TaxTMI 
TaxTMI 
2022 (11) TMI 30
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....ach of law. Hence the assessment so made and consequent additions so made may kindly be quashed and delete. 2. The ld. CIT(A) has erred in passing the order partly taking in to consideration our WS and paper book filed during the course of physical hearing on 05.11.2019 and providing adequate and reasonable opportunity of being heard in the gross breach of law. Hence the additions so made by the Id. AO may kindly be quashed and delete. 3.1 Rs.18,22,250/- : The Id. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the addition of Rs.18.22.250/- on account of Long Term Capital Gain on sale of sale of agriculture land which is otherwise exempt(being out of Municipal Limit applicable and not being a capital assets) and also erred in the action of the Id. AO in taking the higher value adopted by the Stamp Authority in place of actual sale consideration mentioned in sale deed and received by the assessee, while determining the LTCG. Hence the addition so made by the AO and confirmed by the Id. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the addition may kindly be deleted in full. 3.....
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....ri Kailash Chand Pareek S/o Shri Sita Ram, Bhanwari Devi W/o Shri Mangla Ram, ,Village Rekhiawaniyan Ki Dhani, Rigus, Kalu Ram, Jogendra S/o Mohan Nath, Jivani W/o Mohan Nath, Buti Nath S/o Bal Nath Jogi, Village-Ringus, Tehsil-Shrimadhopur (Sikar) at Rs.38,00,000 paying the stamp duty of Rs.4,00,000/- on 11-02-2005 in which the assessee's share is Rs.5,25,000/-. In the case of the assessee, the AO calculated the long term capital gain as under:- S.N. Particulars Cost of acquisition LTCG 1. Sale consideration 25,13,500/- 2. 3. Cost of property (assessee's share) a And Indexed cost of property 5,25,000/- (cost of property - 4,75,000/-& stamp duty -50,000/5,25,000x632/480 = 6,91,250 18,22,250/- Thus according to the AO, the long term capital comes to Rs.18,22,250/- and after proper verification of the above information from the record, the assessment proceedings u/s 147 of the Act for the assessment year under consideration was initiated by the AO after recording the reasons as well as taking prior approval of Pr. CIT-3, Jaipur vide her letter dated 17-03-2017. Thereafter, notice u/s 148 of the Act was issued on 17-03-2017 by the AO....
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.... date of filing of return income for the assessment year consideration. Thus according to the AO, the deduction u/s 54B of the Act of Rs.12,87,500/- was not allowed as the assessee purchased the immovable property before the due date of filing of return of income or the amount of capital gain account should be deposited in capital gain account scheme where the assessee failed to follow the relevant concerned terms and conditions for deduction u/s 54B of the Act. Therefore, the AO did not allow deduction u/s 54B of the Act to the assesse. Thus after considering the facts and circumstances of the case, the income of the assessee is calculated by the AO as under:- 1. Income as per return not filed Rs.Nil 2. Long Term Capital Gain Rs.18,22,250/- Total Taxable income (LTCG) Rs.18,22,250/- 2.2 In first appeal, the ld. CIT(A) sustained the action of the AO by observing as under:- ''5.3 The AO has recorded at page 3 of the assessment order that the appellant claimed the deduction u/s 54B of the Income Tax Act, 1961 against the agriculture land situated at Village-Chirada, Patwar halka-Khorashyamdas, Tehsil- Amer (Jaipur) was purchased by her al....
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....he action of the AO for which the ld. AR filed the detailed written submission and thus prayed to delete the addition confirmed by the ld. CIT(A). ''SUBMISSION:1. Correct facts: At the very outset we wants to bring correct facts before your honor which have been ignored by the ld. AO and ld. CIT(A) both despite available before them. The correct facts of the case are that the group of assessee's jointly (seven persons, in the ratio of 1/8th Suji devi in 1/4th) had purchased the agriculture land measuring 5.93 Hectares situated at Khasra No. 5295 in Village Patwar area/land record Reengus Tehsil Srimadhopur District Sikar for Rs.38,00,000/- and registry cost of Rs.4,00,000/- totaling to Rs.42,00,000/- on dt. 11.02.2005. Thereafter they have sold this land in two part one part by Smt. Santosh Devi, Smt. Suji Devi and Smt. Meera Devi for Rs. 43,50,000/- on dt. 17.03.2010 and other part by Smt. Prem Devi w/o Rameshwar, Smt. Prem W Devi /o Ramji Lal, Smt. Narangi Devi and Smt. Bhagwati Devi for Rs.54,50,000/- on dt. 23.02.2010. While charging stamp duty the Sub Registrar Palsana has valued the property at Rs.1,01,78,240/- and 1,00,54,000/- respectively. For your ready reference....
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....hese vital facts and did not tried to know the actual DLC rate of the said land. Hence the LTCG on the entire lands comes only of Rs.42,70,000/- for all the assessee's as against Rs.1,47,02,240/-. We have failed to understand that how the DLC rate has been adopted by the Sub Registrar Palsana Sikar. It may be that he has adopted the rate for the land situated at Road while the land of the assessee's were situated 200 meter inside the road or after leaving the one khasara from the road. And the rate for the land situated inside the road or after the one khasara from the road is only of for irrigated land was Rs. 3,94,500/- per bhiga and for unirrigated land was of Rs. 2,81,900/- per bhiga in the year 2009-10. Therefore your honor is humbly requested to accept the our above contention and delete the addition to the above extent on this grounds alone, Further we had requested to the ld. CIT(A) that if he is having any doubt about the above, then report of the ld. AO may kindly be obtained after getting full verification and examination of the issue, however he has failed to do so rather confirmed the addition which is against the principal of natural justice. 2.1 DLC....
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....nd rates of property fixed by Stamp Valuation Authority for registration purposes could not be taken to be price for which property might had been sold-There was no justification for AO to estimate selling price of land at Rs. 40 per sq.ft. instead of Rs. 20 per sq.ft. and for CIT(A) to presume selling price at 22 per sq.ft-Tribunal committed no error in allowing appeal of assessee-Revenue's appeal dismissed. 3.2 The Honble Supreme Court in the case of CIT vs. Shivakami co. (P) Ltd. 159 ITR 0071(SC) held that Capital gains-Applicability of first proviso to s. 12B of 1922 Act-Proviso to s. 12B not attracted unless there is evidence that more consideration than what was stated in the document of transfer was received-Onus in this regard is on Revenue-Emphasis in those provisions is on consideration declared or disclosed by the assessee as distinguished from the consideration actually received by the assessee-Capital gains is intended to tax the gains of the assessee and not what the assessee might have gained-Shares sold by the assessee to related parties at lower value allegedly for safeguarding the shares from being taken over by Government in settlement of tax dues-No evi....
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....e deed. Now the onus was lies upon the revenue to disprove the same. 3.6 In CIT V/S Chandni Bhuchar 34 DTR 137(P&H)- It has been held that valuation done by the any State Agency for The purpose of the stamp duty would not ipso fact substitute the actual sale consideration as being passed on the seller by the purchaser in the absence of any admissible evidence value taken by the stamp duty authority could not be taken as actual sale consideration and value shown in the sale deed had to be accepted. Also refer CIT v/s Smt. Raj Kumari Vimla Devi (2005) 279 ITR 360(All). CIT v/s Shweta Buchar 192 Taxman 67(P&H) Also refer Hussain Ali Bohara in ITA No. 564 & 578/JDH/2011 dt. 3.7 In CIT v/s Dolphin Builders (P) Ltd 90 DTR 75(MP)-Understatement of sale consideration of flates- When there was no evidence that the excess amount, if any was collected by G- Builders or even if it was collected then it was passed on the assessee. No addition could be made in the hands of the assessee. Recently followed by the Honble ITAT in the case of Sh. Jagdish Chandra Boriwal in ITA No. 216/JD/2017 dt. 01.08.2017. However the ld. CIT(A) has not stated a single word on th....
