Income Tax Appellate Tribunal - Jaipur
Sanganer Cooperative Housing Society ... vs Ito, Jaipur on 27 November, 2019
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,"A" JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA. No. 408/JP/2015
fu/kZkj.k o"kZ@Assessment Years : 2006-07
M/s Sanganer Cooperative Housing cuke The ITO,
Society Ltd., Vs. Ward-7(2),
Vill. Saypura, Tehsil Sanganer, Jaipur.
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.:
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj l@
s Assessee by : Shri Mahendra Gargieya (Adv.)
Shri Rohit Tiwari (Adv)
jktLo dh vksj ls@ Revenue by : Shri J.C. Kulhari (JCIT) &
Shri Laxman Singh (A.O)
lquokbZ dh rkjh[k@ Date of Hearing : 30/08/2019
mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 25/11/2019
vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A)-III, Jaipur dated 27.03.2015 for Assessment Year 2006-07 wherein the assessee has taken the following grounds of appeal:-
"1. The impugned additions and disallowances made in the order u/s 147/143(3) dated 17.02.2014 are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be deleted.2 ITA No. 408/JP/2015
M/s Sanganer Cooperative Housing Society Ltd. vs. ITO
2. The very action taken u/s 147 r/w 148 is bad in law without jurisdiction and being void ab-initio, the same kindly be quashed. Consequently the impugned assessment framed u/s 144/148 dated 17.02.2014 also kindly be quashed.
3. Rs.72,98,000/-: The ld. CIT(A) erred in law as well as on the facts of the case in confirming the addition made on account of alleged investment made in the purchases of the lands, in this year for Rs.72,98,000/- as against the actual payment having been made of [Rs.34,22,000/- + Rs.12,00,000/-]. The addition so made and confirmed by the ld. CIT(A), is contrary to the provisions of law and facts hence, kindly be deleted in full.
4. Rs.2,00,000/-: The ld. CIT(A) erred in law as well as on the facts of the case in confirming the estimation of income made from the suspected operations of the development of the housing plots without any evidence or basis. The addition so made and confirmed by the ld. CIT(A), is contrary to the provisions of law and facts hence, kindly be deleted in full.
5. The ld. AO erred in law as well as on the facts of the case in assessing the total income of Rs.74,98,000/- in the hands of the Appellant Society ignoring the legal position that no income is taxable in its hands on account the concept of mutuality by which it is covered. Hence, both the additions made is contrary to the provisions of law and facts of the case. Hence, the same kindly be deleted in full.
6. Rs.2,67,271/- u/s 234A + Rs.25,39,071/- u/s 234B: The AO & ld. CIT(A) both erred in law as well as on the facts of the case in charging interest u/s 234A & 234B of the Act. The appellant totally denies its liability of charging of any such interest. The interest so charged, being contrary to the provisions of law and facts, kindly be deleted in full."3 ITA No. 408/JP/2015
M/s Sanganer Cooperative Housing Society Ltd. vs. ITO
2. In ground No. 1& 2, the assessee has challenged the assumption of jurisdiction by the AO by issuance of notice U/s 148 of the IT Act.
