SMT. ARUNA PALIWAL, Jaipur V. ITO, Jaipur

MA 44/JPR/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2327 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 15-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Assessee Lawyers: SHRAVAN GUPTA
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) M.A. NO. 44/JP/2012 (ARISING OUT OF I.T.A. NO. 1037/JP/2007) ASSTT. YEAR-2003-04 PAN NO. ADJPP 5050 D SMT. ARUNA PALIWAL, THE I.T.O. K-50, INCOME TAX COLONY, VRS. WARD 6(3), JAIPUR. TONK ROAD, JAIPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY :- SHRI SHRAVAN GUPTA. DEPARTMENT BY :- SHRI D.C. SHARMA. DATE OF HEARING : 19/09/2014 DATE OF PRONOUNCEMENT : 26/09/2014 O R D E R PER: T.R. MEENA, A.M. THE ASSESSEE HAS FILED THIS M.A. AGAINST THE ORDER OF THE B BENCH OF ITAT, JAIPUR IN ITA NO. 1037/JP/2007, WHICH WAS PA SSED ON 24/07/2009. 2. IN THIS CASE, IT IS SUBMITTED THAT THE HONBLE I TAT HAD NOT CONSIDERED THE PROVISIONS OF SECTION 45(A) OF THE I NCOME TAX ACT, 1961 (IN SHORT THE ACT), TRANSFER DEFINED IN SECTION 2(47), SECTION 53A OF T.P. ACT, SECTION 47 OF INDIAN REGISTRATION ACT. IT IS FURTHE R CLAIMED THAT SECTION 50C WAS APPLICABLE W.E.F. 01/04/2003 AND QUESTION OF CHARGING OF CAPITAL MA 44/JP/2012 SMT. ARUNA PALIWAL VS. ITO 2 GAIN IN A.Y. 2003-04 SHALL AUTOMATICALLY INCURRED. HOWEVER, AT THE WORST IF THE TRANSFER IS HELD COMPLETED ON 13/5/2002 ON THE BASIS OF CONSIDERATION REALIZED THROUGH CHEQUE THEN THE ISSUE IS ALSO DIRE CTLY COVERED IN FAVOUR OF ASSESSEE BY DECISION OF THIS HONBLE BENCH OF ITAT I N THE CASE OF ASHUTOSH BHARGAVA VS. DCIT 138 TTJ 479 (JP) WHEREIN IT HAS BEEN HELD THAT THE PROVISION OF S. 50C WERE BROUGHT ON THE STATUTE W.E.F. 1 ST APRIL, 2003. THOUGH IN THE BOARDS CIRCULARS IT HAS BEEN ST ATED THAT THESE PROVISIONS ARE APPLICABLE FROM A.Y. 2003-04, BUT TH E THEORY OF NATURAL JUSTICE AND IMPOSSIBILITY HAS TO BE TAKEN I NTO CONSIDERATION. THEORY OF IMPOSSIBILITY ON THE FACTS OF THE PRESENT CASE IS APPLICABLE FOR THE SIMPLE REASON THAT THE ASSESSEE ENTERED INT O SALE CONSIDERATION ON 12 TH JULY, 2002 AND UNDISPUTEDLY ON THIS DATE THE PROVISIONS OF S. 50C WERE NOT ON THE STATUTE. THEREF ORE, IT WAS IMPOSSIBLE TASK TO PRESUME THAT THE PROVISIONS OF S . 50C WILL COME AND THE VALUE ADOPTED BY THE SAV HAS TO BE TAKEN IN TO CONSIDERATION IN VIEW OF THE PROVISIONS OF S. 50C. TH EREFORE, FOR THIS REASON IT HAS TO BE HELD THAT THE PROVISIONS OF S. 50C ARE APPLICABLE W.E.F. 1 ST APRIL, 2003 AND NOT FROM THE DATE OF SALE TRANSACT IONS I.E. ON 12 TH JULY, 2002. HERE IS ALSO THE SAME POSITION, RATHE R ON MUCH STRONG FOOTING, BECAUSE IN THE PRESENT CASE THE ASS ESSEE ENTERED MA 44/JP/2012 SMT. ARUNA PALIWAL VS. ITO 3 INTO SALE TRANSACTION ON 31/10/2001 I.E. IN A.Y. 20 02-03 FURTHER AS PER THE A.O. TRANSACTION WAS COMPLETED ON 13/05/2002 , IS ALSO IN FAVOUR OF THE ASSESSEE BECAUSE THIS IS ALSO BEFORE THE 01/04/2003 AS PER THE ABOVE DECISIONS. THE SAME HAS ALSO BEEN F OLLOWED BY THIS HONBLE BENCH IN THE FAMILY CASE NAMELY SMT. C HNADRAWATI PALIWAL IN ITA NO. 76/JP/2011 DATED 16/05/2012. ALSO REFER CIT VS. LAXMAN SINGH 159 ITR 983(RAJ.) WHEREIN ALSO THE SAME POSITION REGARDING THE APPLICABILITY OF PROVISION AND FOLLOWE D IN THE ABOVE CASE ASHUTOSH BHARGAV (SUPRA). ALSO REFER CIT VS. NI RMAL TEXTILES 224 ITR 378 (GUJ.). IT IS FURTHER SUBMITTED THAT IN ASSESSEES FAMILY M EMBERS CASE IN THE NAME OF SMT. CHANDRAWATI PALIWAL ON THE EXACT SIMILAR FACTS AND CIRCUMSTANCES VIDE ORDER IN ITA NO. 76/JP/2011 DATE D 16/05/2012 DECIDED THE CASE IN FAVOUR OF THE ASSESSEE. THEREFOR E, IT IS AN APPARENT MISTAKE AND PRAYED TO RECALL THE ORDER DATED 24/7/2 009 OF THE HONBLE ITAT. 3. AT THE OUTSET, THE LEARNED D.R. SUPPORTED THE OR DER OF THE HONBLE ITAT AND ARGUED THAT REVIEW U/S 254(2) OF THE ACT IS NOT ALLOWED UNDER THE INCOME TAX ACT BY THE BENCH. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE COORDINAT E BENCH HAD GIVEN MA 44/JP/2012 SMT. ARUNA PALIWAL VS. ITO 4 SPECIFIC FINDING ON GROUNDS RAISED BY THE ASSESSEE BEFORE IT THAT ACTUAL PAYMENT WAS CREDITED IN THE BANK IN MAY 2002. IT FUR THER CONFIRMED THE LEARNED CIT(A)S FINDING IN PARA 1.3 OF ITS ORDER TH AT WHATEVER MAY BE THE DATE OF CHEQUE, UNLESS THERE ARE SUPPORTING EVIDENC E THAT GENUINELY IT WAS RECEIVED IN PRECEDING FINANCIAL YEAR AND THERE WE RE GENUINE AND COMPELLING REASONS NOT TO PRESENT THE SAME IN THE B ANK ACCOUNT FOR CLEARING ACTUAL CREDIT THEREOF IN THE ASSESSEES BA NK ACCOUNT HAS TO BE CONSIDERED AS THE DATE WHEN FINAL CONSIDERATION IS R ECEIVED BY THE ASSESSEE TOWARDS SALE OF THE SAID PLOT IN FAVOUR OF TWO PURCHASERS. IT IS FURTHER HELD THAT WHY THE ASSESSEE HAD NOT EXECUTED AGREEMENT TO SALE DATED 30/10/2001 AND HOW CHEQUE BEARING SUBSEQUENT S ERIAL NO. WAS ISSUED ON MUCH EARLIER DATE BY THE PURCHASER OF THE PLOT. AFTER ANALYZING THE DETAILED FACTS OF THE CASE, THE COORDINATE BENC H HAD DECIDED THAT THE ASSESSING OFFICER WAS JUSTIFIED IN TREATING THE SAI D CAPITAL GAIN IN A.Y. 2003-04 INSTEAD OF SUCH CAPITAL GAIN SHOWN IN A.Y. 2002-03. THE ASSESSING OFFICER WAS DIRECTED TO DELETE THE CAPITAL GAIN CHARGE DURING THE A.Y. 2002-03 AND RECTIFIED THE ORDER ACCORDINGLY. TH E LEARNED CIT(A) ALSO REWORKED OUT THE MARKET VALUE OF SAID LAND IN THE MO NTH OF MAY, 2002, HELD JUSTIFIED. THEREFORE, WE DO NOT FIND ANY MERIT I N THE ASSESSEES M.A. 5. THE ANOTHER ISSUE RAISED THROUGH THE M.A. BY THE ASSESSEE WAS THAT THE LEARNED ASSESSING OFFICER HAD NOT ALLOWED INTERE ST PAYMENT OF RS. MA 44/JP/2012 SMT. ARUNA PALIWAL VS. ITO 5 98,349/-. THE COORDINATE BENCH HAD DECIDED THIS ISSU E AND HELD THAT INTEREST WAS NOT PAID FOR EARNING OF THE INTEREST IN COME BY FOLLOWING THE VARIOUS DECISIONS OF VARIOUS ITATS. THEREFORE, WE DO NOT HAVE ANY POWER TO REVIEW OUR OWN DECISION U/S 254(2) OF THE ACT. 6. IN THE RESULT, THIS M.A. APPLICATION OF THE ASSE SSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/09/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 26 TH SEPTEMBER, 2014 * RANJAN COPY FORWARDED TO :- 1. SMT. ARUNA PALIWAL, JAIPUR. 2. THE I.T.O., WARD 6(3), JAIPUR. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (M.A. NO. 44/JP/2012) BY ORDER, AR ITAT JAIPUR.