLD BY SHRI ALOK MUKHERJEE IN INDIV IDUAL CAPACITY, WHICH IS EVIDENT FROM THE REGISTERED DOCUMENTS AND CLAIMED B Y THE ASSESSEE AS OWN PROPERTY. THERE IS NO REFERENCE OF HUF IN ANY DOCUME NT AND ASSESSEE ALSO HAD NOT CLAIMED ANY WHERE BEFORE ANY AUTHORITY THAT THESE PROPERTIES WERE BELONGED TO HUF. THEREFORE, THE LD DR ARGUED THAT TH E STATUS OF THIS 33 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. ASSESSABILITY OF CAPITAL GAIN IS TO BE TAXED AS IND IVIDUAL NOT HUF. THE LD AR OF THE ASSESSEE HAS NOT OBJECTED ABOUT THE STATUS. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE ASSESSEE H AS CHALLENGED THE JURISDICTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE PROVISIONS OF SECTION 2(47)(V) OF THE ACT IS APPLICABLE ON THIS T RANSFER, SECTION 50C IS NOT APPLICABLE ON THIS TRANSACTION AND YEAR OF ASSESSAB ILITY IS A.Y. 2003-04 AND NOT FOR A.Y. 2004-05. THE ASSESSEE MADE FIVE TRANSAC TIONS AS MENTIONED BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER. THE F IRST PROPERTY IS PLOT NO. 5, BAIBHAV NAGAR, HATHI BABU KA BAGH, STATION ROAD JAI PUR. THE ASSESSEE CLAIMED THAT THE TRANSFER TOOK PLACE ON 09/08/1975 BY LATE SHRI AVANI KUMAR MUKHERJEE FATHER OF SHRI ALOK MUKHERJEE IN THE CAPA CITY OF GUARDIAN AS ALOK MUKHERJEE WAS MINOR ON 09/8/1975. THE SECOND PARTY WAS SHRI RAMESH JAIN. THE TOTAL AREA DISCLOSED IN THE ALLEGED AGREEMENT TO SELL AT 269 SQ.YARD WITH CONSIDERATION OF RS. 12,912/-. THE FATHER OF THE AS SESSEE RECEIVED ADVANCE OF RS. 6,456/- I.E. 50% OF THE SALE CONSIDERATION AND REMAINING AMOUNT OF RS. 6456/- WAS TO BE PAID AT THE TIME OF REGISTRY. IT HA S BEEN MENTIONED IN THE SALE AGREEMENT THAT MINORSHIP WOULD BE COMPLETED ON 11 TH FEBRUARY, 1977. THE ATTAINMENT OF MAJORITY WOULD BE INFORMED TO THE S ECOND PARTY THEREAFTER 34 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. IMMEDIATELY THE REGISTRY OF THE SAID PROPERTY WOULD BE MADE BY PAYING REMAINING AMOUNT OTHERWISE THE ADVANCE GIVEN BY THE PURCHASER WOULD BE SEIZED AND AGREEMENT TO SELL WOULD BE TREATED AS CAN CELLED. IF THE ASSESSEE ALOK KUMAR MUKHERJEE AFTER ATTAINING THE MAJORITY R EFUSED TO SELL THIS LAND TO THE SECOND PARTY, THE SECOND PARTY HAS RIGHT TO REF UND THE ADVANCE MONEY AND COST OF CONSTRUCTION OF HOUSE FROM THE FIRST PA RTY. AS PER ITEM NO. 4 OF THIS AGREEMENT WHATEVER CONSTRUCTION WOULD BE PERTAIN ED TO THE SECOND PARTY AND THERE WILL BE NO ADDITIONAL AMOUNT WOULD BE PAID FOR CONSTRUCTION. THE SECOND PARTY HAS TAKEN OVER THE POSSESSION OF TH E PROPERTY AS PER AGREEMENT TO SELL. ON VERIFICATION OF THE REGISTRAT ION DEED DATED 05 TH MAY, 2003 MADE BETWEEN SHRI ALOK MUKHERJEE AND SHRI RAMES H JAIN, IT IS REVEALED THAT THE ASSESSEE GOT RS. 6,456/- ON THIS DATE FROM THE PURCHASER AND SHRI ALOK MUKHERJEE RECEIVED IT. THE PURCHASER RIGHTFULLY GOT THE POSSESSION ON LAND AS WELL AS CONSTRUCTION THEREON ON THE DATE OF REGISTRATION I.E. ON 05/5/2003. THE STAMP AUTHORITY HAS CALCULATED THE ST AMP VALUE OF THIS PROPERTY AT RS. 10,81,961/-. SHRI ALOK MUKHERJEE HA S TRANSFERRED THIS PROPERTY IN CAPACITY OF INDIVIDUAL. 8.1 THE SECOND PROPERTY I.E. PLOT NO. 10 HATHI BABU KA BAGH HAS CLAIMED BY THE ASSESSEE WAS TRANSFERRED ON 25/08/1975 BY SHR I LATE AVANI KUMAR 35 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. MUKHERJEE AS A GUARDIAN ON BEHALF OF ALOK KUMAR MUK HERJEE (MINOR) TO SMT. KUSUM DEVI, W/O- MADAN LAL, THE AREA IS 318.5 SQ.YA RD FOR RS. 25,880/-. THE FATHER OF THE ASSESSEE HAD RECEIVED RS. 11,000/- AS ADVANCE. REMAINING AMOUNT OF RS. 14,480/- WOULD BE PAID AT THE TIME OF REGISTRY. ANY LEGAL EXPENSES ON TRESPASSERS WOULD BE BORNE BY THE FIRST PARTY. THE REMAINING CONDITIONS WERE SAME THAT ABOUT ATTAINMENT OF MAJORI TY INFORMATION THEREOF, THE REMAINING AMOUNT PAID AND REGISTRY IS TO BE MAD E AND PERMISSION OF CANCELLATION OF AGREEMENT AS GIVEN FOR PROPERTY NO. 5. THIS PLOT WAS SUBSEQUENTLY SOLD ON 20/1/1988 BY PURCHASER SMT. KU SUM DEVI TO SHRI UMESH CHANDRA PUROHIT INCLUDING CONSTRUCTION THEREO N FOR CONSIDERATION OF RS. 38,000/-. THIS AGREEMENT SHOWS THAT SHE PURCHASE D THIS PLOT FROM SHRI AVANI KUMAR MUKHERJEE FOR RS. 25,480/- PAID RS. 110 0/- TO HIM AND GOT POSSESSION ON IT. SHE GOT CONSTRUCTED BOUNDARY ON I T AND ALSO ON 25/1/1985 RS. 2000/- WAS PAID TO SHRI ALOK KUMAR MUKHERJEE AND REMAINING AMOUNT HAS BEEN SHOWN AT RS. 12,480/-. SMT. KUSUM DEVI RECE IVED RS. 25,520/- OUT OF TOTAL CONSIDERATION OF RS. 38,000/- AT THE TIME OF AGREEMENT AND IT WAS DECIDED THAT REMAINING AMOUNT OF RS. 12,480/- WOULD BE PAID AT THE TIME OF REGISTRY TO THE ORIGINAL OWNER I.E. SHRI ALOK KUMAR MUKHERJEE. FINALLY THE REGISTRY OF THIS PLOT WAS GOT ON 07 TH JULY, 2003 BY SHRI ALOK KUMAR MUKHERJEE 36 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. IN THE CAPACITY OF INDIVIDUAL IN THE NAME OF SHRI N ARESH KUMAR PUROHIT, SON OF SHRI PANNA LAL PUROHIT. THERE WAS A REFERENCE IN THIS REGISTRATION DEED ABOUT THE PARTITION ORDER DATED 30/05/1963, THE MINORITY OF THE ASSESSEE BUT NO REFERENCE HAS BEEN MADE ON AGREEMENT TO SELL DATED 28/8/1975 MADE WITH SMT. KUSUM DEVI WHEREAS SHE HAD MADE AGREEMENT TO S ALE ON 20/01/1988 WITH SHRI UMESHCHAND PUROHIT IN THE REGISTRY MADE IN THE NAME OF NARESH KUMAR PUROHIT AS PURCHASER (SECOND PARTY) AND CLAIM ED IN THIS AGREEMENT FOR REGISTRY THAT HIS FATHER WAS MADE AGREEMENT TO SALE WITH THE SECOND PARTY I.E. NARESH KUMAR PUROHIT. HOWEVER, ON EXAMINATION O F ALLEGED AGREEMENT TO SELL, SMT. KUSUM DEVI WAS SECOND PARTY. THEREAFTER TH E AGREEMENT TO SELL HAD MADE BETWEEN SMT. KUSUM DEVI TO UMESH CHAND PURO HIT, THEREFORE, THERE IS NO CONNECTION WITH THE PURCHASER FROM THE O RIGINAL AGREEMENT TO SELL DATED 28/8/1975. THE OUTSTANDING AMOUNT RECEIVED AS PER REGISTRY DEED DATED 07 TH JULY, 2003 AT RS. 12,667/- WHEREAS OUTSTANDING CON SIDERATION AS PER ORIGINAL ALLEGED AGREEMENT TO SELL WAS RS. 14,48 0/-. THE STAMP AUTHORITY HAS CALCULATED THE STAMP VALUE OF THIS PROPERTY AT RS. 7,37,875/-. 8.2 THE THIRD PROPERTY I.E. PLOT NO. 2, HATHI BABU K A BAGH, STATION ROAD JAIPUR WAS CLAIMED TO BE TRANSFERRED ON AGREEMENT TO SELL ON 01/12/1975 BY SHRI AVANI KUMAR MUKHERJEE FATHER OF THE ASSESSEE A LOK KUMAR MUKHERJEE AS 37 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. A GUARDIAN IN THE NAME OF SHRI SHIV RATAN, SON OF S HRI RAM CHANDRA. THE AREA OF THE PROPERTY WAS 382 SQ.YARD AND CONSIDERATI ON WAS AT RS. 15,280/-. FATHER OF THE ASSESSEE RECEIVED RS. 7,640/- AS ADVA NCE. THE REMAINING AMOUNT OF RS. 7,640/- WAS TO BE PAID AT THE TIME OF REGISTRY. THE REMAINING TERMS AND CONDITIONS OF THE ALLEGED AGREEMENT TO SE LL WERE SAME AS GIVEN FOR THE PROPERTY NO. 5 AND 10 BUT IT WAS STATED THAT THI S PROPERTY WAS OWNED BY SHRI ALOK KUMAR MUKHERJEE THROUGH DECREE NO. 16 OF SENIOR CIVIL JUDGE, COURT NO. 1 ON 31/7/1973. THESE PROPERTIES WERE GOT R EGISTERED THROUGH DEED DATED 14/8/2003 BY SHRI ALOK KUMAR MUJHERJEE ( SELLER) TO SHRI RAJKUMAR, SON OF SHRI MAHAVEER PRASAD WHEREIN DECREE NO. 11/63 DATED 30/05/1969 HAS BEEN REFERRED BUT THERE IS NO MENTIO NED ABOUT THE DECREE MENTIONED IN ALLEGED AGREEMENT TO SELL DATED 31/7/1 973 IN DEED OF REGISTRATION. THE REGISTRY WAS MADE BY THE ASSESSEE I N THE NAME OF SHRI RAJ KUMAR AND SHRI SHIV RATAN ALLEGED PURCHASER AS PER AGREEMENT TO SELL DATED 01/12/1975 HAS BEEN SHOWS AS BROTHER OF THE PURCHASE R I.E. SHRI RAJKUMAR. THE OUTSTANDING AMOUNT WAS RECEIVED BY THE ASSESSEE R S. 7,640/- FROM THE PURCHASER AT THE TIME OF REGISTRY. IT WAS FURTHER ME NTIONED IN ITS PAGE NO. 3 OF THE REGISTRY DEED THAT WHEREAS THIS REMAINING CON SIDERATION HAS BEEN SHOWN RS. 6600/- ON PAGE NO. 4 OF THE SAME REGISTRY DEED AND REAL 38 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. OWNERSHIP HAS BEEN GIVEN ON THE DATE OF REGISTRY TO SHRI RAJKUMAR AS PER THIS DEED. THE STAMP AUTHORITY HAS CALCULATED THE ST AMP VALUE OF THIS PROPERTY AT RS. 8,02,627/-. 8.3 THE ANOTHER REGISTRY OF THIS PLOT WAS MADE BY THE ASSESSEE IN THE NAME OF SHRI MAHAVEER PRASAD, SON OF SHRI RAM CHAND RAJI VIDE AGREEMENT DATED 14/8/2003. THE AREA HAS BEEN SAME AND STAMP VA LUE ASSESSED BY THE STAMP AUTHORITY AT RS. 9, 90,196/-. THE AREA MENTION ED IN THE DEED OF REGISTRY AT SAME PURCHASE NAMELY SHRI MAHAVEER PRAS AD HAS BEEN SHOWN NATURAL BROTHER OF SHIV RATAN. THE REMAINING CONSIDE RATION AGAINST THE ALLEGED AGREEMENT TO SELL DATED 01/12/1975 HAS BEEN SHOWN AT RS. 7640/- WHEREAS ON PAGE NO. 4 OF CONVEYANCE REMAINING CONSI DERATION HAS BEEN SHOWN AT RS. 8680/-. THE ASSESSEE HAS CLAIMED AT THE TIME OF DEED THAT HE IS SOLE OWNER OF THIS PLOT AND NOW AS PER THIS DEED HE T RANSFERRED THIS PLOT TO SHRI MAHAVEER PRASAD AND HANDED OVER THE POSSESSION ON IT AT THE TIME OF REGISTRATION. 8.4 THE PROPERTY SITUATED AT HATHI BABU KA AHATA, KA CHHI BASTI, JAIPUR WAS ALLEGED TO BE SOLD THROUGH THE AGREEMENT TO SELL DA TED 01/8/1980 BY THE FATHER OF THE ASSESSEE SHRI AVANI KUMAR MUKHERJEE O N 1 ST SEPT. 1980 TO MAHAVEER HOTEL THROUGH ITS PARTNER RAM RIKH JOSHI A ND MOHAN LAL JOSHI. THE 39 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. SECOND PARTY WAS ENJOYING POSITION AS TENANT SINCE 1 959 ON A RENT OF RS. 165 PER MONTH, WHICH WAS SUBSEQUENTLY INCREASED TO RS. 3 30 PER MONTH W.E.F. 01/1/1980. SHRI AVANI KUMAR MUKHERJEE HAS MADE A AG REEMENT TO SELL FOR SAID PROPERTY INCLUDING LAND, BUILDING, FIXTURE THE REON ALONGWITH MARKETABLE TITLE THEREOF TO THE PARTY OF THE SECOND PART FOR A CONSIDERATION OF RS. 1 LAC. RS. 30,000/- WAS RECEIVED AS ADVANCE TOWARDS THE SAID PRICE FROM THE PARTY OF THE SECOND PART ON EXECUTION OF THE INDENTURE. I N TERMS AND CONDITIONS IN CLAUSE (B) OF THIS AGREEMENT IT WAS STATED THAT THE PARTY OF THE FIRST PART SHALL WITHIN 12 MONTHS FROM THE DATE OF THIS INDENTURE SHA LL EXECUTE AND REGISTER THE SALE DEED OF THE SAID PROPERTY ALONGWITH MARKETA BLE TITLE AND ALL NECESSARY RIGHTS OF OWNERSHIP IN FAVOUR OF THE PARTY OF THE SECOND PART BEFORE THE SUB-REGISTRAR, JAIPUR AND SHALL RECEIVE THE BALANCE PRICE OF RS. 70,000/- FROM THE PARTY OF SECOND PART AT THE TIME OF THE EXECUTION AND REGISTRATION OF THE SAID SALE DEED BEFORE SUB-REGIS TRAR, JAIPUR. AS PER CLAUSE (D) OF THIS ALLEGED AGREEMENT TO SELL THE PARTY OF THE FIRST PART SHALL NOT CHARGE OR RECEIVE ANY RENT FROM THE PARTY OF THE SE COND PART ON THE SAID PROPERTY OF WHICH HE IS A TENANT ON AND FROM THE EXE CUTION OF THIS INDENTURE. THE FIRST PARTY HAD ALLOWED TO THE SECOND PARTY TO US E SAID PROPERTY FOR THEIR HOTEL BUSINESS OR OTHERWISE. AS PER CLAUSE (G) OF TH IS AGREEMENT TO SELL IF ANY 40 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. DEFECT ARISES IN TRANSFER OF THIS PROPERTY, THE FIR ST PARTY WOULD REFUND ADVANCE OF RS. 30,000/- AND HE IS ENTITLED TO RECEIVE RENT @ 330 PER MONTH. AS PER ITEM NO. (I) THE PARTY OF FIRST PART SHALL DEFEND A T HIS OWN COST ALL OR ANY PROCEEDINGS PERTAINING OR RELATING TO SAID PROPERTY . AS PER ITEM (J) THE PARTY OF FIRST PART SHALL NOT BE ENTITLED TO EVICT THE PA RTY OF THE SECOND PART FROM THE SAID PROPERTY SAVE AND EXCEPT FOR SUBLETTING TH E PREMISES TO ANY OTHER PERSON OR PERSONS. 8.5 THIS PROPERTY GOT TRANSFERRED THROUGH REGISTERED DEED DATED 31/3/2003 BY SMT. SEEMA MUKHERJEE, ALOK MUKHERJEE A ND AROOP MUKHERJEE TO MOHAN JOSHI. AS PER THIS DEED, THE FIRST PARTY O WNED THIS ANCESTRAL IMMOVABLE PROPERTY THROUGH PARTITION DECREE NO. 11/ 1963 DATED 31/7/1963 BY WHICH IT CAME EXCLUSIVELY SHARE AND POSSESSION OF HIS LATE FATHER SHRI AVANI KUMAR MUKHERJEE. THEREAFTER THIS PROPERTY WAS T RANSFERRED AS PER HINDU SUCCESSION ACT IN THE NAME OF FIRST PARTY I.E . SEEMA MUKHERJEE, ALOK MUKHERJEE AND AROOP KUMAR MUKHERJEE. THE AREA HAS BE EN SHOWN AS 477.29 SQ.MT. COMPRISING OF 16 ROOMS, FIVE TOILETS IN AGRE EMENT TO SELL. HOWEVER, IN DEED OF REGISTRATION, THE AREA HAS BEEN SHOWN 488.49 SQ.MT. THIS PREMISES WAS GIVEN ON RENT TO THE PURCHASER. AS PER REGISTERE D DEED, THE TOTAL CONSIDERATION ALREADY TAKEN BY THE SELLER HAD BEEN SHOWN AT RS. 50,000/- 41 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. (30,000 + 20,000), HOWEVER, IN THE ALLEGED AGREEMENT TO SELL, IT WAS RS. 30,000/- ONLY. AS PER THIS DEED, REMAINING AMOUNT H AS BEEN RECEIVED BY THE FIRST PARTY AT RS. 50,000/- AT THE TIME OF REGISTRY . 8.6 ON THE BASIS OF ALLEGED AGREEMENT TO SELL AND D EED OF REGISTRATION, IT IS PROVED THAT ALLEGED AGREEMENT TO SELL ARE DIFFERENT . EVEN ALLEGED AGREEMENT TO SELL IS PRESUMED TO BE GENUINE AS PER THE TERMS AND CONDITIONS, THE ALLEGED AGREEMENT TO SELL IS NOT EXISTED ON THE DAT E OF REGISTRY. AS BOTH THE PARTIES HAVE NOT PERFORMED TERMS AND CONDITIONS OF THE ALLEGED AGREEMENT TO SELL IN PRESCRIBED TIME AND PRESCRIBED MANNER. THER EFORE, IT IS A BREACH OF CONTRACT. EVEN AREA AS WELL AS REMAINING CONSIDERATI ON ARE NOT MATCHING IN THE ALLEGED AGREEMENT TO SELL AND DEED OF REGISTRY OF VARIOUS DATES. THEREFORE, SALE CONSIDERATION CONSIDERED BY THE LD A SSESSING OFFICER FOR THE PURPOSES OF COMPUTATION OF CAPITAL GAIN AS PER SECT ION 50C IS RIGHTLY ASSESSED. SECTION 50C INSERTED BY THE FINANCE ACT, 2000 W.E.F. 01/4/2003, THEREFORE, SAME IS SQUARELY APPLICABLE ON THE TRANS FER MADE DURING THE FINANCIAL YEAR 2003-04 RELEVANT TO A.Y. 2004-05. TH E ASSESSEE CLAIMED THAT THESE PROPERTIES WERE COVERED U/S 2(47)(V) OF THE A CT DOES NOT STAND TO SUPPORT THE ASSESSEES CASE WHEREIN NUMBER OF DISCRE PANCIES WERE NOTED ABOVE, AS SUCH ALLEGED AGREEMENT TO SALE CANNOT BE ENFORCED BY THE COURT OF 42 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. LAW AS TIME AND MANNER PRESCRIBED IN THESE ALLEGED A GREEMENT TO SELL HAS MUCH BEFORE AND NOT FOLLOWED BY BOTH THE PARTIES EXP IRED. THE LD ASSESSING OFFICER HAS TAKEN THE CONSIDERATION ON THE BASIS OF DEED U/S 50C, THEREFORE, WHATEVER CONSTRUCTION WAS MADE ON THESE LANDS WERE TRE ATED BY HIM AS BELONGED TO ASSESSEE AT THE TIME OF TRANSFER AS NO DOCUMENTARY EVIDENCES WERE SUBMITTED BY THE ASSESSEE AT THE TIME OF ASSESS MENT THAT THESE LANDS HAS BEEN GOT TRANSFERRED ON THE BASIS OF ALLEGED AG REEMENT TO SELL IN DIFFERENT YEAR TO DIFFERENT PERSONS AND THEY CONSTR UCTED BUILDING THEREON. IF THESE FACTS WERE CORRECT, THE PURCHASER MIGHT HAVE F ILING INCOME TAX RETURN AND ALSO PAYING THE MUNICIPAL TAX AND MIGHT HAVE IN STALLED TELEPHONE/ELECTRICITY CONNECTION ON IT BUT NO EVIDE NCES WERE PRODUCED BEFORE THE ASSESSING OFFICER. FURTHER IN THE PROPERTY NO. 5 I.E. HATHI BABU KA AHATA, KACHHI BASTI, JAIPUR WAS GIVEN BY THE ASSESSEES FA THER ON RENT, WHICH WAS CONTINUED UPTO REGISTRY OF THIS PROPERTY I.E. UP T O 31/3/2003. THE ASSESSEE ALSO CHALLENGED THE ASSESSABILITY OF THIS PROPERTY NO. 5, HATHI BABU KA AHATA, KACHHI BASTI, JAIPUR ON THE GROUND OF ASSESSABILITY YEAR BUT ON VERIFICATION OF THE RECORD IT WAS FOUND THAT REMAINING STAMP DUTY WAS PAID BY THE ASSESSEE ON 02/4/2003. IN CASE OF RAJ RANI DEVI RAMNA VS. CI T 201 ITR 1032 (PAT), IT HAS BEEN HELD THAT THE PARTIES HAD CLEARLY INTENDED THAT DESIRED EXECUTION 43 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. AND REGISTRATION OF SALE DEED, TRANSFER BY WAY OF TH E SALE WOULD BECOME EFFECTIVE ONLY ON PAYMENT OF ENTIRE SALE CONSIDERAT ION AND IN THIS BACKGROUND OF FACT IT HAD TO BE HELD THAT THERE WAS NO TRANSFER OF LAND COVERED BY THE THREE SALE DEEDS IN QUESTION DURING THE PERIOD UNDE R CONSIDERATION MAKING THE ASSESSEE LIABLE FOR CAPITAL GAIN TAX U/S 45. AS PER REGISTERED DEED, THE ASSESSEE GOT RS. 50,000/- AT THE TIME OF REGISTRY B EFORE SUB-REGISTRAR, JAIPUR WHO HAS SIGNED THE REGISTRY ON 02/4/2003. THEREFORE, THE ASSESSEE GOT CONSIDERATION AS PER TERMS AND AGREEMENT OF THE REG ISTERED DEED ON 02/4/2003. ACCORDINGLY, THE ASSESSABILITY OF THIS C APITAL GAIN ON ACCOUNT OF TRANSFER OF