3. The ld. AR submitted that a valid service of notice is a foundation for the validity of the reassessment proceedings and is not a mere procedural requirement but a condition precedent to the validity of reassessment. It was submitted that in this case, it is an admitted fact that the impugned notice U/s 148 of the Act was never served upon the assessee society. It was submitted that the AO in his assessment order has stated that the notice U/s 148 dated 26.03.2013 was duly served through post, however, no details were provided as to the name of the person on whom service through post, if any was effected and whether that person is the assessee society. During the course of appellate proceedings before the ld. CIT(A) who called for the assessment records, the ld CIT(A) has stated that the acknowledgment was signed by one Smt. Manju and once the notice sent through registered post, it may be any person available at the time of delivery of such notice hence, it cannot said that the notice U/s 148 of the Act was not served on the assessee. It was submitted that even the ld. CIT(A) has not denied the fact that the said notice was not at all served upon any of the office bearers, the President or the Secretary of the society nor Smt. Manju has been shown to be authorized by the assessee society. It was submitted that there is nothing on record to show that what connection Smt. Manju had with the assessee society and whether she was their employee, duly authorized in this behalf. It was further submitted that merely because the notice was sent through a registered post, does not always give rise to a valid presumption U/s 27 of the 4 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO General Clauses Act, 1987 as regard a valid service and the presumption so raised is rebuttable. In the instance case, the circumstances clearly shows that the envelope was not correctly addressed and that is a reason, it could not be served upon the assessee society. The Revenue admitted having served the notice upon Smt. Manju which itself impliedly prove that it was not a service effected on the assessee itself and that it was not correctly addressed as the law required. It was further submitted that the notice has been sent to Gulab Devi's address to whom notice was issued U/s 133(6) of the Act dated 12.02.2013 which she replied vide letter dated 18.02.2013. Further, she was summoned U/s 131 dated 27.02.2013 and she appeared and her statement was recorded and she also filed further submission dated 01.03.2013. In her replies and the statement so recorded, she clearly submitted that it was the assessee society who entered into a purchase agreement dated 04.06.1998 and also gave the registration no. of the society, copies of receipts and agreement etc. It was further submitted that even the reasons so recorded contained her address through registration no. of the assessee society was also mentioned. It was accordingly submitted that the vital fact goes to show that the AO was already having the information as regard the existence of the society, its registration number and also its address but despite this, the AO chose to send the notice at the address of Smt. Gulab Devi only. Thus, prior to 26.03.2013 when notice U/s 148 of the Act was issued, the AO was well aware of these facts and hence, could have obtained the address from the office of Registrar of societies, Jaipur. Gulab Devi. However, even then notice was sent at the incorrect address. It was further submitted that it is not the case of AO that Smt. 5 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO Gulab Devi was authorized for receiving notice from the Income Tax Department thus, the presumption raised U/s 27 of the Act has been successfully rebutted in the instance case. Further reliance was placed on the Hon'ble Delhi High Court decision in case of CIT vs. Chetan Gupta (2015) 64 CCH 0013 and Mrs. Shubhashri Panicher vs. CIT In DBITA No. 202/2015 order dated 24.10.2017.
4. It was further submitted that in the reason recorded before issuance of notice U/s 148 of the Act, it was alleged that there was an escapement of income this year because there was no source of the payments made by the assessee to the sellers based on the two registered sale deeds allegedly showing or believed that the subjected payment made in this year for purchase of lands and that no return was filed. In this regard, it was submitted that belief formed by the AO was neither honest nor reasonable nor were based upon reasonable grounds. On the contrary, it was a it was a mere pretense based on suspicion resulting from a purported misreading of the information i.e. the two registered sale deeds in as much as it is an unrebutted fact, coming out of the record that the entire payment was made prior to 2005 and not at any time during this year or before the Sub- Registrar hence, there could not have been any escapement of income in AY 2006-07. It was further submitted that even the ld. CIT(A) has himself accepted the evidentiary value of a registered sale deeds. Therefore, it was submitted that the facts mentioned in the registered sale deeds operate as binding facts upon all the parties concerns including the AO. It was further submitted that even the AO himself had agreed based on the same registered sale deeds that to the extent of Rs.46.22 lakhs, the 6 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO appellant Society has already made payment sometime prior to the subject year and therefore, he added only the balance of Rs.72.98 lakhs and moreover this way, the AO was also trying to explore the possibility of some income and not the existing escaped income. It was accordingly submitted that when the very information that there was no payment at all made by the appellant this year, implies there was no unexplained income chargeable to tax this year, hence there can't be any question of escapement of such income this year. It was accordingly submitted that the subject transaction took place long back in F.Y. 1998-99 (A.Y. 1999-00) and it was a mere suspicion on the part of the AO to presume some payment was made by the appellant in this year therefore, even prima facie no reasons existed for AO to have reason to believe has escaped assessment. It was accordingly submitted that the impugned notice u/s 148 be quashed.
5. Per contra, the ld. DR has submitted that there is no infirmity in the action of the Assessing Officer in assuming jurisdiction U/s 147 of the Act. It was submitted that basis the information available on record, action U/s 147 was initiated in the case of assessee and after taking prior approval from the competent authority, notice U/s 148 of the Act was issued on 26.03.2013 and the same was duly served on the assessee, accordingly, the proceedings initiated were as per law. It was further submitted that during the course of appellate proceeding, the ld. CIT(A) has examined assessment records and held that the notice was issued well in time and served through registered post. He further supported the findings of the ld. CIT(A) and drawn our reference to para 4.7 of ld CIT(A) order which is reproduced as under:-
7 ITA No. 408/JP/2015M/s Sanganer Cooperative Housing Society Ltd. vs. ITO "4.7 I have carefully considered the findings of the AO as also submission of the appellant. It may be noted that the appellant has disputed the proceedings u/s 147 / 148 mainly by contending that notice issued u/s 148 was not properly served.
The AO's case is that valid information was available that the assessee has purchased land measuring 4.4 Hectares by way of sale deed dated 04.07.2005 from Sh. Bhura ram, Sh. Kana ram, Sh. Chandala and Sh. Rameshwar for sale consideration of Rs. 88 Lacs in the name of Smt. Gulab devi Bairwa and the whole investment was made by the assessee. Another land was purchased vide sale deed dated 04.07.2005 for Rs. 3400000/- out of which payment of Rs. 12 Lacs has already been made whereas the remaining payment of Rs. 18.40 Lacs was made at the time of sale deed and that this land was also purchased in the name of Smt. Gulab devi but the whole investment was made by the assessee. In this manner total undisclosed investment of Rs.7298000/- was made. Due to such specific information the AO initiated proceedings u/s 147 of IT Act and notice u/s 148 was issued on 26.03.2013 which was sent through registered post. The AO also disposed of the objection raised by the assessee in respect of initiation of proceedings u/s 147. On the other hand the appellant case is that notice u/s 148 was not validly served. The another objection of the appellant is that the AO was not having valid information for initiation of proceedings u/s 147 /148 of I T Act in as much as the land in question has already been purchased by the assessee way back in 1998 and that the sale deed in 2005 were 8 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO executed just to regularize the earlier purchase in as much as the land in question was originally owned by the SC person and legally such land could have been sold / transferred to the SC person only. On careful consideration of relevant facts it may be noted that for initiation of proceedings u/s 147 / 148 the basic requirement is that the AO should have the reasons to believe that income has escaped assessment. In the appellant case the AO was having information that as per two sale deeds dated 04.07.2005, assessee has purchased the land in the name of Smt. Gulab devi where in total undisclosed investment of Rs 7298000/- was made. There is no dispute on the fact that the assessee purchased such land in the name of Smt. Gulab devi. These reasons very much justified initiation of proceedings u/s 147 of IT Act. As regards the contention of the assessee that notice u/s 147 / 148 was not served in time, it may be mentioned that during the assessment proceedings the assessment record was called for and it was found that the notice issued U/s 148 was duly dispatched as also that the evidence of service of notice was received back by way of acknowledgment duly signed by one Smt. Manju. Through the appellant is contending that the notice was not served on any responsible persons/representative but the fact is that the notice was issued well in time before the limitation period, the same was sent through registered post and the postal authorities have duly served the same on the persons who may have been available at the time of delivery of such notice. Therefore, it cannot said that the notice U/s 148 was not was served in time. According the ground of appeal are dismissed."
