Nawal Kishore Kandelwal, New Delhi v. ACIT, New Delhi

ITA 4928/DEL/2016 | 2012-2013
Pronouncement Date: 15-11-2019 | Result: Allowed

Appeal Details

RSA Number 492820114 RSA 2016
Assessee PAN AAAPK3353Q
Bench Delhi
Appeal Number ITA 4928/DEL/2016
Duration Of Justice 3 year(s) 2 month(s)
Appellant Nawal Kishore Kandelwal, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 15-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 15-11-2019
Assessment Year 2012-2013
Appeal Filed On 15-09-2016
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE : SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI O.P. KANT ACCOUNTANT MEMBER ITA NO. 4928/DEL/2016 ASSESSMENT YEAR: 2012-13 NAWAL KISHORE KHANDELWAL C/O RAJ KUMAR & ASSOCIATES CAS L-7A(LGF) SOUTH EXT. PART-2 NEW DELHI. PAN- AAAPK3353Q (APPELLANT) VS. ACIT CIRCLE 47(1) NEW DELHI. (RESPONDENT) APPELLANT BY SH. RAJ KUMAR C.A. & SH. SUMIT GOEL C.A. RESPONDENT BY SH. F.R. MEENA SR. DR ORDER PER O.P. KANT A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORD ER DATED 08/08/2016 PASSED BY THE LD. COMMISSIONER OF INCOME-TAX(APPEAL S)-16 NEW DELHI [IN SHORT THE LD. THE CIT(A)] FOR ASSESSMENT YEAR 2012- 13 RAISING FOLLOWING GROUNDS: 1. THAT UNDER THE FACTS AND CIRCUMSTANCES BOTH THE LOWER AUTHORITIES ERRED IN LAW AS WELL AS ON FACTS IN ADOPTING DEEMED SALE VALUE OF KAROL BAGH PROPERTY U/S. 50C AT RS. 1 84 45 416/- AS PER CIRCLE RATE APPLICABLE AS ON 30.11.2011 AGAINST CORRECTLY CLAIMED AT RS. 1 10 00 000/- U/S. 50C AS PER THE CIRCLE RATES APPLICABLE AS ON 05.08.2011 (W HICH IS ALSO THE ACTUAL DATE OF HEARING 04.11.2019 DATE OF PRONOUNCEMENT 15.11.2019 ITA NO. 4928/DEL/2016 2 AND APPARENT SALE CONSIDERATION) THUS ERRED IN MA KING AN ADDITION OF RS.74 45 416/- AS SHORT TERM CAPITAL GAIN (STCG). 2. THAT WITHOUT PREJUDICE THE DECLARED SALE VALUE A T RS.1 10 00 000/- COULD NOT HAD BEEN DISTURBED WITHOUT REFERRING TO V ALUATION OFFICER AS PROVIDED U/S. 50C(2) R/W. SEC. 50C (3) HENCE THE DEEMED SALE VALUE ADOPTED AT RS. 1 84 45 416/- IS UN - SUSTAINABLE IN LAW. 3. THAT WITHOUT PREJUDICE IN THE ABSENCE OF ANY COG ENT MATERIAL ON RECORD FOR JUSTIFYING THE FMV AT RS. 1 84 45 416/- THE DECLARED AND APPARENT SALE CONSIDERATION OF RS. 1 10 00 000/- CO ULD NOT HAD BEEN DISTURBED. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE SOLD A PROPERTY BY WAY OF REGISTERED SALE DEED DATED 30/11/2011 AND SH OWN SHORT TERM CAPITAL GAIN AMOUNTING TO RS.43 37 964/-IN THE RETURN OF IN COME FILED ON 20/07/2012 WHICH WAS PART OF THE TOTAL INCOME OF RS.60 47 487/ - DECLARED BY THE ASSESSEE. THE CASE OF THE ASSESSEE WAS SELECTED FOR A SCRUTIN Y ASSESSMENT. DURING THE SCRUTINY ASSESSMENT THE ASSESSING OFFICER FOUND TH AT ASSESSEE HAD TAKEN SALE CONSIDERATION OF RS.1 10 00 000/-FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN AS AGAINST THE VALUE OF RS.1 84 45 416/-TAKEN BY THE STAMP DUTY AUTHORITIES FOR REGISTRATION OF THE SALE DEED. ACCO RDING TO THE ASSESSING OFFICER IN VIEW OF PROVISIONS OF SECTION 50C OF THE ACT TH E ASSESSEE WAS REQUIRED TO COMPUTE SHORT TERM CAPITAL GAIN ON VALUATION OF THE PROPERTY BY STAMP VALUE AUTHORITIES. ACCORDINGLY HE MADE ADDITION RS.74 45 416/-FOR THE DIFFERENCE OF VALUE OF RS.1 84 45 416/-CONSIDERED BY THE STAMP VA LUATION AUTHORITIES AND THE ITA NO. 4928/DEL/2016 3 SALE CONSIDERATION OF RS.1 10 00 000/-DECLARED BY T HE ASSESSEE. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) AND FILED DETAIL ED SUBMISSIONS. THE LD. CIT(A) SUMMARISES SUBMISSION OF THE ASSESSEE AS UND ER: A) THAT THE DEED WAS MADE WITH THE BROKER AMAN GHA I ON 30.07.2011. THE APPELLANT HAS NOT BEEN ABLE TO PROVIDE ANY EVIDENCE OF ANY SUCH DEAL AND THE INVOLVEMENT OF SH. AMAN GHAI. NORMALLY WHEN THE DEA LS ARE MADE THROUGH BROKER AN AGREEMENT TO SELL IS EXECUTED ALONGWITH T HE PAYMENT OF TOKEN MONEY (BAYANA). B) THE CONSIDERATION OF RS.1 10 00 000/- ON 02.08. 2011 POSSESSION NOC. C) POSSESSION IS CLAIMED TO HAVE BEEN HANDED OVER O N 05.08.2011. HOWEVER THE ASSESSING OFFICER IN HIS ORDER HAS QUOTED FROM THE SALE DEED ON PAGE 9 POINT NO. 3 AS UNDER: THE VENDORS HAS HANDED OVER THE PHYSICAL VACANT PO SSESSION OF THE SAID PROPERTY TO THE VENDEE ON THE EXECUTION OF THE SALE DEED ON 19.11.2011 (DATE OF EXECUTION OF THIS DEED ON 30/11/2011. THIS CLEARLY SHOWS THAT THE POSSESSION WAS GIVEN TO THE ASSESSEE ON 30/11/2011 I.E. AFTER THE NEW CIRCLE RATE CAME TO THE EFFECT. THEREFORE THE PLEA OF THE LD. AR THAT THE POSSESSI ON WAS MADE OVER ON 05.08.2011 IS REJECTED. D) THE DEAL WAS CLOSED ON 05/08/2011. IN THE LIGHT OF DISCUSSION IN POINT NO. (C) THIS CONTENTION IS ALSO REJECTED. (E) STAMP PAPER FOR RS.6 60 000/- @6% OF RS.1.10 CR ORE WERE PURCHASED ON 02/11/2011 WHEREAS THE CIRCLE RATE WAS REVISED ON 1 5/11/2011. 3. THUS BEFORE THE LD. CIT(A) NO COPY OF ANY SALE AGREEMENT PRIOR TO THE REGISTERED SALE DEED WAS SUBMITTED. THE OTHER CONTE NTIONS OF DATE OF PURCHASE OF STAMP PAPERS PRIOR TO DATE OF REGISTERED SALE D EED AND SICKNESS OF THE ASSESSEE AS A REASON FOR NOT GETTING THE PROPERTY R EGISTERED AT THE TIME OF RECEIPT OF PAYMENT WERE REJECTED BY THE LEARNED CI T(A). THE LEARNED CIT(A) ITA NO. 4928/DEL/2016 4 HELD THAT THE ASSESSEE FAILED TO ESTABLISH EXISTENC E OF ANY CONTRACTUAL OBLIGATION TO SELL THE PROPERTY AT THE AGREED PRICE OF RS.1 10 00 000/-. IN VIEW OF THE OBSERVATIONS HE UPHELD THE ADDITION MADE BY THE AS SESSING OFFICER. 4. BEFORE US LD. COUNSEL OF THE ASSESSEE FILED TWO PAPER BOOKS (APB) BOTH HAVING PAGES 1-40. IN THE APB-II THE ASSESSEE FILE D COPY OF AN AGREEMENT DATED 28/07/2011. ACCORDING TO THE AGREEMENT THIS PROPER TY WAS SOLD ON 28/07/2011 BY THE ASSESSEE AGAINST FULL AND FINAL P AYMENT OF RS.1 10 00 000/- TO BE PAID. THE ASSESSEE REFERRED TO PAGE 19 OF APB -I WHICH IS A COPY OF BANK STATEMENT OF THE ASSESSEE. ACCORDING TO BANK STATEM ENT PAYMENT OF RS.1 10 00 000/-HAS BEEN RECEIVED ON 2/08/2011 BY W AY OF CLEARING OF CHEQUE NO. 751845. THE LD. COUNSEL ALSO REFERRED TO PAGE 2 4 OF APB-I WHICH IS A COPY OF POSSESSION LETTER ISSUED BY THE ASSESSEE TO PURC HASER ACCORDING TO WHICH POSSESSION WAS DELIVERED TO THE PURCHASER ON 05/08/ 2011. IN VIEW OF THE ABOVE FACTS THE LD. COUNSEL OF THE ASSESSEE REFERR ED TO FIRST PROVISO TO SECTION 50C OF THE ACT ACCORDING TO WHICH WHERE THE DATE OF AGREEMENT FIXING THE AMOUNT OF CONSIDERATION AND THE DATE OF REGISTRATIO N FOR THE TRANSFER OF THE CAPITAL ASSET ARE NOT THE SAME THE VALUE SO ADOPTE D OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITIES ON THE DATE OF T HE AGREEMENT MAY BE TAKEN FOR THE PURPOSE OF THE COMPUTING FULL VALUE OF CONS IDERATION FOR SUCH TRANSFER. ITA NO. 4928/DEL/2016 5 THE LD. COUNSEL SUBMITTED THAT THOUGH THE SAID PROV ISO HAS BEEN INSERTED BY THE FINANCE ACT 2016 W.E.F. 01/04/2017 THE TRIBU NAL IN FOLLOWING DECISIONS HAS CONSTRUED THE PROVISO AS CLARIFICATORY IN NATUR E AND CAN BE APPLIED ON PENDING MATTERS. (I). AMIT BANSAL VS. ACIT 174 ITD 349 (DELHI TRIBU NAL) (II). RAHUL G. PATEL VS. DCIT 173 ITD 1 (AHD. TRIBU NAL) (III). DHARAMSHIBHAI SONANI VS. ACIT 161 ITD 627 ( AHD. TRIB) (IV). SMT. CHALASANI NAGA RATNA KMARI VS. ITO 79 T AXMANN.COM 104 (VISHAKHAPATNAM-TRIB) (V). ITO VS. AASTHA GOEL 67 ITR TRIB. (S.N.) 49 (DE LHI-TRIB) 5. THE LD DR ON HAND SUBMITTED THAT NO AGREEMENT FOR THE SALE OF THE PROPERTY PRIOR TO DATE OF THE REGISTRATION WAS FILE D BEFORE THE LEARNED CIT(A). THIS AGREEMENT IS BEING FILED FIRST-TIME BEFORE THE TRIBUNAL WHICH BEING IN THE NATURE OF AN ADDITIONAL EVIDENCE THE ASSESSING OFF ICER NEED TO BE GIVEN THE OPPORTUNITY TO COMMENT ON THE AUTHENTICITY OR GENUI NENESS OF THE AGREEMENT. 6. WE HAVE HEARD RIVAL SUBMISSIONS OF THE PARTIES A ND PERUSED THE RELEVANT MATERIAL ON RECORD INCLUDING THE PAPER BOOKS FILED BY THE ASSESSEE. IN TERMS OF SECTION 50C OF THE ACT IN CASES WHERE THE CONSIDER ATION RECEIVED ON TRANSFER OF THE CAPITAL ASSET BEING LAND OR BUILDING IS LESS T HAN THE VALUE ADOPTED ASSESSED OR ASSESSABLE BY STAMP VALUATION AUTHORITY FOR THE PURPOSE OF THE PAYMENT OF A STAMP DUTY IN RESPECT OF SUCH TRANSFER THEN THE VA LUE SO ADOPTED ASSESSED OR ITA NO. 4928/DEL/2016 6 ASSESSABLE SHALL FOR THE PURPOSE OF COMPUTING CAPIT AL GAIN BE DEEMED AS FULL VALUE OF CONSIDERATION RECEIVED AS A RESULT OF TRAN SFER. IN THE CASE OF THE ASSESSEE STAMP VALUATION AUTHORITIES VALUED THE PRO PERTY FOR THE PURPOSE OF A STAMP DUTY AT RS.1 84 50 000/- THEREFORE INVOKING THE SECTION 50C THE ASSESSING OFFICER TOOK THE AMOUNT OF FULL VALUE CON SIDERATION AT RS.1 84 50 000/-AS AGAINST VALUE OF RS.1 10 00 000/ - DECLARED BY THE ASSESSEE AS ACTUAL SALE CONSIDERATION. IT IS ALSO EVIDENT TH AT BEFORE THE LEARNED CIT(A) ASSESSEE HAS NOT MADE ANY CLAIM OF EXISTENCE OF ANY SUCH AGREEMENT DATED 28/07/2011 A COPY OF WHICH HAS BEEN PRODUCED BEFOR E US FOR THE FIRST TIME. TAKING BENEFIT OF THE EXISTENCE OF THE AGREEMENT T HE ASSESSEE HAS SOUGHT TO INVOKE PROVISO TO SECTION 50C WHICH READS AS UNDER : PROVIDED THAT WHERE THE DATE OF THE AGREEMENT FIXING THE AM OUNT OF CONSIDERATION AND THE DATE OF REGISTRATION FOR THE TRANSFER OF TH E CAPITAL ASSET ARE NOT THE SAME THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAM P VALUATION AUTHORITY ON THE DATE OF AGREEMENT MAY BE TAKEN FOR THE PURPOSES OF COMPU TING FULL VALUE OF CONSIDERATION FOR SUCH TRANSFER. 7. AS THE COPY OF AGREEMENT HAS BEEN PRODUCED BEFOR E US FOR THE FIRST TIME IN THE INTEREST OF SUBSTANTIAL JUSTICE WE ADMIT TH E SAME AS ADDITIONAL EVIDENCE AND RESTORE THE MATTER TO THE LEARNED ASSESSING OFF ICER AFRESH FOR DECIDING APPLICABILITY OF THE PROVISO TO SECTION 50C OF THE ACT IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO PRODUCE ORIGINAL COPY O F THE AGREEMENT BEFORE THE ASSESSING OFFICER WHO MAY CARRY OUT INQUIRIES AS DE EMED FIT FOR VERIFYING ITA NO. 4928/DEL/2016 7 GENUINENESS OR AUTHENTICITY OF THE AGREEMENT. THE A SSESSING OFFICER MAY IF REQUIRED VERIFY THE DATE OF PURCHASE OF STAMP USED FOR THE AGREEMENT PURCHASE DATE FROM THE REGISTER OF THE STAMP VENDOR OR ATTES TATION OF THE AGREEMENT FROM THE REGISTER OF NOTARY PUBLIC WHO HAS ATTESTE D THE AGREEMENT OR MAY EXAMINE THE PURCHASER OF THE PROPERTY AND WITNESS(E S) WHO HAS SIGNED ON THE COPY OF THE AGREEMENT. IT WILL BE THE RESPONSIBILIT Y OF THE ASSESSEE TO PRODUCE ALL THE NECESSARY DOCUMENT OR WITNESSES FOR CARRYIN G OUT NECESSARY INQUIRIES FOR VERIFICATION OF THE GENUINENESS OR AUTHENTICITY OF THE AGREEMENT. UPON VERIFICATION IF THE ASSESSING OFFICER FINDS THAT T HE AGREEMENT IS A GENUINE ONE HE MAY DECIDE APPLICABILITY OF FIRST PROVISO TO SEC TION 50C OF THE IN ACCORDANCE WITH LAW. IT IS NEEDLESS TO MENTION THAT THE ASSESS EE SHALL BE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD. THE ASSESSING OFFICER S HALL PASS A SPEAKING ORDER INCORPORATING RESULT OF INQUIRIES IF ANY CONDUCTED BY HIM. THE GROUND OF THE APPEAL OF THE ASSESSEE IS ACCORDINGLY ALLOWED FOR S TATISTICAL PURPOSES. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR THE STATISTICAL PROPERTIES. ORDER PRONOUNCED IN THE OPEN COURT ON 15/11/2019. SD/- SD/- (BHAVNESH SAINI) (O.P. KANT) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15 TH NOV. 2019 *AKS*