TaxTMI 
TaxTMI 
2011 (12) TMI 552
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....mpt u/s 54EC by investing ₹ 4,30,000/- in the Bonds of Rural Electrification Board. The AO asked the assessee to submit copy of registered deed for sale of land. The assessee has submitted copy of four sale deeds for area of land measuring 0.6695 Hectare as under:- S.No. Name of the purchaser Area Amount of Sale Value for Registry 1 Shri Gyan Singh & others 0.1680 116500 435417 2 Shri Poona & others 0.1685 117000 436690 3 Shri Vinod Kujbanda & others 0.1776 123000 459606 4 Shri Deva Ram & others 0.1555 107000 403588 Total 0.6696 463,500 17,35,301 In view of the above it was clear that the sales consideration was less than the value adopted by theRegistering Authority for stamp duty purposes. Section 50C of the Act specify the provisions in the situations when the value adopted by registering authorities is more than the sales consideration declared by the assessee. The AO extracted the relevant part of section 50C. 4. The A0, therefore, asked the assessee as to why the value adopted by the Sub Registrar should not be adopted for calculation of capital gain. In response to which the assessee submitted that the assessee has executed agreement to ....
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....ssessee paid capital gain for which pray for refund. Without prejudice to above the value adopted by the stamp valuation authority u/s 50C( I) is exceeds the market value as on 3-9-2003. 5. The AO considered the explanation of the assessee and observed that the facts narrated by the assessee may correct that he sold the property to Shri Ashok Parikh and Shri Chain Singh on 3-9-2003 and on the next day, he issued a power of attorney in the name of Devki Nandan Gujar, who made registry in the name of other persons on the direction of Shri Ashok Parikh and Shri Chain Singh . But these facts do not affect the tax liability on capital gain of the assessee. Had the registry been made in the name of Shri Ashok Parikh and Shri Chain Singh instead of other persons even then the value assessed by the stamp valuation authority would have been same. Therefore, whatever the facts of the case may be but the provisions of section 50C of the Act clearly provides that in the case where sales consideration actually received is lower than the value adopted or assessed by the stamp valuation authority for the purpose of payment of stamp duty then the value assessed by the stamp valuation authority s....
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....ld the property on the basis of the agreement. The ld.CIT(A) has referred to the fact that the AO has recorded the statement of Shri Ashok Parikh u/s 131 of the Act. Shri Ashok Parikh stated that he has neither executed the agreement with the assessee nor made any payment against such agreement to sell. The AO has also recorded the statement of Chain Singh on 27-7-06 u/s 131 of the Act. In it , he stated that he executed the agreement to sell of ₹ 7.51lacs for purchase of agricultural land of the assessee but the said agreement could not be materialized as he could not make payment for want of funds. 2.4 The assessee submitted that he has received sale consideration of ₹ 7.51 lacs from shri Chain Singh and sale consideration is mentioned in the personal cash book of the assessee. The possession of the ownership right of the land were transferred to the purchaser by handing over the possession of the land for the purpose of above agreement to sell. Before the ld.CIT(A), it was submitted that the contents of the affidavit filed by the assessee were not rebutted by the AO and therefore, these affidavits are to be accepted. For this purpose, reliance was placed on the Hon&....
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....ased vide registry dated 26-2-1980 was in the name of Shri Mukesh Kumar, the son of the appellant. 37. On going through the facts of the case I found that the AO was justified in adopting the sale consideration u/s 50C of the Act. However, the AO should have taken area of land sold as per the documents registered at 0.6696 hectare. Therefore, the AOwas not justified in proportionately adopting the sale consideration on whole land of 1.045 Hectare which is only on presumption and not in accordance with the provisions of section 50C. The DVO taken the value at ₹ 27,08,000/- for 1.045 hectare on the basis of value adopted by the stamp duty authority and not for 0.6696 hectare. The AO has also not collected any material to show that the appellant sold the entire property. Therefore, the AO should have ; ; adopted the value as per the registered documents. From the registered documents also it is very clear that the appellant has not sold the entire property which is evident from Araji No. given in the document as 1834,1835,, 1831, 1833 and no where mentioned the sale of Aaraji No.1838 measuring 0.1550 Hectares. Therefore, the AO was not justified in taking the value by increasi....
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....n whose name this agreement was executed was also witness. This means that those parties never objected to the sales made by the assessee through his power of attorney holder. The AO has recorded the statement of Shri Ashok Kumar Parikh u/s 131 of the Act. He stated that same agreement was prepared but after making physical inspection of the property, he took decision of not purchasing this property. The AO recorded the statement of Shri Chain Singh. He also stated that the agreement was executed but they were not able to make payment and therefore, property was sold by the assessee to other party. Looking to the facts and material evidence available on record, it cannot be inferred that the assessee has been able to establish that the land was sold through agreement. It has also not been established that the assessee has handed over the possession as part performance of the contract of agreement to sell. The properties have been transferred through registered sale deed. If the disposition of the property is reduced in the form of agreement then no oral evidence contracting/ varying terms of the documents are not acceptable. Reliance is placed on the decision of Hon'ble Punjab....
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....on at Nil for the land measuring 0.3754 hectare as two registries were not produced before the AO. 6.2 The ld.CIT(A) in para 37 of his order has observed that the assessee has not sold the entire property. The land mentioned in Araji No. 1838 has not been sold. The AO has also not collected any material to show that the assessee has sold entire property. 6.3 Before us, the Revenue has not placed any evidence to show that the assessee has sold entire land. We therefore, feel that the ld.CIT(A) was justified in considering the capital gain in respect of land to the extent of 0.6696 hectare and thus the Ground No. 2 of the Revenue is dismissed. 7.1 The third ground of the Revenue is that the ld.CIT(A) has erred in holding that the expenditure incurred for the registry and stamp were not incurred by the assessee but incurred by the power of attorney holder out of sale consideration. 7.2 In the ground of appeal, it is mentioned that the assessee has deposited the entire sale consideration of ₹ 7.51 lacs in his saving bank account. There is no withdrawal from the bank account except for Bond of ₹ 4.00 lacs. This issue has been considered by the AO at pages 8 and 9 of the ....