9 ITA No. 408/JP/2015M/s Sanganer Cooperative Housing Society Ltd. vs. ITO
6. We have heard the rival contentions and pursued the material available on record. There is no dispute that the notice has been validly issued by the Assessing Officer on 26.03.2013 within the limitation period. The limited dispute relates to the service of notice U/s 148 of the IT Act on the assessee society. The notice u/s 148 dated 26.03.2013 has been addressed to the assessee society at the address "Sanganer Co-operative Housing Society Ltd. C/o Gulab Devi Bairwa W/o Motil Lal R/o village Saypura, Tehsil- Sanganer, Jaipur". The said notice has been sent by the registered post. Further, during the course of hearing before us, the assessment records were called for and as per records, "acknowledgement due" of the notice has been received back by the Income tax Department from the Department of Post and the same has been signed by Smt. Manju Devi. It is therefore noted that the notice issued u/s 148 has been addressed to the assessee C/o Smt Gulab Devi Bairwa and it has been received by Smt Manju Devi which establishes that the notice addressed to the assessee society has been duly served. Smt Gulab Devi is the person who has signed the registered sale deeds dated 04.07.2005 with the respective sellers. As per the accepted and admitted position of the assessee, she has signed the registered sale deeds on behalf of the assessee society. Therefore, where the assessee society has authorized her to sign the sale deeds on its behalf, she is clearly a known, recognized, and authorized person as far as assessee society is concerned. More so, when she has also confirmed in her submissions in response to notice U/s 133(6) of the Act dated 12.02.2013 as well as subsequent submissions dated 01.03.2013 before the Revenue authorities that it is the assessee 10 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO society which has entered into purchase agreement dated 4.6.1998, it was the assessee society which has purchased the land from the sellers and the assesse society has made payment to the two sellers and that she had entered into registered sale deeds on behalf of the assessee society. Where she has been authorized to file written submissions and related documentation on behalf of the assessee society before the Revenue authorities, to say that she is not authorized to receive the notice issued u/s 148 on behalf of the assessee society cannot be accepted as the assessee society through its affirmative actions has authorized her to act on its behalf so far as matters relating to the impugned transactions are concerned. Therefore, basis such information and the fact that the registered sale deeds also carry the address of Smt Gulab Devi, we do not see any infirmity in the action of the AO in issuing notice to the assessee society C/o Smt. Gulab Devi at her address so provided in the registered sale deeds. It is not a case where the assessee society is an existing income tax assessee and has filed its return of income and has a Permanent Account number. The only tangible piece of information which is available with the AO is a copy of the registered sale deeds which has been signed by Smt. Gulab Devi and as per her submission before the Revenue Authorities, she has signed the same on behalf of the assessee society. Therefore, in the absence of any other information in possession of the AO where the notice U/s 148 of the Act is issued to the Assessee society C/o Smt. Gulab Devi at the address given in the sale deeds and which has been duly served, we do not see any infirmity in the action of the Assessing Officer. The fact that Smt Manju Devi was present at the premises of Smt Gulabi Devi and she has accepted the notice has not been 11 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO disputed. Therefore, once the notice has been validly addressed to the assessee society C/o Gulab Devi and the same has been received by her through Smt. Manju Devi, we do not see any infirmity as far as the service of notice on the assessee society is concerned. We are therefore unable to accede to the contentions so raised by the ld. AR regarding invalid service of notice to the assessee society.
7. Further, regarding the basis of formation of belief that the income of the assessee society has escaped assessment, we refer to the notice issued U/s 148 which reads as under:-
"As per information available (copies of sale deed) with this office, the assessee society through one of its member Smt. Gulab Devi Bairwa R/o village Saypura, Tehsil- Sanganer, has purchased the following properties during the year under consideration:-
Date of Purchased Amount Details Location of
transaction from purchase land & Cost of
acq.
2/07/2005 Shri Jodha S/o Rs. 99/525,112,113 Village-
Genesh 30,40,000/- Mangyawas
Value adopted Tehsil-
by Registrar Rs Sanganer,
76,48,000 Jaipur.
2/07/2005 Bhuraram, Rs. 100/524,101, Village-
Kanara, 88,80,000/- to 111,111/522 Mangyawas
Chandalal S/o Value adopted Tehsil-
Fattaram and by Register Rs. Sanganer,
Ramershwar 72,16,81,760/- Jaipur.
S/o Daularam
12 ITA No. 408/JP/2015
M/s Sanganer Cooperative Housing Society Ltd. vs. ITO The assessee is not filing its return of income. Moreover, the source of investment made of Rs. 1,19,20,000/- ( 88,80,000- 30,40,000) remains unexplained. Thus, I have reasons to believe that income to the tune of Rs. 1,19,20,000/- has escaped assessment."
8. On perusal the reasons so recorded, we find that the Assessing Officer was having in his possession, copy of the two sale deeds wherein the assessee society through Smt. Gulab Devi has purchased certain properties at village Mangiyavash, Tehsil Sanganer, Jaipur. The date of the transaction, the name of the parties, the amount of the consideration, valued adopted by the Registrar and exact location of the property has not been disputed by the assessee society. We are, therefore, of the considered view that the AO was having tangible material in his possession for formation of belief that the source of the investment regarding purchase of these two properties are unexplained and therefore, to that extent, prima facie, the income of the assessee society has escaped assessment. Subsequently, on examination during the assessment proceedings, where the AO has accepted the position that part payment has been made in earlier year (Rs 46.22 lacs) and taxed only a part of the amount (Rs 72.98 lacs) and not the whole of it, the same cannot be a basis to hold that the assumption of jurisdiction u/s 147 is bad in law. In the light of the same, we are unable to accede to the various contentions so advanced by the ld. AR and the same cannot be accepted. In the result, ground no. 1 & 2 of the assessee's appeal are dismissed.
13 ITA No. 408/JP/2015M/s Sanganer Cooperative Housing Society Ltd. vs. ITO
9. In ground no. 3, the assessee has challenged the action of the ld. CIT(A) in confirming the addition on account of investment made in purchase of two properties amounting to Rs. 72,98,000/-.
10. In this regard the ld. AR submitted that the appellant is a housing society which has developed a scheme namely 'Ganga Vihar' and for the purposes, the assessee has bought a piece of land vide agreement dated 04.06.1998. The assessee society took possession of the land and made payment of the entire purchase consideration of Rs. 12,00,000/- and Rs. 34,22,000/- on various dates and copies of the receipt were submitted during the course of assessment proceedings. Regarding figure of Rs. 88,08,000/- and Rs. 30,40,000/- appearing in the registered sale deeds, it was submitted that the same were mentioned by the parties only with a view to make the payment of the proper stamp duty based on the DLC rates as advised at that point of time on this aspect. However nothing was paid over and above the consideration as agreed in the agreement of 1998. In this regard, it was submitted that there are several evidences which support the above version in as much as the sale deeds were registered in July-2005 and thereafter in a supplementary deed entered between sellers and the assessee society executed on 10.10.2005, it is specifically made clear that the assessee society had already paid the agreed consideration vide the agreement dated 04.06.1998 and nothing remained to pay to the sellers. Similarly, in the receipts acknowledging the full payment of consideration as agreed through the said agreement, the sellers again admitted having received the consideration. Further, sellers have affirmed that the subject pieces of land were sold vide agreement dated 14 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO 04.06.1998 and the sale consideration of which has been received and there was nothing outstanding. Further, affidavits of the two witnesses who witnessed the transactions were also filed. It was accordingly submitted that the entire transaction took place in the year 1998 and what happened thereafter has to be seen in continuation of the original agreement on 04.06.1998. The appellant society took possession of the land, developed the scheme and allotted the plots to various persons/members in the year 1998-90 onwards, the actual consideration paid was only Rs. 34,22,000/- and Rs. 12,00,000/-only and the consideration mentioned in the sale deed was not actual sale consideration and no payment was made in the year 2005 as alleged by the AO. It was accordingly submitted that there is no basis for the AO to hold that the assessee failed to explain the source of the investment of Rs. 72.98 lakhs.
11. Per contra, the ld. DR submitted that the payment for purchase of land was made amounting to Rs. 88.00,000/- to Shri Bhura Ram and others, out of which Rs. 34,22,000/- was paid earlier and remaining amount of Rs. 54,58,000/- was paid at the time of registry. Similarly, payment of Rs. 30,40,000/- was paid to Shri Jodha, out of which Rs. 12,00,000/- was paid earlier and remaining Rs. 18,40,000/- was paid at the time of registration of land which was got registered in F.Y. 2005-
06. Therefore, the total payment of Rs. 72,98,000/- was paid by the assessee at the time of registration for which no proper source was explained and hence the same was added by the AO treating it as payment made from undisclosed sources and accordingly brought to 15 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO tax. He accordingly supported the findings of the Assessing Officer which has been confirmed by the ld. CIT(A).
