2022 (8) TMI 376

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... Ld. Commissioner of Income Tax (Appeals) further erred in rejecting the registered sale agreement Dt.08.07.2010. Prayed to delete the addition of Rs.1,96,18,540/-. 4. Without prejudice, that the Ld. Commissioner of Income Tax (Appeals) further erred in taking the value of sale at Rs.2,16,08,500/- as against Rs.1,79,01,000/- which is unjustified, the addition of Rs.1,96,18,540/- 5. That the Ld. Commissioner of Income Tax (Appeals) further erred in not considering, without prejudice, that the capital gain was exempt u/s.54F as the sum actually received was invested in the residential house and that it was not possible to invest the amount worked out as per sec 50C as the amount was not received by the appellant. Prayed to delete the addition of Rs.1,96,18,540/- 2. Though the assessee has raised as many as five grounds, however, the only effective ground is with regard to confirming the addition made by the AO of Rs.1,96,189,540/- on account of Capital Gain on sale of land. 3. Brief facts of the case are that the assessee is an individual and filed its return of income on 07.08.2012 declaring total income of Rs.10,03,860/-, which was processe....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....adopted should be valuation of the land as on the date of agreement to sale taken by the stamp authorities and not as on the dated of registration of sale deed. Therefore, the ld. AR submitted that the addition made by the Ld AO and confirmed by the CIT(A) was bad in law and deserves to be deleted. 6. On the other hand, ld. Sr. DR vehemently supported the orders of the lower authorities and submitted that both the authorities below have rightly applied the provisions of Section 50C of the Act as the provisions of Section 50C of the Act prevails for the capital gain arising from transfer of land or building or both. 7. We have considered the rival submissions and perused the material evidence available on record. On perusal of the record, we found that the assessee transferred and handed over the possession of the land on 09.07.2010 for Rs.4,08,000/- to Vikash Kumar Agrawal as per the agreement to sale of land, copy of which is enclosed at pages 3 to 13 of the paper book, also the payment of consideration was made for entire consideration of Rs.4,08,000/-. During the course of assessment proceedings, the AO noted that in the present case, there was no transfer of land within t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....aced on the coordinate bench of the Tribunal in the case of Shri Ajay J. Mehta, ITA No.1127/Ahd/2018, wherein the Tribunal has held as under:- 5. With the assistance of the ld. representatives, we have gone through the record carefully. Before we embark upon an enquiry on the facts of the present case, let us take provision of section 48 of the Act, which provides mechanism for computation of capital gain. Section 48 postulates the following conditions: (i) expenditure incurred wholly and exclusively in connection with such transfer, and (ii) the cost of acquisition asset and the cost of any improvement thereto. 6. Further, section 50C of the Act provides that where the consideration received or accruing as a result of transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any 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. In other words, full consideration mentioned in section 48 is to be replaced by the consideration on whic....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... part payment of consideration must be through bank channel because that can avoid manipulation of agreement at the end of the party for avoiding determination of deemed consideration under section 50C of the Act. This aspect has been considered by the ITAT, Ahmedabad Benches in large number cases and the ld.CIT(A) has referred the decision of ITAT in the case of Dharamshibhai Sonani in ITA No.1237/Ahd/2013 in the finding extracted (supra). In the present case, we find that there are two different dates. One is 23.12.2010 when the assessee entered into an agreement for sale of this property and another 29.9.2011 when the sale deed was ultimately registered. At the time of agreement and prior to that the assessee has received part payments through negotiation. Such payments have been received through account payee cheque. He received Rs.25 lakhs on 26.2.2011 and Rs.10.00 lakhs on 13.10.2010. This part payment makes it clear that a valid agreement to sell was executed. Between the date of agreement vis-à-vis ultimate registration of sale deed, the State Government has revised valuation of the property for the purpose of charging stamp duty. This case of the assessee do fall wi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....le, and what we decide for one litigant must hold good for all other similarly placed litigants as well. We, therefore, decline to entertain this plea of the assessee. 9. We have noted that as against the stated consideration of Rs 75,00,000, the stamp duty valuation of the property is Rs 79,91,500. The difference is just Rs 4,91,500, which is about 6.55% of the stated sale consideration. As the difference between the stated consideration vis-à-vis the stamp duty valuation is admittedly less than 10% of the stated consideration in this case, and in the light of the above discussions, we are of the considered view that Section 50C will have no application in the matter. The enhancement in capital gain computation, as made by the Assessing Officer, thus stands disapproved. The assessee gets the relief accordingly. 10. As we have decided the appeal on the short issue regarding the retrospective effect of the third proviso to Section 50C(1), as elaborated above, we see no need to deal with other issues raised in the appeal before us. As of now, those issues are infructuous and do not call for any adjudication at this stage. 11. In view of the above judicial ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....1 कैफियत एवं सबब् :- यह कि उपरोक्त वर्णित भूमि मेरे हक भूमिस्वामी स्वत्व की भूमि है। जिसे रकम की आवश्यकता होने के कारण उपरोक्त अनुबंधग्रहिता के पास मावाजे का 75 प्रतिशत प्रतिफल प्राप्त कर भूमि बिक्री कर दिया। शेष 25: प्रतिफल राशि भूम....