SHRI TRILOK CHAND SAIN, ALWAR V. INCOME TAX OFFICER, ALWAR

MA 28/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9504 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 01-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAN SINGH
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 56(2)(vii)(b); 2(14)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 28/JP/2019 (ARISING OUT OF ITA NO. 449/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2014-15 SH. TRILOK CHAND SAIN S/O SRI RAM SWAROOP SAIN, 805, WONDER RESIDENCY, 200FT. ROAD, ALWAR CUKE VS. THE ITO WARD-2(1), ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BPYPS 6036 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P. C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAN SINGH (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 31/05/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 21/06/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL IN ITA N O. 449/JP/2018 DATED 07/01/2019. 2. IN ITS APPLICATION, ASSESSEE HAS SUBMITTED THAT THE TRIBUNAL WHILE SETTING ASIDE THE ORDER OF LD. CIT(A) AND UPHOLDING THE ORDER OF THE AO HAS NOT CONSIDERED THE MEANING OF THE TERM PROPERT Y AS PROVIDED IN M.A. NO. 28/JP/2019 SH. TRILOK CHAND SAIN, ALWAR VS. ITO, ALWAR 2 EXPLANATION (D) TO SECTION 56(2)(VII) WHERE THE TER M PROPERTY IS EXPLAINED AS UNDER.:- PROPERTY MEANS THE FOLLOWING CAPITAL ASSET OF TH E ASSESSEE, NAMELY:- (I) IMMOVABLE PROPERTY BEING LAND OR BUILDING OR BOTH; (II) SHARES & SECURITIES (III) JEWELLERY .. (IX) BULLION 3. IT WAS SUBMITTED THAT AS PER THE ABOVE EXPLANATI ON, ALL MOVEABLE OR IMMOVABLE PROPERTIES OF ANY NATURE ARE NOT COVER ED IN THE DEFINITION OF PROPERTY. ONLY THOSE MOVEABLE OR IMMOVABLE PROPE RTIES WHICH ARE HELD AS CAPITAL ASSETS AND WHICH FALLS IN ANY OF TH E CLAUSES (I) TO (IX) ARE ONLY COVERED U/S 56(2)(VII). ACCORDINGLY, ANY PROPE RTY WHICH IS NOT A CAPITAL ASSET OR WHICH IS HELD AS STOCK IN TRADE IS NOT COVERED WITHIN THE MEANING OF MOVEABLE OR IMMOVABLE PROPERTIES U/S 56( 2)(VII). 4. IT WAS SUBMITTED THAT IN THE PRESENT CASE, THE A GRICULTURAL LAND PURCHASED BY THE ASSESSEE WAS NOT A CAPITAL ASSET A S PER THE PROVISIONS OF SECTION 2(14) OF THE ACT. FURTHER, ASSESSEE BEIN G IN THE BUSINESS OF SALE/PURCHASE OF PROPERTY, LAND SO PURCHASED IS HIS STOCK-IN-TRADE. THUS, THE IMMOVABLE PROPERTY UNDER CONSIDERATION IS NOT C OVERED BY THE DEFINITION OF PROPERTY GIVEN IN EXPLANATION (D) T O SECTION 56(2)(VII)(B) OF THE ACT. NON CONSIDERATION OF THIS DEFINITION OF PROPERTY IN SECTION 56(2)(VII)(B) IS A MISTAKE APPARENT ON RECORD AND T HE ORDER SO PASSED BY THE TRIBUNAL REQUIRE APPROPRIATE RECTIFICATION U /S 254(2) OF THE ACT. M.A. NO. 28/JP/2019 SH. TRILOK CHAND SAIN, ALWAR VS. ITO, ALWAR 3 5. PER CONTRA, THE LD. DR HAS OPPOSED THE MISC. APP LICATION AND SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL IS WELL-REASONED ORDER WHICH DOESNT CALL FOR ANY RECTIFICATION. 6. HEARD BOTH THE PARTIES. WE HAVE ALSO GONE THRO UGH THE ORDER OF THE BENCH WHICH, AFTER GOING THROUGH THE PROVISIONS OF SECTION 56(2)(VII), HAS GIVEN ITS FINDING AT PARAS 5 AND 6 OF ITS ORDER WHICH READS AS UNDER:- 5. THE ABOVE PROVISIONS THUS PROVIDES THAT WHERE A N INDIVIDUAL RECEIVES IN ANY PREVIOUS YEAR, FROM ANY PERSON OR PERSONS ON OR AFTER THE 1ST DAY OF OCTOBER, 2009 BU T BEFORE THE 1ST DAY OF APRIL, 2017, ANY IMMOVEABLE PROPERTY FOR A CONSIDERATION WHICH IS LESS THAN THE STAMP DUTY VAL UE OF THE PROPERTY BY AN AMOUNT EXCEEDING FIFTY THOUSAND RUPE ES, THE STAMP DUTY VALUE OF SUCH PROPERTY AS EXCEEDS SUCH C ONSIDERATION SHALL BE INCOME CHARGEABLE TO TAX UNDER THE HEAD I NCOME FROM OTHER SOURCES. 6. IN THE INSTANT CASE, THE ASSESSEE HAS PURCHASED THREE PLOTS OF LAND DURING THE YEAR UNDER CONSIDERATION. THE SALE CONSIDERATION AS PER THE RESPECTIVE SALE DEEDS AMOUNTS TO RS 23,0 0,000 AND THE STAMP DUTY VALUE OF SUCH PROPERTIES AS DETERMIN ED BY THE STAMP DUTY AUTHORITY AMOUNTS TO RS 1,74,06,224/- AN D THEREFORE, THERE IS DIFFERENCE TO THE TUNE OF RS 1,51,06,224/- BETWEEN THE SALE CONSIDERATION AS PER THE SALE DEEDS AND THE ST AMP VALUATION DETERMINED BY THE STAMP VALUATION AUTHORITY. TO THI S EXTENT, THE FACTS ARE NOT DISPUTED AND HAVE BEEN ACCEPTED BY BO TH THE PARTIES. THE LIMITED POINT OF DISPUTE IS THE NATURE OF IMMOVEABLE M.A. NO. 28/JP/2019 SH. TRILOK CHAND SAIN, ALWAR VS. ITO, ALWAR 4 PROPERTY WHICH HAS BEEN PURCHASED BY THE ASSESSEE. THE ASSESSEES CONTENTION IS THAT WHICH HE HAS PURCHASE D ARE THREE PLOTS OF AGRICULTURAL LAND AND THE SAME DOESNT FAL L IN THE DEFINITION OF CAPITAL ASSET AS PER THE PROVISIONS O F SECTION 2(14) OF THE ACT AND PROVISIONS OF SECTION 56(2)(VII)(B) CAN NOT BE INVOKED. THE REVENUES CONTENTION IS THAT THE PROVISIONS OF SECTION 56(2)(VII)(B) TALKS ABOUT ANY IMMOVEABLE PROPERTY A ND THUS EVEN AN AGRICULTURE LAND FALLS UNDER THE DEFINITION OF A N IMMOVEABLE PROPERTY AND THE PROVISIONS OF SECTION 56(2)(VII)(B ) ARE CLEARLY ATTRACTED. ON READING OF PROVISIONS OF 56(2)(VII)( B), WE FIND THAT IT REFERS TO ANY IMMOVEABLE PROPERTY AND THE SAME I S NOT CIRCUMSCRIBED OR LIMITED TO ANY PARTICULAR NATURE O F IMMOVEABLE PROPERTY. IT REFERS TO ANY IMMOVEABLE PROPERTY WHIC H BY ITS GRAMMATICAL MEANING WOULD MEAN ALL AND ANY PROPERTY WHICH IS IMMOVEABLE IN NATURE, I.E, ATTACHED TO OR FORMING P ART OF EARTH SURFACE. IN THE INSTANT CASE, THE ASSESSEE HAS PUR CHASES THREE PLOTS OF AGRICULTURAL LAND AND SUCH AGRICULTURAL LA ND IS CLEARLY AN IMMOVEABLE PROPERTY. WHETHER SUCH AGRICULTURE LAND FALLS IN THE DEFINITION OF CAPITAL ASSET U/S 2(14) OR WHETHER SU CH AGRICULTURE LAND IS STOCK-IN-TRADE OF THE ASSESSEE, IN OUR CONS IDERED VIEW, ARE ISSUES WHICH CANNOT BE READ IN THE DEFINITION OF A NY IMMOVEABLE PROPERTY USED IN CONTEXT OF SECTION SECTION 56(2)( VII)(B) AND ARE THUS NOT RELEVANT. IN THE RESULT, WE SET-ASIDE THE ORDER OF THE LD CIT(A) TO THIS EXTENT AND UPHELD THE ORDER OF THE A SSESSING OFFICER. IN THE RESULT, GROUND NO. 1 OF THE REVENU ES APPEAL IS ALLOWED. M.A. NO. 28/JP/2019 SH. TRILOK CHAND SAIN, ALWAR VS. ITO, ALWAR 5 7. THE TRIBUNAL HAS THUS CONSIDERED THE PROVISIONS OF SECTION 56(2)(VII)(B) WHICH HAS BEEN INVOKED BY THE ASSESSI NG OFFICER AND WHICH TALKS ABOUT ANY IMMOVEABLE PROPERTY HELD THAT IT REFERS TO ANY IMMOVEABLE PROPERTY AND THE SAME IS NOT CIRCUMSCRIB ED OR LIMITED TO ANY PARTICULAR NATURE OF IMMOVEABLE PROPERTY. IT WA S HELD THAT THE ASSESSEE HAS PURCHASED THREE PLOTS OF AGRICULTURAL LAND AND SUCH AGRICULTURAL LAND IS CLEARLY AN IMMOVEABLE PROPERTY . IT WAS FURTHER HELD THAT WHETHER SUCH AGRICULTURE LAND FALLS IN THE DEF INITION OF CAPITAL ASSET U/S 2(14) OR WHETHER SUCH AGRICULTURE LAND IS STOCK -IN-TRADE OF THE ASSESSEE, IN OUR CONSIDERED VIEW, ARE ISSUES WHICH CANNOT BE READ IN THE DEFINITION OF ANY IMMOVEABLE PROPERTY USED IN CONTEXT OF SECTION 56(2)(VII)(B) AND ARE THUS NOT RELEVANT. 8. NOW, COMING TO THE CONTENTION OF THE LD AR THAT THE TRIBUNAL WHILE DECIDING THE MATTER HAS NOT CONSIDERED THE ME ANING OF THE TERM PROPERTY AS PROVIDED IN EXPLANATION (D) TO SECTIO N 56(2)(VII) WHERE THE TERM PROPERTY HAS BEEN DEFINED. IT HAS BEEN CONT ENDED THAT ALL MOVEABLE OR IMMOVABLE PROPERTIES OF ANY NATURE ARE NOT COVERED IN THE DEFINITION OF PROPERTY. ONLY THOSE MOVEABLE OR IMMO VABLE PROPERTIES WHICH ARE HELD AS CAPITAL ASSETS AND WHICH FALLS IN ANY OF THE CLAUSES (I) TO (IX) ARE ONLY COVERED U/S 56(2)(VII). ACCORDINGL Y, ANY PROPERTY WHICH IS NOT A CAPITAL ASSET OR WHICH IS HELD AS STOCK IN TRADE IS NOT COVERED WITHIN THE MEANING OF MOVEABLE OR IMMOVABLE PROPERT IES U/S 56(2)(VII). 9. WE HAVE GIVEN A CAREFUL THOUGHT AND CONSIDERATIO N TO THE AFORESAID CONTENTIONS. WITHOUT EXPRESSING ANY VIEW AT THIS STAGE REGARDING THE APPLICABILITY OF THE DEFINITION OF P ROPERTY GIVEN IN THE EXPLANATION, WE FIND THAT THE SAID ASPECT OF THE MA TTER WAS NOT M.A. NO. 28/JP/2019 SH. TRILOK CHAND SAIN, ALWAR VS. ITO, ALWAR 6 CONSIDERED BY THE TRIBUNAL WHILE PASSING THE IMPUGN ED ORDER. SINCE IT IS A RELEVANT AND CRITICAL POINT ON THE MATTER, THE REFORE, NON- CONSIDERATION OF THE SAME AMOUNT TO APPARENT MISTAK E IN THE IMPUGNED ORDER. ACCORDINGLY, WE RECALL THE ORDER OF THE TRI BUNAL AND THE REGISTRY IS DIRECTED TO LIST THE MATTER IN DUE COURSE. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED WITH ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 21/06/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/06/2019. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. TRILOK CHAND SAIN, ALWAR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD-2(1), ALWAR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 28/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR