Income Tax Appellate Tribunal - Jaipur
Alok Mukherjee, Individual, Jaipur vs Department Of Income Tax on 21 October, 2015
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM
vk;dj vihy la-@ITA No. 887/JP/2012
fu/kZkj.k o"kZ@Assessment Year : 2004-05.
Income Tax Officer, cuke Alok Mukherjee (Individual),
Ward 3(2), Jaipur. Vs. Hathi Babu Bagh, Station
Road, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. ACJPM 0161 H
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 862/JP/2012
fu/kZkj.k o"kZ@Assessment Year: 2004-05.
Alok Mukherjee (Individual), cuke Income Tax Officer,
Hathi Babu Bagh, Station Road, Vs. Ward 3(2), Jaipur.
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. ACTPM 0161 H
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 871/JP/2013
fu/kZkj.k o"kZ@Assessment Year : 2004-05
Late Smt. Seema Mukherjee cuke Income Tax Officer,
through L/H Shri Alok Mukherjee Vs. Ward 3(2), Jaipur.
& Sh. Aroop Mukherjee, Hathi
Babu Bagh, Station Road, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.
vihykFkhZ@Appellant izR;FkhZ@Respondent
2
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
vk;dj vihy la-@ITA No. 888/JP/2012
fu/kZkj.k o"kZ@Assessment Year : 2004-05.
Income Tax Officer, cuke Aroop Mukherjee (HUF),
Ward 3(2), Jaipur. Vs. Hathi Babu Bagh, Station Road,
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 872/JP/2012
fu/kZkj.k o"kZ@Assessment Year: 2004-05.
Satkori Mukherjee Charitable cuke Income Tax Officer,
Trust, Hathi Babu Ka Bagh, Vs. Ward 3(2), Jaipur.
Station Road, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Shri Raj Mehra (JCIT)
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Praveen Saraswat (CA)
lquokbZ dh rkjh[k@ Date of Hearing : 14/10/2015.
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 21/10/2015.
vkns'k@ ORDER
PER BENCH These appeals are being filed by the different assessees and heard together and related to one family on commons issue of transfer of capital 3 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
assets. Therefore, for the sake of convenience these are being disposed of by a common order, but we are deciding each ITA individually.
2. ITA No. 887/JP/2012 and ITA No. 862/JP/2012 ITO Ward 3(2), Jaipur Vs. Alok Mukherjee (Individual) These are the cross appeals one by the revenue and another by the assessee arise against the order dated 13/09/2012 passed by the learned C.I.T.(A)-I, Jaipur for A.Y. 2004-05. The effective grounds of appeals are as under:-
Ground of revenue's appeal ITA No. 887/JP/2012 "Whether on the facts and in the circumstances of the case and in law the ld CIT(A) is justified in deleting the addition from sale of Rs. 36,12,659/- holding the assessability of LTCG in respect of four properties sold by the assessee in the hands of HUF."
Ground of assessee's appeal ITA No. 862/JP/2012 "1. That the Assessing Officer did not have the valid jurisdiction to make re-assessment U/s 147 as the Service of the notice U/s 148 issued on 31/3/2011 and served on 31/3/2011 itself by way of 'affixture', in spite of presence of the assessee for accepting the notice, was invalid ab-inito.
2. That the ld CIT(A) has erred by confirming the action of the Assessing Officer for not providing the 'Reasons to believe for escapement' either with the notice/assessment order or despite the subsequent written request of assessee and therefore the re-opening proceedings are invalid U/s 147/148.4
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
3. The Assessing Officer did not have the valid jurisdiction to make re-assessment U/s 147 as the formation of the 'Reasons to believe' for escapement/under-assessment of income were improper and defective based on the wrong foundation that assessee had not filed the Income tax return for A.Y. 2004-05, which is against the apparent fact, while it was submitted on 21/3/2005.
4. That the ld. CIT(A) has erred by confirming the action of Assessing Officer of assessing 'Capital Gains' in A.Y. 2004-05 by ignoring the basic fact that 'Transfer of Capital Asset' had already completed, in terms of Section 2(47)(v), 2(47)(vi) and explanation 2 to the Section 2(47), in the relevant assessment years i.e. 1981-82 itself, when the agreement to sale was executed accompanied with handing over of physical possession of Capital Asset and purchaser had made construction over it and enjoying the property for business/residence.
5. That the ld. CIT(A) has erred in upholding the action of A.O. by ignoring the law that Section 50C came on the Statute w.e.f. 01/4/2003 and the transactions through 'Agreement to sell' or 'Power of Attorney' came in the enlarged scope of Section 50C(1) w.e.f. 01/10/2009 whereas the Capital Assets of the assessee were transferred by way of agreement from assessment year 1981-82 itself.
6. Without prejudice to above grounds, the appellant submits that the ld CIT(A) has erred in upholding the action of A.O. who has wrongly initiated proceedings for assessment year 2004-05, as sale deed in question was not registered in the said assessment year. The relevant sale deed i.e. Mohan Joshi was executed, presented and registered before Registration Authority on 5 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
31/3/2003 i.e. assessment year 2003-04. Hence the whole proceedings for assessing capital gains is void ab- inito for the sale deed in favour of Mohan Joshi.
3. The revenue has challenged the order of the ld CIT(A) holding that assessability of long term capital gain in respect of four properties sold by the assessee in the hands of HUF. The ld Assessing Officer observed that the assessee had sold the following properties:
Name of Name of Property Dt. Of Face Evaluated Difference the seller purchaser registration value value by Sub Registrar Alok Ramesh P.No. 5, Vaibhav 20/06/2003 12,912 1081961 1069049 Mukherjee Jain Nagar, Jaipur Naresh P.No. 10, Vaibhav 10/07/2003 12667 737875 725208 Kumar Nagar, Jaipur Raj P.No.2, Hathi Babu 15/10/2003 6600 802627 796027 Kumar Bagh, Station Road Jaipur Mahaveer P.No.2, Hathi Babu 15/10/2003 8680 990196 981516 Pd. Bagh, Station Road Jaipur Alok Mohan Hathi Babu Ka 19/12/2003 100000 6888625 3394312 Mukherjee Joshi Ahata, Kachi Basti, (1/2 share) Jaipur (1/2 Share) 6966112
4. In all the cases, notice U/s 148 of the Income Tax Act, 1961 (hereinafter referred as the Act) was issued and detailed questionnaires were also sent by the Assessing Officer. There was no compliance from all the assessees, therefore, order U/s 144 was passed by the Assessing Officer in all the cases. All the cases were scrutinized by the Assessing Officer. In all the cases, notices were issued to the assessees to furnish the details but no 6 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
compliance was made by them. Therefore, the ld Assessing Officer decided the case U/s 144 of the Act. The ld Assessing Officer observed that in all the cases, details available with the department revealed that all these properties were acquired by all the assessees prior to 01/4/1981 for ascertaining fair market value (in short FMV) of all the properties as on 01/4/1981. The ld Assessing Officer collected information in respect of transfer of immovable properties during the contemporary period in respect of similar properties sold and also to ascertain the FMV based on the value adopted by the registering authority during the period nearby 01/4/1981. As such the ld Assessing Officer called for information U/s 133(6) of the Act in respect of DLC rates of the above properties as on 01/4/1981 from Sub- Registrar Jaipur-2, who vide letter No. 1240 dated 11/11/2011 had stated that DLC for the year 1981 was not decided by the department. The DIG (Stamp), Jaipur had also submitted the same report. He further observed that simultaneously, it was noticed that Shri Avani Kumar Mukherjee , who happens to be the father/husband of the assessees had entered into an agreement of sale of property on 01/8/1980 situated at Hathi Babu Ka Bagh, Jaipur measuring 488.89 sq.mt to Shri Ram Rikh Joshi for a consideration of Rs. One lac. This has given the rate of Rs. 204/- per sq. mt. the properties 7 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
sold by Shri Avani Kumar and the assessee were located in the same locality. The FMV is to be taken for 01/4/1981, thus there was a need for allowing additional cost of acquisition for intervening period so as to ascertain FMV as on 01/4/1981. Looking to the gap available in the period it will be justified if 10% increase is allowed for this purpose. Accordingly, the FMV as on 01/4/1981 calculated to Rs. 225 per Sq.Mt. The ld Assessing Officer again gave show cause notice U/s 144 vide letter dated 13/12/2011, which has been reproduced by the Assessing Officer in respective years assessment orders. The assessees filed reply on 19/12/2011 in all the cases, which has also reproduced by the Assessing Officer in respective assessment orders. The another written reply was filed by the assessees in the case of Shri Alok Mukherjee and Shri Aroop Mukherjee (HUF), which has also been reproduced in respective assessment orders by the ld Assessing Officer. The ld Assessing Officer considered the assessees' reply and observed as under:-
10.1 "Transfer of Property" has been defined under Sec. 5 of the Transfer of Property Act as "an act by which a living person conveys property, in present on in future, to one or more than living persons or to himself; or to himself and one or more other living persons; and "to transfer property" is to perform such act".8
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
10.2 "Sale" has been defined u/s 54 of the said Act as transfer or ownership in exchange for a price paid or promised or part- paid and part-promised. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other tangible thing, can be made only by way of registered instrument.
10.3 Sec. 17 of the Indian registration Act provides for compulsory registration of all instruments of gifts or immovable property and other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
10.4 Sec. 23 of the Registration Act further provides that except in special circumstances, no document other than a will shall be accepted for registration unless presented for that purpose to the proper office within four months from the date of its execution other than special circumstances as provided U/s 25 thereof.
10.5 The Rajasthan Stamps Duty Act, 1998 requires every instrument to be duly stamped unless it is exempted under that Act. Thus all the instruments which operate to transfer or convey any right in respect of immovable property 9 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
including instruments or partition, lease, mortgage, power of attorney etc. have to be duly stamped under the Rajasthan Stamp Duly Act. A plane reading of above clarifies that any document which purports to transfer right in any immovable property in the State of Rajasthan, has to be properly stamped under the Rajasthan Stamp Duty Act and duly registered under the Indian registration Act. There is no valid transfer of rights in respect of any immovable property unless these two legal obligations are discharged by the transacting parties. Mere agreements between two parties cannot override the provisions of law. Even transactions of the type referred to U/s 53A of the Transfer of Property Act require that the document has to be registered and mere delivery of possession of an immovable property does not constitute transfer thereof within the meaning of the law. 10.6 In support of above, reliance is placed on the decision of Hon'ble Apex Court in the case of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. (SLP (C) No. 13917 of 2009) reported in 2011 STPL(Web)879 S.C. In para 16 & 18 of the judgment, the Hon'ble Apex Court held that:-
"16. We, therefore, reiterated that immovable property can be legally and lawfully transferred/conveyed only by a registered deed or conveyance. Transaction of the nature of 'GAP Sales' or SA/GPA/WILL transfers do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer or immovable property.........10
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
18. We have merely drawn attention to and reiterated the well settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.........................."
11.1 In view of the above facts and circumstances of the case and also the discussions made hereinabove, the contentions of the A/R of the assessee cannot be accepted. In view of the clear cut provisions of section 50C of the Income Tax Act and other related sections of the Transfer of Property Act, 1882, the Indian Registration Act, 1908 and the Rajasthan Stamp Duty Act, 1998, the property is said to be transferred only after registration and the value adopted by the registering authority for the purpose of stamp duty is taken as the full value of consideration received or accrued as a result of such transfer for the purpose of calculation of capital gain.