12. We have heard the rival contentions and pursued the material available on record. Firstly, we are unable to accede to the contention of the ld AR that sale consideration figure of Rs. 88,08,000/- and Rs. 30,40,000/- as appearing in the registered sale deeds were mentioned by the parties only with a view to make the payment of the proper stamp duty based on the DLC rates and were not the actual sale consideration. For the purposes of payment of stamp duty, no doubt DLC is relevant criteria but where the parties have not actually agreed on a sale consideration equivalent to that of DLC, it is difficult to accept that merely for the purposes of paying the stamp duty, they have artificially inflated the sale consideration knowing fully well the tax consequences thereof. In our view, no person with reasonable intellect and even with a rural background will agree to such a proposition.
13. In order to examine the aforesaid contention further, we refer to agreement dated 04.06.1998 entered into by the assessee society with Shri Bhuraram, Kanara, Chandalal for their land bearing Khasra No. 100/524,101, to 111,111/522 situated at village Mangyawas, Tehsil- Sanganer, Jaipur wherein 17 bigha 11 biswa of the land was agreed to be sold to the assessee society, as per para 3 of the agreement dated 04.06.1998, an amount of Rs. 2 lakh/ bigha was agreed between the parties, however the same has to be read along with para 6 of the said agreement, the contents thereof reads as under:-
16 ITA No. 408/JP/2015M/s Sanganer Cooperative Housing Society Ltd. vs. ITO 6- ;g fd izFke i{k foØsrkx.k viuh bPNkuqlkj fodflr ftrus Hkw[k.M vius o vius ifjokj ds lnL;ksa ds uke ysuk pkgsxa s lfefr }kjk fodflr Hkw[k.Mksa dh r; dh xbZ jsV vuqlkj lfefr ls vkoaVu i=] jlhn ,oa vU; dkxtkr izkIr dj ysxa s rFkk bu Hkw[k.Mksa dh jkf'k Hkwfe ds foØ; izfrQy jkf'k esa lek;kstu djok ysxa sA It is therefore noted that in addition to cash consideration, it was also agreed among the parties that the sellers will also get developed plots and the consideration thereof shall be included as part of the overall sale consideration for the purpose of sale of the land. Therefore, we find that in the instant case, there is cash consideration as well as consideration in kind whereby developed plots at the specified rate will be given by the assessee society to sellers as consideration for purchase of the land. Subsequently, it is noted that in the registered sale deed dated 02.07.2005 which has been entered into by Smt. Gulab Devi on behalf of the assessee society and the sellers, the consideration has been mentioned at Rs. 88,08,000/- which has been said to have been received prior to entering into the sale agreement on 2.07.2005. Subsequently vide the supplementary deed dated 10.10.2005, it has been clarified that the sellers are in possession and enjoyment of the developed plots in addition to the receipt of the cash consideration and the relevant part of the supplementary deed reads as under:-
";g fd ge lHkh dk'Rkxkjksa us vius & vius fgLls dh Hkwfe dks nh lkaxkusj dkW& vkWijsfVo gkmflax lkslk;Vh fyfeVsM] lkaxkusj] iath;u Øekad 60@,y dks tfj;s bdjkj i= cspku djuk Lohdkj dj lkbZ isVs /kujkf'k izkIr dj ys[k dj fn;k Fkk RkFkkk lfefr us bl lEiw.kZ Hkwfe ij viuh xaxk fogkj ds uke ls l`ftr ;kstuk dk fodkl dj vius lnL;ksa dks Hkw[k.M vkoafVr dj EkkSds ij okLrfod dCtk ns fn;k Fkk RkFkk ekSds ij ge [kkrsnkjku~ dk Hkh ;kstuk Iyku vuqlkj pkgs x, fodflr Hkw[k.Mksa dk vkoaVu dj bu Hkw[k.Mksa dh jkf'k dk foØ; izfrQy jkf'k esa lek;kstu dj gesa vkoaVu i=] jlhn /kujkf'k o uD'kk iznku dj fn;s 17 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO Fks ftu ij ge lHkh [kkrsnkj iw.kZ :Ik ls dkfcr gS rFkk viuh lEifRr dk mi;ksx o miHkksxs Hkyh & Hkkafr djrs pys vk jgs gSa ,oa lfefr ds vU; vkoaVh Hkw[k.M/kkjh Hkh Hkyh&Hkkarh vius&vius Hkw[k.Mksa dk mi;ksx o miHkksx dj jgs gSAa "
Therefore, we do not agree with the contention so advanced by the ld. AR that there is no consideration which has been paid by the assessee society over and above the cash consideration as all these three documents read together clearly demonstrate that besides cash consideration, there was consideration in form of developed plots which were handed over to the sellers by the assessee society and both the consideration taken together will act as full discharge of sale consideration for sale of plots of land. Therefore, there is cash consideration of Rs 34,22,000 and consideration in kind by way of value of developed plots worth Rs 54,58,000 totalling to Rs 88,00,000. Similar is the position regarding the other agreement with Shri Jodha as all the three documents carry the similar narrations as we have noted in case of the first agreement and there is cash consideration of Rs 12,00,000 and consideration in kind by way of value of developed plot worth Rs 18,40,000 totalling to Rs 30,40,000. Therefore, the contention of the ld AR that purchase consideration is limited to cash payment of Rs. 34,22,000/- and Rs. 12,00,000/- respectively in respect of both the agreements cannot be accepted.
14. Now coming to the next question as to when the ownership and possession over the developed plots have been handed over to the sellers as the same will help determine the year of investment towards the purchase of plots of land. In both the sale deeds which have been 18 ITA No. 408/JP/2015 M/s Sanganer Cooperative Housing Society Ltd. vs. ITO executed during the year, it has been mentioned that consideration has been discharged prior to the entering into the registered sale deed, therefore, it is clear that the ownership and possession of the developed plots have been handed over prior to 2.07.2005. However, whether the same have been handed over in the impugned financial year beginning 1.04.2005 onwards or earlier, the said fact is not emerging from the records. Therefore, for the purposes of determining as to when the developed plots have been handed over to the sellers, the matter is remanded back to the file of the Assessing officer. Where the ownership and possession over the developed plots have been handed over to the sellers during the impugned financial year, the purchase consideration towards the purchase of plot of land will be held to be discharged during the impugned financial year and also there would be corresponding sale consideration for sale of developed plots which apparently has not been disclosed and offered to tax. Since both these events are inter-linked and remained undisclosed, the Assessing officer would be well within his jurisdiction to bring to tax undisclosed investment in purchase of plot of land amounting to Rs 54,58,000 and Rs 18,40,000. Accordingly, the matter is set aside to the file of AO to examine and decide the same in light of above directions. In the result ground no. 3 is allowed for statistical purposes.
15. In ground no. 4, the assessee has challenged the trading addition of Rs. 2,00,000/-. Since we have set aside the matter relating to purchase of land to the file of the Assessing Officer, the same is also satisfied to the file of the Assessing Officer to examine the same afresh. The ground no. 4 thus allowed for statistical purposes.
19 ITA No. 408/JP/2015M/s Sanganer Cooperative Housing Society Ltd. vs. ITO
16. Ground no. 5 is general in nature which does not require any specific adjudication.
17. Similarly, ground no. 6 is relating to levy of interest U/s 234A and 234B. The same being consequential does not require any separate adjudication.
In the result, the appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open Court on 25/11/2019.
Sd/- Sd/-
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(Vijay Pal Rao) (Vikram Singh Yadav)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:-25/11/2019.
*Santosh
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- M/s Sanganer Cooperative Housing Society Ltd., Jaipur
2. izR;FkhZ@ The Respondent- ITO, Ward-7(2), Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur.
6. xkMZ QkbZy@ Guard File { ITA No. 408/JP/2015} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar