AI Drafter 
TaxTMI 
TaxTMI 
2023 (7) TMI 495
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....50C at Rs. 12,84,450/- without referring the matter to DVO u/s 50C(2) of the Act. 3. The ld. CIT(A) has erred on facts and in law in confirming the action of AO in allowing deduction u/s 54F with reference to the deemed consideration instead of actual consideration.'' The Bench has taken into consideration the revised ground filed by the assessee (supra) which shall be adjudicated on merit hereunder. 2.1 Apropos Ground No. 1 to 3 of the assessee, brief facts of the case are that the as per AIR details, the assessee had sold immovable property for the total consideration of Rs. 14.00 lacs which had been valued at Rs. 25,68,900/- for the purpose of charging stamp duty and on verification of record, it had been found that the assessee had not filed the return of income for the year under consideration. Thus according to the AO, the assessee had failed to disclose fully and truly all material facts necessary for his assessment and accordingly in view of the above facts and circumstances of the case the AO noted that there were sufficient reasons to believe that an amount of Rs. 25,68,900/- had escaped assessment within the meaning of Section 147 of the Act. Hence, notice....
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....d that he can produce his daughter-in-law to confirm this fact. However, the AO held that the registered sale deed clearly shows that the assessee has received sales consideration in cash from Smt. AshaTambi in presence of Sub- Registrar and the witnesses. If the sale deed is wrongly executed the assessee is required to rectify the same at that time. The submission of the assessee is an afterthought and hence is not acceptable. The Sub-registrar has valued this part of plot at Rs. 6,91,825/-. Accordingly, the AO computed the long term capital gain at Rs. 5,38,669/- as under:- Total sales consideration u/s 50C (5,92,625+6,91,825) Rs. 12,84,450/- Less:- Indexed cost of acquisition Rs. 5,02,163/- (1500*213.26=319890/351*551) Rs. 7,82,287/- Less:- Deduction u/s 54F Rs. 2,43,618/- (4,00,000*7,82,287/12,84,450) Long Term Capital Gain Rs. 5,38,669/- 2.2 Before the ld. CIT(A), the assessee apart from the contentions raised before AO further submitted that the AO has wrongly calculated the deduction u/s 54F by taking frictional value of sale consideration at Rs. 12,84,450/- rather than actual sale consideration of Rs. 7.00 la....
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....sessee, who is admittedly Power of Attorney holder of Shri Sultan Meena. There is no dispute with regard to the fact that Shri Sultan Meena is recorded owner in the land in question. There is also no dispute with regard to the fact that there is no evidence on record suggesting that the Power of Attorney to Shri Sultan Meena was executed by the assessee by paying consideration of the land. The Authorities below doubted about the transaction on the basis that the assessee failed to produce Shri Sultan Meena to prove that the sale consideration so received was handed over to the said Shri Sultan Meena and also in the absence of any receipt by the owner of the land, stating that the assessee acted merely an agent. Admittedly, the revenue has not brought out any material suggesting that the assessee received this consideration as the owner of the land. As per the sale deed enclosed at page 46 of the Paper Book, it is stated that the owner of the land wished to sale the land for personal and family needs. It is recorded in the sale deed that the attorney holder received a sum of Rs. 269,37,000/- as a Power of Attorney of the owner of the land. This fact remained undisputed. Even if it i....
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.... Singh and Shri Vijay Pal Singh as the same is stated to have been denied categorically by them, but appellant's case is that the said payment stood made to Smt. Manju Yadav as is evidenced by the sale deed executed by the appellant. For such a controversy, the remedy lies somewhere else. The Sub-Registrar, in this case has adopted value of this property at Rs. 42 lacs for stamp duty purposes, which has been treated as sale consideration by the Assessing Officer. 13. Perusal of the sale deed dated 19/12/2007 at page 50 of the assessee's paper book, it is revealed that said ShriSurajNarain did not execute the sale deed as an owner of the aforesaid land measuring 0.30 hect.. He executed sale deed in his capacity as a power of attorney holder only wherein he had only a delegated right. This right was not independent right of the appellant. There is also no reliable material or documentary evidence on record to show that the said ShriSurajNarain, the appellant before us had purchased the aforesaid land from any of its earlier owners before transferring the same in the name of Smt. Radha Devi Khatoria through sale deed dated 19/12/2007 as a power of attorney holder. It is a dif....
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.... has effect of transferring or enabling the enjoyment of any immovable property would get character of transfer. In instant case there was no transfer to or enabling enjoyment of property in favour of assessee in any manner and therefore, sub-clause (vi) of Section 2(47) does not get attracted. Clause 21 of power of attorney showed that no consideration was received from power agent for appointing him as power of attorney. Property right has also not been handed over to power agent. Letter of land owner subsequently issued does not come to the aid of the Department. It was duty of the power of attorney holder to deliver amount received for the purpose of transfer of property. Circular No.495 dated 22.9.1987 also states that legal ownership would continue with the transferor but the property rights if it is transferred by way of power of attorney would come within ambit of sub-clause (vi) of Section 2(47). Terms of power of attorney clearly show that property rights has not been transferred to power of attorney holder and there is also no provision for enabling enjoyment. Power of attorney is valid and same has been accepted by revenue. Thus, capital gains cannot be assessed in hand....
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....at Rs. 4598.27 sq. yd. whereas the rate of plot gifted to AshaTambi works out at Rs. 8198.92 sq. yd. This shows that value taken by the stamp authorities of both the plots has wide variation.In these circumstances, assessing the gain by taking the FMV of the property u/s 50C at Rs. 12,84,450/- without referring it to the DVO u/s 50C(ii), even though the assessee has not specifically objected to the same is not as per law. In this connection reliance is placed on the decision of Hon'ble Calcutta High Court in case of Sunil Kumar Agarwal Vs. CIT (2014) 372 ITR 83 where it was held as under:- "The case of the assessee was that price offered by the buyer was the highest prevailing price in the market. If this is his case then it is difficult to accept the proposition that the assessee had accepted that the price fixed by the District Sub-Registrar was the fair market value of the property. No such inference can be made as against the assessee because he had nothing to do in the matter. Stamp duty was payable by the purchaser. It was for the purchaser to either accept it or dispute it. The assessee could not on the basis of the price fixed by the Sub-Registrar have claimed anyt....
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....ceived 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. Deemed value of consideration provided u/s 50C is neither consideration received nor accrued. It is only for the purpose of section 48 as provided in section 50C(1). Therefore, deduction u/s 54F is to be calculated with reference to actual sales consideration of Rs. 7 lacs and not deemed consideration of Rs. 12,84,450/-. For this purpose reliance is placed on the following case laws:- Mrs. BaskarababuUshaVs. ITO (2022) 193 ITD 573 (Chennai) (Trib.) Deeming fiction provided for computing full value of consideration as a result of transfer of property as per provisions of section 50C is only applicable for determining full value of consideration as defined u/s 48 and thus, for purpose of computing exemption u/s 54F, deeming fiction provided u/s 50C could not be enlarged. ITO Vs. Raj Kumar Parashar (2017) 167 ITD 237/ 164 DTR 174 (Jaipur) (Trib.) If the assessee has invested the entire sale consideration in new house property, the capital gains are exempt u/s 54F. The considerati....