TaxTMI 
TaxTMI 
2015 (11) TMI 183
X X X X Extracts X X X X
X X X X Extracts X X X X
....see himself declared that out of the total land, 625 sq.m. land was commercial and 5104 sq.m. was agricultural one, more so when the assessee himself intended to commercially develop that land and already submitted a proposed Map to MDA for the same. 3. Whether on the facts and circumstances of the case the Commissioner of Income-tax (Appeals) was justified in holding that the land was under developed, agricultural and provisions of section 50C of the IT Act, 1961 were in-applicable while the facts on record proved otherwise. 4. Whether in the facts and circumstances of the case, the Ld. Commissioner of lncome-tax (Appeals) has erred in deleting the additi9P of Rs. 29,580/- made on account of running expenses inspite of the fact that the assessees had not maintained any log book for the purpose of car running expenses to distinguish between the personal use and business use of Car? 5. Whether in the facts and. circumstances of the case, the Ld. Commissioner of Income-tax has erred in deleting the addition of Rs. 23,916/- made on account of telephone expenses inspite of the fact that the assessee had not maintained any call registers? 6. In the facts and circumstances of the cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....term capital loss in the hands of the assessee comes at Rs. 1,01,762/-. After adjusting this loss against the long term capital gain as mentioned above, assessee is in net long term capital gain of Rs. 1,80,40,661/-, in place of Rs. 32,34,921/-. Therefore, the difference of Rs. 1,48,05,740/- is being added under this head of income. 4.1 The assessee has debited Rs. 1,77,475.54 as repair, running and maintenance of vehicle. Since no logbook is being maintained by the assessee, personal use cannot be ruled out therefore, 1/6th of the same has been disallowed i.e. Rs. 29,580/- by AO. Assessee has also debited telephone expenses for Rs. 1,43,494.13. 1/6th of the same has also disallowed as personal use which cannot be ruled out thereof i.e. Rs. 23,916/-. The AO assessed the total income of Rs. 1,87,66,173/- vide his order dated 28.12.2007 passed u/s. 143(3) of the I.T. Act, 1961. 5. Against the assessment order, assessee filed an appeal before the Id. First Appellate Authority who vide impugned order dated 16/2/2010 has partly allowed the appeal of the assessee. Now the Revenue is aggrieved against the impugned order and filed the present appeal before the Tribunal. 6. At the time o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3,482 Ground No. 1 to 3: 1. Written submissions filed before the Ld. CIT(A) placed at pages 1-12 of the paper book. 2. Agricultural land situated at Khasra No. 204 and part of Khasra No. 207 measuring 5104 sq. mtr was sold for Rs. 55,00,000 vide Agreement to sell (unregistered) dated 16/08/2004, copy placed at pages 33-36 of the paper book. It is pertinent to point out here that no stamp duty was paid on such land as it was sold through Agreement to sell and not through registered sale deed. The said land was not touching the main Delhi- Meerut road. 3. Copy of Khatauni to prove ownership of the above mentioned agricultural land sold by the Assessee at pages 37-38 of the paper book. 4. Copy of sanctioned plan dated 28/09/2004. for proposed residential colony i.e. Shyam Enclave, Meerut is placed at pages 47 of the paper book from which it is evident that part of Khasra No. 207 is touching the main Meerut-Delhi Road. 5. Agricultural land measuring 625.92 sq. mtr. which was touching the main Delhi - Meerut Road, near Amar Ujala Newspaper Office, Meerut (part of khasra No. 207) was sold for Rs. 15,00,000 vide registered sale deed dated 20/07/2004, copy placed a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0 As regards Cross Objection, the same is hereby withdrawn." 8. We have heard both the parties and perused the relevant record available with us specially the orders passed by the revenue authorities and the synopsis filed by the Ld. Counsel for the assessee. With regard to ground no. 1, 2 & 3 raised in the Revenue's Appeal, we find that the Ld. CIT(A) has elaborately discussed the issues and adjudicated the same in his order. For the sake of convenience, the relevant findings vide para no. 6.7 at pages 13 to 18 are reproduced hereunder:- "6.7. Decision & Reasons therefor: I have gone through the relevant facts emanating from the assessment order, the Remand Report & the Rejoinder to the Remand Report carefully. Regarding the 2nd piece of land, the basic reasons for holding the view as the A.O. has done are as under: i) The two plots contained in Khasra No. 204 and 207 constitute one single piece of land & the assessee's contentions that the plot at the front which was transferred by a registered deed was commercial while the plot at the back which was transferred by unregistered agreement was agricultural & had no commercial value are not correct. The A.O. has stated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lar point of time. ii) According to the AR, section 5OC has no application unless and until the sale registered with the registrar of document and Registrar of Stamp duty. As no registered sale took place, section 50C is not applicable and even if applied, it cannot exceed Rs. 1150/- per sq. yard as explained. In this regard a recent decision of the Jodhpur Bench in the case of Navneet Kumar Thakkar vs. I.T.O. Ward-4 was relied upon and it was argued that it is clearly applicable in the appellant's case with reference to the second land sold through an unregistered agreement wherein it has been held that section 50C of Income Tax Act would not come into operation unless property transferred has been registered by sale deed and for that purpose value has been assessed and stamp duty has been paid by parties . It was further held by the court that in such a situation position existing prior to section 50C would apply and onus would he upon revenue to establish that sale consideration declared by the assessee was understated with some clinching evidence. As ruled by the Tribunal in the instant case, the assessee transferred the property in question by executing an agreement which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made at lesser value than the stamp value. The assessee has sold the second agricultural land for Rs. 55 lac. As the assessee has sold the agricultural land on agreement basis the circle rate is not applicable as section 50C is not applicable. Without prejudice to the facts mentioned above, circle rate of the agricultural land at that time was Rs. 50 lac per hectare. Therefore section 50C is not applicable on this issue. The A.O. tried to compare first land which is industrial plot just adjacent to the main road. However, this agricultural land is approximately at Rs. 1100/- per sq. meter behind the main road. Therefore, the circle rate of the rear portion cannot be equated to the main road value. In support of his contentions, the A.R. has adduced following evidences: i. Copy of different Bainamas (Purchase Deeds) ii. Copy of Khatauni showing the land as Agricultural in revenue records in February' 2008 iii. Copy of Khasra showing the crop grown on the above land as on March' 2008 iv. Copy of Circle rate applicable to the second land in Annexure-7 issued by the District Authorities. In the light of the above facts and evidences on record; I hold as under:- (i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tered by sale deed and for that purpose value has been assessed and stamp duty has been paid by parties Sec. 5OC inserted by Finance Act, 2002 with effect from 1-4-2003, cannot come into operation. It has been further heldby the Hon'ble Court that in such a situation, position existing prior to Sec. 5OC would apply and on would be upon revenue to establish that sale consideration declared by the assessee was understated with clinching evidence. I was further held by the Hon'ble court that where the assessee transferred property in question executing an agreement which was not registered with registering authority, Sec. 5OC could not have come into operation. Therefore, addition made on the basis of deemed sale value is uncalled for. It is held that section 50C is not applicable in respect of the transfer of second land (6103.39 sq.yards) and the addition is deleted. " 8.1 We have heard both the parties and perused the relevant records available with us, especially the orders of the authorities below alongwith the Written Synopsis filed by the Ld. Counsel for the assessee, we are of the considered view that Ld. CIT(A) has thoroughly gone through the assessment order alongw....