TaxTMI 
TaxTMI 
2021 (6) TMI 540
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....Registration of Conveyance of property and its sale transaction. The CIT(A) has further erred in holding the action of the AO in adopting such higher Sale value of Land at Rs. 90,19,200/- on arbitrary basis based on an internal departmental communication and incomplete proceedings under the Stamp Law and based on same making addition of Rs. 14,19,200/- under the Income head "Income from Capital Gains". Such higher replaced Value of Land for Stamp Duty purposes having neither been conveyed to the Parties to the transaction nor any additional stamp duty on such incremental value of land having been recovered from the parties to the transaction in the 12 year period after such date of actual registration of Document on 28/30.05.2008. Further, while doing so, the CIT(A), overlooking a specific clarification on the issue sought by the company under RTI Act from the Dy. Inspector General of Stamps dt. 5th Feb.,2018 who outrightly denied of any such Revisional proceedings which were relied upon by the AO for re-opening the case after 8-9 years and in reassessing the total income." 2. At the outset, it is noted that there is a delay in filing the present appeal by the assessee company. ....
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....t appeal and mere pendency of a rectification application cannot be the ground for condoning the delay in filing the present appeal before the Tribunal. 4. Heard both the parties and pursued the material available on record including the affidavit filed by the assessee in support of its condonation application. In the instant case, we find that there has been a change in the jurisdiction of the Commissioner Appeals during the pendency of the appeal where the matter was heard initially by ld CIT(A) Jaipur and thereafter, by ld CIT(A), Ajmer who has finally passed the impugned order and during such appellate proceedings, the assessee has filed certain clarification regarding reference/revaluation of the value of the property which has been obtained and received in response to its RTI application and which has apparently skipped the attention of the ld CIT(A) and thereafter, the assessee has been pursuing the matter seeking rectification which is pending adjudication till date. We therefore find that where the assessee claims that such a clarification which has been issued by a competent regulatory authority is critical for determining the issue at hand and the matter was regularly....
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....of the Property which was above the estimated and assessed Stamp Duty Value by the Stamps & Registrations Authorities, which action in any manner cannot be considered to be: a. A failure on part of the Assessee in disclosing fully and truly all material facts necessary for its assessment for that A/s Yr. [First Proviso to Sec.147] or b. Understatement by the Assessee of its Income or claiming excessive Loss/ deduction/ allowance/ relief in the return.[Explanation 2 (b)to Sec.147] OR c. the Assessee fulfilling any of the other conditions prescribed under the Sec.147 for justifying the action of reopening/ reassessment. 1.3 Pursuant to the Notice u/s 148 issued to the company, the Co. demanded copy of 'Reasons Recorded' alleging escapement of assessment/ income and in response to which, the AO, vide its Letter No. 180 dt. 24.04.2016 furnished the following reasons for issuance of Notice U/s 148 for Reassessment : "During the year the assessee company sold a property for Rs. 76,00,000/- on 28.05.2008. As per information received from sub-registrar of Jaipur district. The sub registrar has valued the property at Rs. 90,19,200/- against the v....
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....p Act, 1998 ii. No revisions of reference can be made without affording the parties and opportunities to provide their objections, which was never done in the 7 year period since such alleged reference. iii. No Notices received for any such proposed revision alleged either by the Purchaser or Seller parties nor any remain pending as per parties confirmation. iv. The above Notice neither mentions the area of property or the basis for its Proposed revision or even the date of such subsequent visit for reassessment etc. v. Alleged reference so made remains unconcluded till date in absence of any reference to the date of any such approval having been given. Thus any reliance on an unconcluded reference/ proposal for revision in value of properties is bad in law and against the provisions of natural justice and hence to be dropped. 1.7 Further, without prejudice to the aforesaid, even the Provisions of Sec. 50C of ITA do not permit any such Reassessment on Revision of Stamp Duty Value of the Property. The reference in the section is to the "value adopted or assessed (or assessable) by any authorities of the state govt. (Stamp Valuation Author....
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....er been conveyed to the Parties to the transaction nor any additional stamp duty on such incremental value of land has been deposited by the parties to the transaction in the 8 year period after such date of actual registration of Document on 28/30.05.2008. Thus adoption of such arbitrary value of Rs. 90,19,200/- under provisions of Section 50C in place of the actual Transaction / Registration value of Rs. 76,00,000 and accordingly making addition to Total Income is thus bad in law. Submissions: 2.1. It is more then clear from a simple reading of Sec.50C of ITA that " the value adopted or assessed by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall, for the purposes of section 48, be deemed to be the full value of the consideration received. " 2.3. The Assessee company offered its income for taxation on the basis of a duly registered Sale Deed considering its value by the then Stamp Authorities at Rs. Rs. 76,00,000 and thus its such action cannot be deemed to be a failure in dis....
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....ed any document / intimation from the Stamp Authority for imitation of such proceedings and the correspondence dt. 15.11.2016 as shared were only subsequent clarification sought which too was inadequate since not referring to any conclusion by the Superior Authorities to the alleged reference made by the Stamp Authorities in the matter. Further under any rule of Law, such revisions or alleged revisions after such long time gaps of 7-8 years without even any opportunity being afforded to the effected parties is against the Rule of Law and is objected to. 2.8 The assessee company through its advocate Mr. Ajay Kumar Bhargava, who also assisted the company in the process of Registration of Sale Deeds in 2008, also made an enquiry in the matter of any such reference made by the Sub Registrar-IV, Jaipur vide communication dt. 21.01.2009 to his Superior Officer but despite a reasonable effort of his at the office of the Collector Stamps to ascertain the outcome of such Reference on 21.01.2009 made in the matter of revaluation / reassessment of the property sold but despite all the efforts, could not arrive at any trail of such Reference or of its revision/ revaluation. Nor any pe....
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....2009 was received by the said Dept. of Dy. Director Stamps . and ii. Nor any such Order passed in any such reference. 2.12. The above Clarificatory Reply dt. Feb.5th, 2018 of the Dy. Director, Stamps, Govt of Rajasthan, as shared with the AR by the assessee company was accordingly furnished to the then CIT(A)-2, Jaipur with "Supplementary Written Submissions" on 20th July, 2018 who heard and closed the Appeal hearing on said date. The Appeal No. then being E-308/16-17 with CIT(A)-2, Jaipur. 2.13. Unfortunately thereafter, the Order in said Appeal remained to be passed by the learned CIT(A)-2, Jaipur despite the hearing having been concluded by her and the case got transferred under certain administrative powers of the CCIT or equivalent, and for which no formal intimation/advise in the matter was issued to the Assessee company. 2.14. Later on 13.10.2018, the AR of the Assessee company received a Notice of hearing dt. 10.10.18 for the very same A/s Yr. in case of the Assessee but with different Appeal No. viz., 92/2016-17 from CIT(A), Ajmer for hearing on 17.10.2018 camping at Jaipur at ITAT building. On which date (17.10.2018), the AR of....
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.... iii. Written Submission before CIT (A) in Reass. Procd. Dec., 17 - 1st Resubmission iv. Supplementary Submission on 16.2.18 - 2nd Resubmission v. Reply from Registration and Stamp Dept., Govt. of Rajasthan again RTI dt. 5.2.18 b. By 2nd e.mail dt. 18.10.2018 at 16.20 pm with which filed.... 1. Power of Attorney in favour of AR Firm and its Partners/ Associates. c. By 3rd e.mail dt. 22.10.2018 at 12.18 pm with which filed.... 1. Application requesting adjournment of hearing dt. 17/10/2018* 2. Power of Attorney in favour of AR Firm and its partners/ Associates. *acceptance of which was refused on 17.10.20 for want of POA & Appeal Folder not being readily available 2.17. Though vide the first 2 emails, above dt. 17th & 18th October, the Jr. Partner Mr. Kailash Thathera, submitted the required documents, he missed on sending the said " Adjournment Application" dt. 17.10.2018, which his Sr. Partner had asked him to submit. Hence when Mr. Pramod Patni resumed office after the mourning period as well as an intermitted office holiday, when he enquired of such Adjournment Application having been filed....
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....rsonally during a subsequent Camping Bench at ITAT office, Jaipur on 14th Nov.,2018 explaining the entire matter and drawing attention to the fact that it was a clear case of Mistake Apparent from Records and hence Rectifiable by him based on all the submissions made by mail before him on 17th Oct.,2018 itself. b. Though unusual for the CIT(A), Ajmer but with minor persuasion, sought his explicit consent to the Assessee filing a Rectification Application to set right the anomaly in the Order and accordingly submitting a Rectification Application with all Attachments relied on by e. mail by the AR, on 16.11.2018 itself. c. The above Rectification Application with all Supporting Documents relied upon, further sent by the CA office by Regd. Post to CIT(A)- Ajmer as per Copy of Regd. AD Receipt dt. 17th Nov.,2019 attached. 2.21 Here attention is also drawn to yet another Notice dt. 14.11.18 for Hearing in Appeal on 22.11.18 for the same Year as A/s Yr. 2009-10 in the case of the above Assessee company under reference of Appeal No. E-308/2016-17 received, which too was carried by the AR to meet the Learned CIT(A)- Ajmer on 14.11.18 itself along with the Copy o....
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....by the Stamp Duty Authority was Rs. 90,19,200/- as against declared sale consideration of Rs. 76,00,000/- by the assessee in its return of income. Therefore, the AO was having sufficient material to form an opinion that income amounting to Rs. 14,19,200/- chargeable to tax has escaped assessment. Accordingly, the reopening of assessment of the A.Y 2009-10 u/s 147 and issue of notice u/s 148 are in accordance with the provisions of law. It was further submitted that during the course of reassessment proceedings, in response to notice u/s 133(6), the stamp duty authority vide letter No. 1223 dated 15.11.2016 has informed the AO that the value of property has been revised after on-spot verification and value of the property has been enhanced from Rs. 76,00,000/- to Rs. 90,19,200/- and after hearing the assessee and giving the reasonable opportunity, the Assessing Officer has invoked the provisions of section 50C of the Act by taking the value of Rs. 90,19,200/- for the purposes of computing long term capital gains. It was accordingly submitted that there is no infirmity in the said order passed by the Assessing Officer and confirmed by the ld. CIT(A) and the order so passed by the ....
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....session of the AO rather it is a case of complete absence of any information or material prior to recording of reasons and issuance of notice u/s 148 and in light of the same, the reassessment proceedings deserve to be quashed and set-aside. 9. On merits, the AO has relied upon communication received from office of sub-registrar dated 15.11.2016 and 29.11.2016 to hold that the value of the property has been revised at Rs. 90,19,200/- as against value of Rs. 76,00,000/- determined at the time of execution of registry and has considered the revised value of Rs. 90,19,200/- in terms of section 50C for determination of long term capital gains. 10. In his submissions, the ld AR has stated that the sub-registrar has referred to revaluation of property and reference of which was made to superior authority vide letter dated 21.01.2009 and it was submitted that there was no notice for revaluation to either the purchaser or the seller of the property, no order for such revaluation is made till date or available on record and even no stamp duty has been demanded and/or paid by either of the parties. It was further submitted that regarding so called reference to superior authority vide l....