THIS PROPERTY IS LIABLE TO BE ASSESSED IN A.Y. 2004-05. THE CASE LAW RELIED BY THE LD AR IS NOT SQUARELY APPLICABLE. THE LD CIT(A) WAS WRONG IN DECIDING THE ASSESSMENT OF FOUR PARTIES UNDER THE H EAD HUF AS ARGUED BY THE LD DR, THESE PROPERTIES WERE SOLD IN THE CAPACIT Y OF INDIVIDUAL AND THE ASSESSEE HAD CLAIMED STATUS AS INDIVIDUAL. NO WHERE IT HAS BEEN CLAIMED THAT THESE PROPERTIES WERE BELONGED TO HUF, THEREFORE, TH E STATUS OF ASSESSABILITY OF THESE FOUR IMMOVABLE PROPERTIES REFERRED BY THE LD CIT(A) IS TO BE HELD ASSESSABLE IN THE CAPACITY OF INDIVIDUAL NOT HUF. F URTHER ONLY ONE WITNESS HAS BEEN SIGNED ON ALLEGED AGREEMENT TO SELL DATED 09/8/1975 OF PROPERTY AT HATHI BABU KA BAGH, JAIPUR AND TRANSFERER WRITTEN IN THE AGREEMENT AS AVANI 44 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. KUMAR MUKHERJEE, SON OF SHRI SATKORI MUKHERJEE WHERE AS SINGED BY ATHAK KUMAR MUKHERJEE. THERE IS NO WITNESS ON ALLEGED AGRE EMENT TO SELL DATED 28/8/1975 TO PROPERTY BUT NO ADDRESS OF THE PROPERT Y AND TRANSFERER WRITTEN IN THE AGREEMENT AS AVANI KUMAR MUKHERJEE, SON OF S HRI SATKORI MUKHERJEE WHEREAS SINGED BY ATHAK KUMAR MUKHERJEE. IN BOTH T HE ALLEGED AGREEMENTS TO SELL SINGED BY ATHAK KUMAR MUKHERJEE. THE ASSESSE ES HAVE NOT PRODUCED ANY EVIDENCE THAT THESE TRANSACTIONS HAVE BEEN DISC LOSED BY THE ASSESSEES AT THE TIME OF ALLEGED AGREEMENT TO SELL IN RESPECT IVE YEARS IN THEIR RESPECTIVE INCOME TAX RETURNS. ACCORDINGLY, THE ASSESSEES AP PEAL IS DISMISSED AND REVENUES APPEAL IS ALLOWED. 9. ITA NO. 871/JP/2012 A.Y. 2004-05 LATE SMT. SEEMA MUKHERJEE THROUGH L/H SHRI ALOK MUKHERJEE & SH. AROOP MUKHERJEE VS. ITO WARD 3(2), JAIPUR. THIS IS ASSESSEES APPEAL FILED AGAINST THE ORDER DA TED 18/09/2012 PASSED BY THE LD CIT(A)-I, JAIPUR FOR A.Y. 2004-05. RESPECTIVE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE LD. CIT(A) HAS ERRED BY CONFIRMING THE ACTION OF ASSESSING OFFICER WHO DID NOT HAVE THE VALID JURISD ICTION TO MAKE RE-ASSESSMENT U/S 147 AS NOTICES U/S 148 WERE N OT ISSUED AND SERVED ON ALL THE LEGAL HEIRS OF THE DEC EASED ASSESSEE AND THE ASSESSMENT ORDER OF THEIR PRESENT LEGAL HEIRS. 45 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 2. THAT THE ASSESSING OFFICER DID NOT HAVE THE VALID JURISDICTION TO MAKE RE-ASSESSMENT U/S 147 AS THE SERVICE OF THE NO TICE U/S 148 ISSUED ON 31/3/2011 AND SERVED ON 31/3/2011 ITS ELF BY WAY OF AFFIXTURE, IN SPITE OF PRESENCE OF THE LEGAL H EIRS OF THE DECEASED ASSESSEE, WAS INVALID AB-INITO. 3. THAT THE LD CIT(A) ERRED BY UPHOLDING THE ASSESSM ENT ORDER, AS THE ASSESSEE WAS NOT APPLIED THE REASONS RECORDED F OR REOPENING THE ASSESSMENT DESPITE REQUESTS BY THE A SSESSEE DURING THE ASSESSMENT PROCEEDINGS, AFTER GETTING TH E ASSESSMENT ORDER AND EVEN DURING APPELLANT PROCEEDI NGS, BEFORE THE CIT(A). 4. THAT THE LD. CIT(A) HAS ERRED BY CONFIRMING THE A CTION OF ASSESSING OFFICER OF ASSESSING CAPITAL GAINS IN A .Y. 2004-05 BY IGNORING THE BASIC FACT THAT TRANSFER OF CAPITAL AS SET HAD ALREADY COMPLETED, IN TERMS OF SECTION 2(47)(V), 2( 47)(VI) AND EXPLANATION 2 TO THE SECTION 2(47), IN THE RELEVANT ASSESSMENT YEARS I.E. 1981-82 ITSELF, WHEN THE AGREEMENT TO SAL E WAS EXECUTED, ACCOMPANIED WITH HANDING OVER OF PHYSICAL POSSESSION OF CAPITAL ASSET. 5. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACT ION OF A.O. BY IGNORING THE LAW THAT SECTION 50C CAME ON THE STATUT E W.E.F. 01/4/2003 AND THE TRANSACTIONS THROUGH AGREEMENT T O SELL OR POWER OF ATTORNEY CAME IN THE ENLARGED SCOPE OF SE CTION 50C(1) W.E.F. 01/10/2009 WHEREAS THE CAPITAL ASSETS OF THE ASSESSEE WERE TRANSFERRED BY WAY OF AGREEMENT FROM ASSESSMENT YEAR 1976-77 TO 1988-89 ITSELF AND PURCH ASER HAS MADE CONSTRUCTION ON IT AND ENJOYING THE PROPERTY S INCE THEN. 46 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 6. WITHOUT PREJUDICE TO ABOVE GROUNDS, THE APPELLAN T SUBMITS THAT THE LD CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF A .O. WHO HAS WRONGLY INITIATED PROCEEDINGS FOR ASSESSMENT YEAR 20 04-05, AS SALE DEED IN QUESTION WAS NOT REGISTERED IN THE SAID ASSESSMENT YEAR. THE RELEVANT SALE DEED I.E. MOHAN JOSHI WAS EXE CUTED, PRESENTED AND REGISTERED BEFORE REGISTRATION AUTHOR ITY ON 31/3/2003 I.E. ASSESSMENT YEAR 2003-04. HENCE THE W HOLE PROCEEDINGS FOR ASSESSING CAPITAL GAINS IS VOID AB- INITO FOR THE SALE DEED IN FAVOUR OF MOHAN JOSHI. 10. REGARDING TRANSFER OF PROPERTY AT 56, HATHI BAB U KA BAGH, STATION ROAD, JAIPUR, WHICH WAS SOLD ON 22/5/2003 AT RS. 8,90 ,437/-. IN THIS CASE ALSO, THE CASE WAS REOPENED BY THE ASSESSING OFFICER ON BOTH THE PROPERTIES LONG TERM CAPITAL GAIN WHICH HAS NOT BEEN DISCLOSED BY HER. THEREAFTER A DETAILED QUESTIONNAIRE WAS ISSUED BY THE ASSESSING O FFICER AND AFTER CONSIDERING THE ASSESSEES REPLY, THE LONG TERM CAP ITAL GAIN OF PROPERTY AT HATHI BABU KA AHATA, KACHHI BASTI, JAIPUR WAS ASSESS ED AT 1/3 RD SHARE OF ASSESSEE AT RS. 21,26,580/- AND CAPITAL GAIN ON 56, HATHI BABU KA BAGH, STATION ROAD JAIPUR WAS AT RS. 8,90,437/- WHICH WAS C HALLENGED BY THE ASSESSEE BEFORE THE LD CIT(A), WHO HAD CONFIRMED THE ADDITION BY HOLDING THAT REOPENING U/S 148 IS LEGAL AND YEAR OF ASSESS ABILITY IS 2004-05, 50C IS APPLICABLE AND SECTION 2(47) IS NOT APPLICABLE IN T HE CASE OF PROPERTY REGISTERED DURING THE F.Y. 2003-04 RELEVANT TO ASSE SSMENT YEAR 2004-05. THE ASSESSEE HAS CHALLENGED BEFORE US. GROUND NO. 1 TO 3 WHICH PERTAINS TO 47 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. REOPENING U/S 148 OF THE ACT AND SAME HAVE NOT BEEN PRESSED BY THE ASSESSEE. THUS, THE SAME ARE DISMISSED AS NOT PRESS ED. 10.1 GROUND NO. 4 OF THE APPEAL IS ON TRANSFER U/S 2(47)(V), GROUND NO. 5 IS AGAINST APPLICABILITY OF SECTION 50C(1) AND GROU ND NO. 6 IS FOR YEAR OF ASSESSABILITY, FOR WHICH WE HAVE ALREADY EXPRESSED OU R VIEW IN CASE OF ALOK MUKHERJEE, SAME FINDINGS ARE APPLICABLE HERE. THEREF ORE, WE DISMISS THE ASSESSEES APPEAL. 11. ITA NO. 888/JP/2012 FOR A.Y. 2004-05 ITO, WARD 3(2) , JAIPUR VS. AROOP MUKHERJEE (HUF) THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE O RDER DATED 12/09/2012 PASSED BY THE LD CIT(A)-I, JAIPUR FOR A.Y. 2004-05. THE SOLE GROUND OF APPEAL IS REPRODUCED HEREUNDER:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD CIT(A) IS JUSTIFIED IN DELETING THE AD DITION OF LONG TERM CAPITAL GAIN FOR RS. 21,26,580/- IN THE HANDS OF HUF. 11.1 THE REVENUES APPEAL IS AGAINST DELETING THE AD DITION OF LONG TERM CAPITAL GAIN OF RS. 21,26,580/- IN THE HANDS OF HUF . THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HUF SOLD PROPERTY SITUAT ED AT HATHI BABU KA AHATA, KACHHI BASTI, JAIPUR ON 19/12/2003 FOR RS. 6 8,88,625/-. THE ASSESSEE HAD NOT DISCLOSED LONG TERM CAPITAL GAIN FOR THE TA XATION PURPOSE DURING THE 48 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. ASSESSMENT YEAR 2004-05. AFTER RECORDING THE REASON S HE REOPENED THE CASE AND A QUESTIONNAIRE WAS ALSO ISSUED, OPPORTUNITIES WE RE ALSO PROVIDED. AFTER CONSIDERING THE ASSESSEES REPLY, THE LD ASSESSING OFFICER ASSESSED AS PROTECTIVE 1/3 RD SHARE OF ASSESSEE HUF AT RS. 21,26,580/- AND SUBST ANTIVE IN CASE OF AROOP MUKHERJEE (INDIVIDUAL) SIMILAR TO CO- OWNER LATE SMT. SEEMA MUKHERJEE AND SHRI ALOK MUKHERJEE. 11.2 THE ASSESSEE CHALLENGED THIS ISSUE BEFORE THE L D CIT(A), WHO HAD DELETED THE ADDITION IN THE HANDS OF HUF BY OBSERVI NG THAT THIS PROPERTY WAS BELONGING TO THE INDIVIDUAL SHRI AROOP MUKHERJEE. TH E ASSESSEE HUF CHALLENGED BEFORE THE LD CIT(A) THAT THE REOPENING U /S 148, THE ASSESSABILITY IN HUF, YEARS OF ASSESSABILITY, INVOKING PROVISIONS OF SECTION 50C AND TRANSFER U/S 2(47), WHICH HAS BEEN DECIDED BY THE LD CIT(A) I N FAVOUR OF THE ASSESSEE. 