11.2 The value adopted by the registering authority, the first four properties of shows cause comes to Rs. 36,12,659/- (Rs. 1,08,1961+Rs. 7,37,875 + Rs. 8,02,627 + Rs. 9,90,196) and in the case of property situated at Hathi Babu Ka Ahata, Kachchi Basti, Jaipur it is Rs. 22,96,208/- (1/3 of Rs. 68,88,625/-). In show cause notice the evaluated value of this property was taken at Rs. 33,94,312/- in advertently instead of Rs. 68,88,625/-. Similarly, in view of the aforesaid 11 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
discussion, the Fair Market Value of the properties sold, as on 01/04/1981 is taken at Rs. 7,08,076/- and at Rs. 1,69,628/- (1/3 of Rs. 5,08,884/-) respectively. The property situated at Hathi Babu Ka Ahata, Kachchi Basti, Jaipur was sold to Sh. Mohan Joshi by three Co-owners, Smt. Seema Mukherjee and two sons namely Alok Mukherjee and Aroop MUkherjee, therefore assessee's share in this property is 1/3rd. Long term capital gain arising to the assessee's hands is thus computed in the following manner:-
Dt. Of Description of PropertyIndexed Evaluated Long term registration cost of value taken capital gain acquisition by the Sub Registrar 20/06/2003 P.No. 5, Vaibhav 234435/- Rs. 1081961 Rs. 8,47,526/-
Nagar, Jaipur 10/07/2003 P.No. 10, Vaibhav 148470/- Rs. 737875 Rs. 5,89,405/-
Nagar, Jaipur 15/10/2003 P.No.2, Hathi Babu 144292/- Rs. 802627 Rs. 6,58,335/-
Bagh, Station Road Jaipur 15/10/2003 P.No.2, Hathi Babu 180879/- Rs. 990196 Rs. 8,09,317/-
Bagh, Station Road Jaipur 19/12/2003 Hathi Babu Ka Ahata, 169628/- Rs. 2296208 Rs. 21,26,580/-
Kachi Basti, Jaipur (1/3
Share)
Long term Capital Gain Rs. 50,31,163/-
11.3 In respect of the above properties, the above sale deed
executed by Sh. Alok Mukherjee in his individual capacity as owner of the above properties, therefore, the long term 12 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
capital gain on sale of above said properties is taxed in the hands of the assessee i.e. Sh. Alok Mukherjee (Individual) The findings of the other cases are identical to the case of Alok Mukherjee on facts but capital gain in case of Late Seema Mukherjee was calculated at Rs. 30,17,017/-, Aroop Mukherjee HUF at Rs. 21,26,580/-.
5. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A)-I, Jaipur. Where in case of Alok Mukherjee, he challenged reopening U/s 148 of the Act, year of assessability and transfer took place on 01/8/1980, applying provision of Section 50C of the Act and FMV as on 01/4/1981. The ld CIT(A) in case of Sh. Alok Mukherjee held valid reopening U/s 148 and she held that documents were registered on 2/4/2003, therefore, the transaction pertained to A.Y. 2004-05. The proceeding initiated by the Assessing Officer with respect to transfer of property in Kachhhi Basti, Hathi Babu Ka Aahata to Mohan Joshi as 1/3rd co-owner was upheld. On application of Section 50C, transfer of assets U/s 2(47)(v), applicabilty of Section 50C and year of assessability, the ld CIT(A) has held as under:-
6.3 I have carefully perused the order of the AO and the submissions of the AR. The main contention of the AR is that since the Agreements of Sale for the first four properties in the 13 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
chart above were signed by Shri Avani Kumar Mukherjee as guardian of his minor son Alok Mukherjee in A.Y. 1976-77, and in case of the property transferred to Mohan Joshi in A.Y. 1981 - 82 the transfers came within the ambit of Sec.2(47)(v) of the I.T. Act, 1961. The subsequent registration of the sale deeds of these properties took place in A.Y. 2004-05. As Sec.50C was introduced in this statute with effect from 01/04/2003 it cannot be made applicable retrospectively on transfer of these properties which took effect prior to 01/04/2003 as per Sec. 53A of TP Act, read with Sec.2(47)(v) of the I.T. Act, 196l . I have carefully perused the order of the AO and the submissions of the AR and consider it necessary to summarize the facts of the case to bring clarity to the issue. The facts of the case are as follows:
1. A suit for partition of immovable properly by metes and bounds was filed by Smt. Seema Mukherjee wife of Shri Avani Kumar Mukherjee father of Shri Aroop Mukherjee and Alok Mukherjee on 18/03/1963 in the court of Senior Civil Judge Jaipur City No.1. The plaintiff submitted that the impartible estate of the defendant was resumed by the Rajasthan Govt. on 01/11/1958 and Shri Avani Kumar Mukherjee was paid in terms of cash and bonds by way of compensation. It was pleaded by Smt. