ITO, Alwar V. SAVITRA SINGH, Jaipur

MA 73/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7126 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-08-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 11-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift
• Section: 50C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, 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 VK;DJ VIHY LA-@ MA NO. 73/JP/18 ( ARISING OUT OF ITA NO. 142/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 THE ITO, WARD-1(4), ALWAR. CUKE VS. SMT. SAVITRA SINGH W/O RAO SAJJAN SINGH, C/O RAO EDUCATION ACADEMY, VILLAGE- KOTHI NARAYANPUR, RAJGARH, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BMBPS 8569 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C. KULHARI ( JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/07/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 13/08/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE REVENUE AGAINST THE ORDER PASSED BY THE COORDINATE BENCH IN ITA NO. 142/JP/2017 DATED 29.06.2017. 2. THE LD. DR HAS SUBMITTED THAT THE COORDINATE BEN CH HAS ALLOWED THE APPEAL OF THE ASSESSEE HOLDING THAT THE PROVISI ONS OF SECTION 50C OF THE ACT ARE NOT ATTRACTED IN THE INSTANT CASE AND H AS RELIED UPON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL I N CASE OF ITO VS. TARA M.A. NO. 73/JP/2018 ITO VS. SMT. SAVITRA SINGH 2 CHAND JAIN 155 ITD 956. IT WAS FURTHER SUBMITTED TH AT THE DEPARTMENT HAS MOVED AN APPEAL BEFORE THE HONBLE RAJASTHAN HI GH COURT AGAINST THE SAID ORDER PASSED BY THE COORDINATE BENCH AND T HE FOLLOWING SUBSTANTIAL QUESTIONS LAW WERE FRAMED FOR CONSIDERA TION BY THE HONBLE HIGH COURT CASE OF PR. CIT VS. SMT. SAVITRA SINGH I N D.B. I.T.A NO. 342/2017 DATED 27.02.2019 AS HELD IN PARA 2 AS UNDE R:- 2. COUNSEL FOR THE APPELLANT HAS FRAMED FOLLOWING SUBSTANTIAL QUESTIONS OF LAW:- (1) WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF TH E CASE THE AO WAS JUSTIFIED IN COMPUTING LONG TERM CAPITAL GAIN ON TH E ADMITTED TRANSFER OF THE CAPITAL ASSET BY GIFT DEED DATED 03.04.2008 BY CONSIDERING THE SALE CONSIDERATION AT RS. 92,80,860/- ON THE BASIS OF TH E ADJUDICATION BY COLLECTOR (STAMPS) ALWAR BY ORDER DATED 15.02.2013 AND THE ORDER DATED 15.02.2013 HAS ATTAINED FINALITY BY WHICH THE ASSESSEE HAS ADMITTEDLY DEPOSITED THE STAMP DUTY OF RS. 6,21,846 /-? (2) WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF TH E CASE THE TRIBUNAL HAS COMMITTED AN ERROR OF LAW IN DELETING THE ADDIT IONS MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN ON ADMITTED FACT THAT ASSESSEE HAS PAID STAMP DUTY OF RS. 6,21,846/- AFTER ADJUDICATIO N BY COLLECTOR (STAMPS) ALWAR AND THEREFORE WOULD EXPOSE THE ASSES SEE TO PAY LONG TERM CAPITAL GAIN U/S 50C READ WITH SECTION 2(47) O F THE I.T. ACT? (3) WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF TH E CASE THE ITAT WAS JUSTIFIED IN HOLDING THAT THE PROVISIONS OF SEC TION 50C ARE NOT ATTRACTED IN THE CASE AND DELETED THE ADDITION ON T HE LONG TERM CAPITAL GAIN OF RS. 91,71,313/- MADE BY AO WHEN THE TRANSAC TION IS COVERED U/S 2(47) OF THE I.T. ACT, 1961? M.A. NO. 73/JP/2018 ITO VS. SMT. SAVITRA SINGH 3 3. IT WAS FURTHER SUBMITTED BY THE LD DR THAT DURIN G COURSE OF HEARING, THE COUNSEL FOR THE DEPARTMENT HAD SUBMITT ED BEFORE THE HONBLE HIGH COURT THAT THE COORDINATE BENCH DECISI ON IN CASE OF ITO VS. TARA CHAND JAIN (SUPRA) WILL NOT APPLY IN THE F ACTS OF THE PRESENT CASE, THEREAFTER THE HONBLE HIGH COURT HAS HELD TH AT THE APPROPRIATE REMEDY AVAILABLE TO THE DEPARTMENT IS TO APPROACH T HE TRIBUNAL AND POINT OUT THAT THE JUDGMENT IN CASE OF TARA CHAND ( SUPRA) WILL NOT APPLY IN THE FACTS OF THE PRESENT CASE. IT WAS ACCO RDINGLY SUBMITTED THAT THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE DEPARTMENT TO EXAMINE AS TO WHETHER THE JUDGMENT IN CASE OF TA RA CHAND JAIN WILL APPLY IN THE FACTS OF THE ASSESSEE OR NOT. 4. PER CONTRA, THE LD. AR DID NOT OPPOSE THE MISCEL LANEOUS APPLICATION SO FILED BY THE REVENUE. IT WAS FURTHE R SUBMITTED BY THE LD. AR THAT EVEN THOUGH THE COORDINATE BENCH HAS HELD T HAT THE PROVISIONS OF SECTION 50C OF THE ACT ARE NOT APPLICABLE BUT WH ETHER THE TRANSACTION WHEREBY THE LAND AND BUILDING WHICH HAS BEEN GIVEN ON LEASE AMOUNT TO TRANSFER U/S 2(47) OF THE ACT HAS NOT BEEN EXAMI NED. IT WAS ACCORDINGLY SUBMITTED WHERE BENCH SO DECIDE TO RECA LL ITS EARLIER ORDER, THE ORDER MAY BE RECALLED IN ITS ENTIRETY AND BE HE ARD AFRESH ON MERITS. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE HONBLE RAJASTHAN HIGH COU RT IN CASE OF PR. CIT VS. SMT. SAVITRA SINGH IN D.B. I.T.A NO. 342/2017 D ATED 27.02.2019 HAS HELD IN PARA 7 AS UNDER:- M.A. NO. 73/JP/2018 ITO VS. SMT. SAVITRA SINGH 4 7. IN OUR CONSIDERED OPINION, THE APPROPRIATE REME DY AVAILABLE FOR THE APPELLANT IS TO APPROACH THE TRIBUNAL AND POINT OUT THE TRIBUNAL THAT JUDGMENT IN TARA CHAND (SUPRA) WILL NOT APPLY IN TH E FACTS OF THE CASE. 6. IN LIGHT OF ABOVE AND THE CONTENTION SO RAISED BY BOTH THE PARTIES, THE EARLIER ORDER PASSED BY THE COORDINATE BENCH IS HEREBY RECALLED IN ITS ENTIRETY AND THE REGISTRY IS DIRECT ED TO FIX THE MATTER IN DUE COURSE. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED WITH ABOVE DIRECTION. ORDER PRONOUNCED IN THE OPEN COURT ON 13/08/2018. 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:- 13/08/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ITO, WARD-1(4), ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- SMT. SAVITRA SINGH, 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. 73/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR