AI Drafter 
TaxTMI 
TaxTMI 
2023 (2) TMI 1064
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....well as without considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned additions. The CIT(A) has grievously erred in law and on facts in confirming the impugned addition for the reasons not raised by AO so that it was exceeding his jurisdiction and illegal. 2.1 The Ld. CIT(A) has grievously erred in law and on facts in confirming addition of Rs.65,39,434/- as long term capital gains made by AO. The findings given by CIT(A) for upholding the impugned addition of Rs.65,39,434/-were presumption, surmises and contrary to law as well as evidence on record. 2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld addition of Rs.65,39,434/- as long term capital gains made by AO. 2.3 The Ld. CIT(A) has grievously erred in law and on facts in rejecting the contention of the appellant that he had l/12th and not l/9th share in the land sold. The computation furnished to CIT(A) was not he admission on his part with regards his share or SDV of the land sold but the alternative contention, without prejudice to the main contention. 3.1 The appell....
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....tments to the calculation of the assessee: i) He substituted the actual sale consideration with the stamp duty value of the property as on the date of sale of Rs.10,05,21,500/- as per section 50C of the Act; the assessee's share in the property was taken at 1/9th; ii) Indexed cost of acquisition of the property pertaining to assesses share was taken by the AO at Rs.7,44,733/- as against Rs.13,47,416/- claimed by the assessee. The AO had restricted indexed cost of acquisition to the extent of the property noted to be sold of 8,741 sq.meters as per the registered sale deed. The assessee, on the other hand, had claimed indexed cost of acquisition of property of 14,569 sq.meters claiming that, to the extent of 5528 sq.meters, the property had been acquired by the Government for weaker sections, and therefore, only the balance of 8,741 sq.meters was sold to the third party during the year. iii) The claim of exemption under section 54F of Rs.21 lakhs was denied to the assessee. The comparison of the capital gain returned by the assessee, and that computed by the AO as tabulated at page no.5 of the assessment order is as under: Particulars As per ....
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....s contentions that the assessee's share in the property sold was 1/12th and not 1/9th as taken by the AO, he pointed out that this fact had been pointed out to the AO during the remand proceedings by the ld.CIT(A) vide letter dated 17.2.2016 and 2.2.2016, which was placed before at PB Nos.79 and 62 respectively. The ld.counsel for the assessee pointed out that the AO had been pointed out the share of nine co-owners in the letter dated 2.12.2016 as under: Sr. No. Name of the seller PAN Share in Property 1. JadibenBhulabhaiVenidas CPYPP6625P 1/3rd 2. NirubenParshottamdas ACSPP9068P 1/12th 3. Pratimaben Alias Pratibhaben 'Parshottamdas AGAPP0480B 1/12th 4. NitinbhaiParshottamdas ABJPP8038P 1/12th 5. KiranbhaiParshottamdas AEIPP0638K 1/12th 6. PopatbhaiDhanjibhai AHEPP9746K 1/12th 7. JagdishbhaiDhanjibhai APCPP3224Q 1/12th 8. UshabenRajendrabhai BJEPP1175M 1/12th 9. AlkabenBhaskarbhai AVAPP9963A 1/12th 7. He contended that 1/12th share arose to the assessee on account of the fact that his mother was owner of 1/3rd share in the property, which had devolved onto ....
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....llant has filed certain details including some evidences in support of his claim. However, the appellant has not filed any application under rule 46A for filing additional evidences regarding this claim. Even the additional evidences filed by the appellant during the course of appeal proceedings have been accepted, but there is no evidence or claim of the appellant regarding the share in the property. The appellant has not bothered to file the evidences as additional evidences, even though the appellant's additional evidences on other issues were duly accepted and sent to the A.O for his comments. The proceedings before the CIT(A) are not based on trial and error wherein the appellant keeps filing the evidences which were not produced before the A.O at all and for which the application under Rule 46A has not been made to the CIT(A). Therefore, the evidences filed by the appellant are not proper as the same has not been filed as per Rule, 46A of the I.T.Rules and accordingly rejected. No cognizance of these papers/evidences is being taken while deciding this appeal. It may also be mentioned here that no such ground of appeal has also been taken by the appellant either at the tim....
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....e the capital gain taking the assessee's share in the property as 1/12th. This contention raised by the ld.counsel for the assessee is accordingly allowed. 10. Now we take up the next contention that the stamp duty value/jantri value of the land sold on the date of entering into agreement to sell should have been adopted as per the provision of section 50C of the Act. We do not find any merit in the same. The ld.counsel for the assessee in support of his contention has drawn our attention to the copy of the agreement to sell/memorandum of understanding entered into by the assessee with Vishwas Developers dated 10.9.2015,a copy of which was placed before us in PB Page no.95 to 101 dated 5.20210 (English Translation). He also drew our attention to the contentions made before the ld.CIT(A) to prove that actual agreement to sell had been entered into with the said party after the MOU was entered by demonstrating the fact that after entering into agreement to sell, the purchaser had paid premium to the Government for conversion of land from agriculture to non-agriculture and all permission for conversion of the said land was also taken thereafter. He contended that all these events s....
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....of which conditions, the assessee be treated as entitled to substitute the sale consideration actually received with the stamp duty value as on the date of entering into agreement to sell as per the proviso to section 50C of the Act. The ld.DR however, relied on the order of the ld.CIT(A) at page no.8 to 10 as under, pointing out to us various infirmity in the agreement to sell casting doubt on the genuineness of the same. "The other argument of the appellant is regarding valuation as per Sec.50C of the I.T.Act. The appellant has filed a copy of the agreement for sale. However, on going through this agreement to sale, the following facts were noticed :- (1)This agreement has been shown to have entered into on 5/2/2010, however, on going through the whole agreement it is noticed that it is entered on a stamp paper dated 6/10/2009. This agreement is simply signed by all the parties without any date. However, in the last, the date has been mentioned as 5/2/2010 but there is a clear overwriting on the date with the pen which clearly shows that the date shown in the Agreement is not authentic. The appellant never produced the original Agreement to sale so that this fac....
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....hing but an afterthought which cannot be relied upon in view of the factors discussed above. In fact the A.O in the remand report has clearly held that the so-called agreement for sale dated 5/2/2010 is not an authentic document because it was neither registered with the Registrar nor an authorised document. This document was never produced before the A.O as a proof. Even on verification of the final sale deed, it can be seen that nowhere in the sale deed any mention about the alleged sale agreement made by the owners. Therefore, the agreement to sale filed by the appellant cannot be relied upon in view of the above mentioned factors. 12. We have heard rival contentions and we do not find any merit in the contentions of the ld.counsel for the assessee. The infirmity pointed out by the ld.CIT(A) vis-à-vis the agreement to sell have remained uncontroverted before us. The agreement to sell has been found to have stamped on 6.10.2009 while the agreement was entered into much later on 5.2.2010. There is also over-writing on the date mentioned in the agreement to sell. Most importantly, the original agreement to sell was never produced before the Revenue authorities. The fact t....
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....he Act, it is clear that the exemption in this section is allowable if the appellant purchases residential property before one year or after two years of the date of sale of the original asset. In this case there is no dispute that the appellant has sold the land on 28/5/2012, therefore, as per the provisions of the Act, the residential property should have been purchased by the appellant either on or after 28/5/2011 or on or before 28/5/2014. In this case it is an undisputed fact that the appellant has entered, into an agreement for purchase of the property on 31/7/2013. It has also been provided in this agreement that the flat would be completed within 14 months from the date of execution of the banakhat. As has clearly been held by the A.O in the assessment order, this fact has not been disputed by the appellant either before the A.O or before the undersigned. Therefore, the 14 months are taken in to account from the date of banakhat, it is clear that the flat would be available to the appellant only on 30/9/2014 which is beyond two years from the date of sale of the original assets. It has clearly been provided by the appellant during the course of appeal proceedings that the s....