11.3 THE REVENUE CHALLENGED THE DELETING THE STATUS OF HUF AND CONSIDERED THIS CAPITAL GAIN AS INDIVIDUAL, THEREFORE, ASSESSA BILITY IN THE HANDS OF INDIVIDUAL, WE HAVE ALREADY DECIDED THIS ISSUE IN TH E HANDS OF ALOK MUKHERJEE AND LATE SMT. SEEMA MUKHERJEE (INDIVIDUAL) AS SHRI AROOP MUKHERJEE HAS 1/3 RD SHARE IN THIS PROPERTY. THE SAME FINDINGS ARE APPL ICABLE HERE AND 49 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. ACCORDINGLY, WE DISMISS THE REVENUES APPEAL. IT IS INFORMED THAT NO APPEAL HAS BEEN FILED IN CASE OF SHRI AROOP MUKHERJEE (IND IVIDUAL) FOR A.Y. 2004-05. 12. ITA NO. 872/JP/2012 FOR A.Y. 2004-05 SATKORI MUKHERJEE CHARITABLE TRUST VS. ITO, WARD 3(2), JAIPUR. THIS IS AN ASSESSEES APPEAL FILED AGAINST THE ORDER DATED 11/09/2012 PASSED BY THE LD CIT(A)-I, JAIPUR FOR A.Y. 2004-05. RESPEC TIVE GROUNDS OF APPEAL ARE REPRODUCED AS UNDER:- 1. THAT THE ASSESSING OFFICER DID NOT HAVE THE VALI D JURISDICTION TO MAKE RE-ASSESSMENT U/S 147 AS THE SERVICE OF THE NO TICE U/S 148 ISSUED ON 31/3/2011 AND SERVED ON 31/3/2011 ITS ELF BY WAY OF AFFIXTURE, IN SPITE OF PRESENCE OF THE ASSESSE E FOR ACCEPTING THE NOTICE, WAS INVALID AB-INITO. 2. THAT THE LD CIT(A) HAS ERRED BY CONFIRMING THE AC TION OF THE ASSESSING OFFICER FOR NOT PROVIDING THE REASONS TO BELIEVE FOR ESCAPEMENT EITHER WITH THE NOTICE/ASSESSMENT ORDER OR DESPITE THE SUBSEQUENT WRITTEN REQUEST OF ASSESSEE AND THERE FORE THE RE-OPENING PROCEEDINGS ARE INVALID U/S 147/148. 3. THAT THE LD CIT(A) ERRED BY CONFIRMING THE ACTION OF ASSESSING OFFICER OF ASSESSING CAPITAL GAINS IN A.Y. 2004-0 5 BY IGNORING THE BASIC FACT THAT TRANSFER OF CAPITAL ASSET HAD ALREADY COMPLETED, IN TERMS OF SECTION 2(47)(V), 2(47)(VI) AND EXPLANATION 2 TO THE SECTION 2(47), IN THE RELEVANT ASSESSMENT YEARS I.E. 2000-01 ITSELF, WHEN THE AGREEMENT TO SAL E WAS EXECUTED ACCOMPANIED WITH HANDING OVER OF THE PHYSIC AL POSSESSION OF CAPITAL ASSET AND PURCHASER HAD ENJOY ING SAID PROPERTY FOR HIS BUSINESS PURPOSES SINCE THAN. 50 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 4. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACT ION OF A.O. BY IGNORING THE LAW THAT SECTION 50C CAME ON THE STATUT E W.E.F. 01/4/2003 AND THE TRANSACTIONS THROUGH AGREEMENT T O SELL OR POWER OF ATTORNEY CAME IN THE ENLARGED SCOPE OF SE CTION 50C(1) W.E.F. 01/10/2009 WHEREAS THE CAPITAL ASSETS OF THE ASSESSEE WERE TRANSFERRED BY WAY OF AGREEMENT FROM ASSESSMENT YEAR 2000-01 ITSELF. 5. THAT THE LD CIT(A) ERRED IN UPHOLDING THE ACTION O F A.O. BY IGNORING THE LAW THAT SECTION 50C IS NOT APPLICABLE FOR PROPERTY HELD UNDER TRUST FOR CHARITABLE PURPOSES WHICH IS LI ABLE TO BE ASSESSED U/S 11(1A) OF THE ACT AND NOT UNDER CHAPTE R IV OF THE INCOME TAX ACT, 1961. 12.1 THE TRUST HAD SOLD TWO PROPERTIES ONE ON 24/10/20 03 SITUATED AT HATHI BABU KA AHATA, WHICH WAS VALUED BY THE REGISTERING A UTHORITY AT RS. 40,55,303/- AND PROPERTY SITUATED AT 327, HATHI BAB U KA BAGH, JAIPUR ON 29/10/2003, WHICH WAS VALUED BY THE REGISTERING AUTH ORITY AT RS. 40,55,330/- . THE LD ASSESSING OFFICER ALSO REOPENED THE ASSESSE ES CASE U/S 148 OF THE ACT AND THEREAFTER DETAILED QUESTIONNAIRE WAS ISSUED TO THE ASSESSEE. AFTER CONSIDERING THE FMV AS ON 01/4/1981 THE LD ASSESSIN G OFFICER COMPUTED THE CAPITAL GAIN IN THE HANDS OF TRUST AT RS. 77,81,718/ - I.E. CAPITAL GAIN AT PLOT NO. 327, HATHI BABU KA BAGH, JAIPUR (1/2 ND SHARE) AT RS. 38,90,859 AND PLOT NO. 327, HATHI BABU KA BAGH, JAIPUR (1/2 ND SHARE) AT RS. 38,90,859/-. 51 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 12.2 THE ASSESSEE TRUST CHALLENGED THIS ISSUE BEFORE THE LD CIT(A) ON THE GROUND OF REOPENING U/S 148 OF THE ACT, APPLICATION OF SECTION 50C AND TRANSFER U/S 2(47)(V) AND ADOPTING THE FMV AS ON 01 /4/1981. THE LD CIT(A) HAS DISMISSED THE ASSESSEES APPEAL ON ALL THE GROU NDS AND HELD THE ASSESSING OFFICERS ASSESSMENT AS VALID ASSESSMENT. 