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....ration as contained in s. 50C. The natural meaning of full value of consideration refers to consideration specified in the sale deed. Hence, for the meaning of full value of consideration as mentioned in different provisions of the Act except in s. 48, one will have to consider the full value of consideration as specified in sale deed.-CIT vs. Smt. Nilofer I. Singh (2009) 221 CTR (Del) 277 : (2008) 14 DTR (Del) 108 : (2009) 309 ITR 233 (Del) relied on. In Explanation to s. 54F(1), it is mentioned that net consideration means the full value of consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection with such transfer. The meaning of full value of consideration in Explanation to s. 54F(1) will not be governed by meaning of words 'full value of consideration' as mentioned in s. 50C. The value adopted for stamp duty is to be considered as full value of consideration for the purpose of computing the capital gains under s. 48. Sec. 54F(1) says that capital gains is to be dealt with in accordance with the provisions of sub-cls. (a) and (b) of s. 54F(1). In the instant case, the....
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....sideration has been invested in the capital gains accounts scheme for purchase of the new house property which is again not been disputed by the Revenue. The consideration as determined under section 50C based on the stamp duty authority valuation is not a consideration which has been received by or has accrued to the assessee. Rather, it is a value which has been deemed as full value of consideration for the limited purposes of determining the income chargeable as capital gains under section 48 of the Act. Therefore, in the instant case, the provisions of section 54F(1)(a) are complied with by the assessee and the assessee shall be eligible for deduction in respect of the whole of the capital gains so computed under section 45 read with section 48 and section 50C of the Act. The decisions of the Coordinate Benches as referred supra support the case of the assessee. The subject issue was not for consideration before the Hon'ble Karnataka High Court and hence, the same doesn't support the case of the revenue. We are therefore of the considered view that the provision of section 50C(1) of the Act are not applicable to section 54F for the purpose of determining the meaning of ....
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....ains for taxation u/s 45 of the Act. It is noticed that the CIT(A) confirmed the addition on a couple of reasons, namely (a) the provisions of section 54F(1) does not permit invoking of the provisions of section 50C of the Act. Therefore, 'net consideration'/full value consideration should be as per the sale deed figures and not as per the deemed full value consideration figures; and (b) the assessee is new asset includes only the Ground plus 1st floor only and not in respect of two floors (sic). Further, CIT(A) has not discussed the provisions of the clause (a) and (b) of section 54F(1) of the Act in his order. Actually, the assessee's house consists of Ground plus 4 floors. He relied on SB decision in the case of Sushila M Jhavari, supra and restricted the investment in first floor only and denied exemption in respect of the investment in other floors. Elaborate discussion on why such restriction was not given. Probably, CIT(A) is of the opinion that the Ground plus 1st floor is one house and other floors refers to other residential house. The said SB decision never disapproved the allowability of the investment of capital gains in a residential house, which may include ....
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.... consideration' is to be applied only for s. 48-Since entire amount of sale consideration has been invested in bonds, therefore, provisions of s. 50C are not applicable-Further as assessee invested entire sale consideration of Rs. 40 lakhs in the bonds eligible for s. 54EC, he is entitled for deduction under s. 54F Hence the deduction should be allowed. 5. Investment after due date u/s 139(1) but before but date u/s 139(4): Further the investment after due date of filling the return of income in this regard it is also submitted that the due date is not to be consider only 139(1) but also the u/s 139(4). And it is also very settled legal position of law that the investment in new assts can be done till the date of return filling u/s 139(4). (i) The Honble Jurisdictional High Court in the case of the case of Pr. CIT vs. Shankar Lal Sharma D.B. Income Tax Appeal No. 153/2017 19th December, 2017 (2017) 100 CCH 0311 RajHC (2018) 253 TAXMAN 0308 (Rajasthan) Where it has been held Deduction-Capital gains-Non deposition of net sale consideration- Rejection-Validity thereof-Assessee was picked up for scrutiny assessment and assessment was finalized u/s 143(3)-Asse....
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.... reiterated its view that once the entire capital gain was utilized by the assessee by purchasing a house property before the extended due date under section 139(4), the exemption under section 54 would be allowable to the assessee. In view of the facts and circumstances of the case when the assessee has invested the amountwithin the stipulated period as prescribed under section 54F and in view of the various decisions cited supra, we decide this issue in favour of the assessee and hold that the assessee is eligible for deduction under section 54F in respect of the investment made in the house purchased on 13th October, 2014." In the case of Sabita Devi Agrawal V/s ITO 69 ITR(Trib) 231 Kolkata 19.12.2048 it has been held that Capital Gains-Sale of original capital assets-During assessment proceeding, AO found that assessee had used borrowed funds for making investment in capital gains accounts scheme-No relief was granted by CIT(A)-Held, s. 54F nowhere envisaged that sale consideration obtained by assessee from sale of original capital asset was mandatorily required to be utilized for purposes of meeting cost of new asset-It held that investment made by assessee might be s....
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....d before sale of agricultural land-Similarly, another agricultural land was purchased after due date of filing return of income u/s 139(1)-AO was of a view that in terms of provisions of s. 54B(2), assessee was required to deposit capital gains in prescribed bank account before due date of filing return of income u/s 139(1)-However, assessee was failed to deposit capital gain in bank account as per requirements and therefore, AO disallowed claim of deduction u/s 54B-On appeal, CIT(A) allowed deduction u/s 54B in respect of land purchased before sale of original land, however, continued to deny deduction of long term capital gains u/s 54B towards purchase of agricultural land after due date of filing of return of income u/s 139(1)-Held, when an assessee furnishes return subsequent to due date of filing return u/s 139(1) but within extended time limit u/s 139(4), benefit of investment made up to date of furnishing of return of income prior to filing return u/s 139(4) could not be denied on such beneficial construction-Capital gains utilized towards purchase of new asset before furnishing of return of income before either u/s 139(1) or u/s 139(4) would be deemed to be sufficient compl....
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....ot escaped any income he has already calculated the LTCG and made investment u/s 54/54B, the AO has reopened the case on the basis of value adopted by the Stamp Collector for the purpose of stamp duty and not shown the transaction in the return which have not been filed. In which the value was adopted at Rs.1,01,78,240/ and 1,00,54,000/- on their own purpose as against actual sale consideration at Rs.43,50,000/- and 54,50,000/-. And for invoking the deeming provision of S. 50C the AO issued the notice u/s 147/148 and in this provision no escapement of income is involved and also no income has been accrued or arose. Hence if there is no escarpment then the notice issued u/s 148 is invalid. 2. Reason to believe and not reason to suspect: 2.1 It is submitted that even under the amended law by the finance act 1989 the condition precedent or words, which continues right since inception till date, are "reason to believe" and not "reason to suspect". The word "believe" has to be understood in contradistinction of suspicion or opinion. Belief indicates something concrete or reliable. Kindly refer Gangasharan & Sons Pvt. Ltd. 130 ITR 1 (SC), and ITO v. Lakhmani Mewal Das, ....
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....n to believe" exposing Assessee for reopening of assessment. Notice for reopening of assessment was not in consonance and in conformity with under Section 147 and made specified notice vulnerable. High Court pointed that, reasons given by AO for issuance of notice for Re-assessment were not plausible and convincing. In fact order, where objections were rejected by AO, was not self-contained speaking order. Upon perusal of the order, it was amply clear that the same contains conclusions and is bereft of reasons.(para 12) Notices issued to Assessee by AO under Section 147/148 were not satisfying the pre-requisites for same. There was no whisper in the notice, or iota of proof that while issuing same. AO had reason to believe that any income chargeable to tax had escaped assessment for the assessment year. Notice issued by AO simply for his own verification and to clear his doubts and suspicions to re-examine the material which were already available on record at time of passing of t earlier assessment orders. The legislature under Section 147 has not clothed AO with such jurisdiction therefore the action could not be upheld in the background of facts of instant case. One mor....
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....t. In any case this report could not be the basis for information of belief of the AO regarding escapement of income. There has to be nexus between formation of belief and escapement of income. In the present case, only valuation done by the stamp valuation authority and the Inspector's report have been taken as basis for formation of belief. There has to be reason for formation of belief and the reason should be such, from which prima facie it could be inferred that there is escapement of income. Every reason, if remotely connected with the issue, cannot be said to be a sufficient reason for formation of belief regarding escapement of income. There has to be live nexus between the reason and formation of belief regarding escapement of income. Merely because the stamp valuation authority has adopted certain valuation for payment of stamp duty, the same cannot be a basis to conclude regarding escapement of income in the hands of purchase, particularly when no tangible material has been brought on record to suggest the escapement of income except the Inspector's report which cannot be relied upon.-CIT vs. D.N. Pachori (2010) 189 Taxman 420 (MP) relied on. Recently the Honble....
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.... any escapement thereof. It was only suspicion on the part of AO. The above judicial guideline, do not support his case Hence the notice u/s 148 may kindly be quashed and oblige. 6. Further only on the basis of information or AIR information no proceedings can be initiated. In the case of Smt. Usha Agrawal v/s ITO in ITA No. 260/Agra/2018 dt.11.09.2018 it has been held that " theAO based the reopening merely on the bare information received by him from the CBDT that the assessee had filed a declaration under the VDIS 1997, in which, he (sic-she) had declared an amount of Rs.10,02,948/- on 31.12.1997, but had not paid the tax thereon and the Certificate was not issued to him (sic-her). It was this bald so called information, which was reproduced by the AO in the reasons recorded and he, without any further inquiry thereon, i.e., without any independent application of his own mind to it, formed his alleged reason to believe escapement of income. The reopening is, thus liable to be set aside and reversed on this score alone. We hold so. The reopening of the assessee's completed assessment is cancelled on this count itself. And in the present case at the time of reaso....
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....0/-& stamp duty -50,000/5,25,000x632/480 = 6,91,250 18,22,250/- The AO at page 3 of the assessment order noted that on 3-11-2017 the assessee submitted her submission which is not tenable/ acceptable because the assessee is covered u/s 50C of the Act. Therefore, the value of the property estimated by the Sub-Registrar, Palsana (Sikar) will be treated the cost of the property in place of face value declared in the sale deed. The AO has also declined the claim of the assessee that the said property is agriculture land and not a capital asset on which the AO has also got the report of Tehsildar (Land Revenue), Sikar, Shrimadhopur dated 3-10-2017 who informed that the said land is situated under the Municipal Limit of Ringus (Sikar) and during the hearing before us the ld. AR has not stated or submitted anything in this regard. It is also pertinent to mention that the AO has also denied the claim of the assessee of deduction u/s 54B of the Act against the agriculture land situated at Village-Chirada, Patwar Halka-Khorashyamdas, Tehsil- Amer (Jaipur) was purchased by her alongwith other three partners from Shri Sita Ram S/o Shri Bhura, Caste-Gurjar, R/o Village-Chirada, Tehsil-Ame....
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....ntre capital gains by purchase of house property within stipulated period of section 54(2) i.e. before extended due date for return under section 139, assessee technically might have defaulted in not filing return u/s 139(4) But, however, utilized capital gains for purchase of property before extended due date u/s 139(4)-Deposit in scheme should have been made before initial due date and not extended due date was untenable contention-Reading of aforesaid sub-section would show that it person had not furnished return of previous year within time allowed under subsection (1) i.e. before 31st day of July of Assessment Year, assessee could file return before expiry of one year from end of ever relevant Assessment Year-Considering said case, instant court had considered provisions and interpreted same-In that view of matter, issue was required to be answered in favour of assessee and against department-Assessee's appeal allowed. Further the Co-ordinate Bench in the case of Jag Mohan Sharma (Deceased) Legal Heir Nitesh Sharma v/s ITO Ward 1(1), Jaipur in ITA No. 1089/Jp/2016 dt. 13.03.2018. Held as under 5. As regards the non deposit of the amount in the Capital Gain Account....
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.... (a) Gyan Chand Batra V/S ITO 133 TTJ 482(JP) wherein it has been held that "From sub-s. (1) of s. 50C, it is clear that in case the consideration received is less than the value adopted by stamp valuation authority then the value so adopted is to be taken as full value of the consideration for the purposes of s 48. Sec. 50C provides a deeming provision for considering the full value of consideration as the value adopted for stamp duty. In modern statutes, the expression 'deem' is used a great deal and for many purposes. It is at times used to introduce artificial conceptions which are intended to go beyond legal principles or to give an artificial construction of a word for phrase. Thus the artificial meaning of full value of the consideration has been given in s. 50C for the purpose of s. 48. One is entitled to ascertain the purpose for creating a statutory fiction. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end, it would be proper and even necessary to assume all those facts on which alone fiction can operate. The legislature in its wisdom has referred to s. 48 i....
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....ng provision mentioned in s. 50C is for specific asset and for the purpose of s. 48. Hence the assessee is entitled for deduction under s. 54F.-CIT vs. Ace Builders (P) Ltd. (2005) 195 CTR (Bom) (2006) 281 ITR 210 (Bom) and CIT vs. Assam Petroleum Industries (P) Ltd. (2003) 185 CTR (Gau) 71: (2003) 262 ITR 587 (Gau) applied. (b) The above decision followed in case of ITO v/s Raj Kumar Parashar 192 TTJ 603(JP)(2018) In ITA No. 11/jp/ 2016 dt. 28.09.2017 where it has been held that Where the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45, What is therefore relevant is the investment of the net consideration in respect of the original asset which has been transferred and where the net consideration is fully invested in the new asset, the whole of the capital gains shall not be charged under section 45 of the Act. The net consideration for the purposes of section 54F has been defined as the full value of the consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connect....
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....le Rs 16.87.000 as per sec 50C and Rs 8 lakhs as per the sale deed. The said clause (a) refers to the provisions of section 45 of the Act. In the given facts of the instant case, no chargeable capital gains arises u/s 45 of the Act. Thus, in this case, with investment of Rs. 17.65.752/- in new asset, the cost of the new asset is not less than the net consideration (NC) in respect of the original asset. Of course, the 'net consideration has two variants depending on FVC adopted and in this case, the NCs are quantitatively lesser than the cost of the new asset leaving no chargeable capital gains u/s 45 of the Act. Therefore, the assessee is not chargeable to any capital gains considering the given facts of the case and also the said clause (a) of section 54F(1). The deeming fictional meaning of section 50C cannot be imported for the purpose of explaining the meaning of the 'net consideration' mentioned in Explanation u/s 54F(1) of the Act. In effect, for working out the exempt income also, the deeming fiction does not have any effect in the circumstances where the cost of the new asset is not less than the net consideration whether computed as per the section 48 ....
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.... assessee invested total full value consideration of Rs 16,87,000/ (as per the SRO) in the residential house, which is one house only as it has only one kitchen, and these FVC is less than the invested amounts of 17.65.752/-, during the specified period, the assessee is not chargeable to tax on the capital gains u/s 45 of the Act. Whether we compute the capital gains apply FVC as pr the sale deed or the deemed FVC as per the section 50c, the net consideration is less than the investment in one residential house. Therefore, considering the provisions of section 54F(1)(a) of the Act, the order of the CIT(A) is not proper in denying exemption i n in respect of the capital gains relatable to the deemed mentioned in section SOC of the raised by the assessee are assessee. value of the consideration Act. Accordingly, the grounds allowed and in favour of the (d) Prakash Karnawal v/s TO 49 50 587(Jp) where it has been held Capital gains-valuation Assessee sold property for Rs. 40 lakhs-AO took the value determined by DVO under s. 50C at Rs. 67.13 lakhs- AO reduced the indexed cost of Rs. 13.27 lakhs shown by the assessee and computed the long-term capital gain at Rs. 53.86 lakhs-As....