12.3 NOW THE ASSESSEE TRUST IS BEFORE US AND IT HAS C HALLENGED THE REOPENING U/S 148 ON GROUND NO. 1 AND 2 OF THE APPE AL, WHICH HAVE NOT BEEN PRESSED BY THE ASSESSEE, THEREFORE, THE SAME A RE DISMISSED AS NOT PRESSED. GROUND NO. 3 IS FOR CHALLENGING FOR NOT CO NSIDERING THE TRANSFER U/S 2(47)(V)(VI) OF THE ACT AND GROUND NO. 4 IS APPLICA TION OF SECTION 50C, WHICH HAS BEEN DECIDED BY THIS BENCH IN DETAIL IN THE CAS E OF ALOK MUKHERJEE. THE FACTS AND CIRCUMSTANCES ARE IDENTICAL, THEREFORE, O UR VIEW ARE SAME AS GIVEN IN THE ORDER OF ALOK MUKHERJEE (INDIVIDUAL), WHICH I S SQUARELY APPLICABLE IN THIS CASE. THEREFORE, WE DISMISS THE ASSESSEES APPEA L ON THIS GROUND. 12.4 GROUND NO. 5 OF THE APPEAL IS AGAINST UPHOLDIN G THE ACTION OF ASSESSING OFFICER THAT PROPERTY IS ASSESSABLE UNDER CHAPTER 4(IV) OF THE ACT, WHICH IS LIABLE TO BE ASSESSED U/S 11(1A) OF THE ACT . ON VERIFICATION OF THE ASSESSMENT ORDER, THE ASSESSEE HAS NOT RAISED THIS ISSUE DURING THE COURSE OF 52 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. ASSESSMENT PROCEEDINGS, WHICH WAS ALSO NOT CHALLENGE D BEFORE THE LD CIT(A) AS EVIDENT FROM THE FORM NO. 35. NOW THE ASSESSEE RA ISED THIS ISSUE BEFORE THE ITAT, WHICH IS NOT A TECHNICAL ISSUE AND CAN BE R AISED BEFORE THE ITAT. FOR READY REFERENCE SECTION 11(1A) IS REPRODUCED AS UNDER:- 11 (1) SUBJECT TO THE PROVISIONS OF SECTIONS 60 TO 63, THE FOLLOWING INCOME SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR OF THE PERSON IN RECEIPT OF THE INCOME-- (A) INCOME DERIVED FROM PROPERTY HELD UNDER TRUST WHO LLY FOR CHARITABLE OR RELIGIOUS PURPOSES, TO THE EXTENT TO WHI CH SUCH INCOME IS APPLIED TO SUCH PURPOSES IN INDIA ; AND, WHERE ANY SUCH INCOME IS ACCUMULATED OR SET APART FOR APPLICATION TO SUCH PURPOSES IN INDIA, TO THE EXTENT TO WHICH THE INCOME SO ACCUMULATED OR SET APART IS NOT IN EXCESS OF FIFTEEN PER C ENT. OF THE INCOME FROM SUCH PROPERTY; THE ASSESSEE CLAIMED THAT REGISTRATION OF THIS TRUST HAS BEEN GRANTED BY THE DEPARTMENT U/S 12A. DURING THE COURSE OF HEARING TH E LD AR HAS DRAWN OUR ATTENTION ON PAPER BOOK PAGE NO. 63 AND CLAIMED THA T THE ASSESSEE TRUST GOT REGISTRATION U/S 12A OF THE ACT ON 11/8/1989 FR OM 30/5/1989 AND EXEMPTION U/S 80G HAD ALSO BEEN GRANTED FOR THE PER IOD OF 01/4/1990 TO 31/3/1993. THEREAFTER NO REGISTRATION WAS EXTENDED B Y THE CIT CONCERNED EVEN THE ASSESSEE HAS NO EVIDENCE THAT HE HAD APPLI ED FOR EXTENSION OF REGISTRATION U/S 12A OF THE ACT. THE ALLEGED AGREE MENT TO SELL WAS MADE BY THE TRUST ON 10/3/2000 FOR RS. 4.5 LACS WITH SHRI NAV IN KUMAR. 53 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. 12.5 THE ASSESSEE CLAIMED BENEFIT OF SECTION 11 BUT IT HAS TO BE REGISTERED TRUST AND PROPERTY IS TO BE HELD WHOLLY FOR THE CHARI TABLE AND RELIGIOUS PURPOSE THEREAFTER BENEFIT OF SECTION 11(1A) CAN BE AVAILED BY THE ASSESSEE AS SUCH THIS ISSUE WAS NOT RAISED BEFORE THE LOWER AU THORITY AND ASSESSEE HAS NOT PRODUCED ANY EVIDENCE REGARDING THE APPLICATION OF CAPITAL GAIN FOR THE RELIGIOUS OR CHARITABLE PURPOSE BY OBTAINING REGIST RATION U/S 12A OF THE ACT FROM THE COMPETENT AUTHORITY, THEREFORE, THIS GROUN D OF APPEAL IS DISMISSED. ACCORDINGLY, THE ASSESSEES APPEAL ON ALL GROUNDS I S DISMISSED. 13. IN THE RESULT ALL THE ASSESSEES APPEALS AS WELL AS THE REVENUE ARE DISMISSED EXCEPT REVENUES APPEAL BEING ITA NO. 887 /JP/2012 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/10/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21 ST OCTOBER, 2015 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS-(I) SHRI ALOK MUKHERJEE (INDIVIDUAL), JAIPUR. 54 ITA NO. 887, 862, 871, 888 & 872/JP/2012. ITO VS. ALOK MUKHERJEE & ORS CASES. (II) LATE SMT. SEEMA MUKHERJEE THROUGH L/H SHRI ALOK MUKHERJEE & SH. AROOP MUKHERJEE, JAIPUR. (III) AROOP MUKHERJEE (HUF), JAIPUR. (IV) SATKORI MUKHERJEE CHARITABLE TRUST, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE INCOME TAX OFFICER, WARD 3(2), JA IPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 887, 862, 871, 888 & 872/JP/201 2) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR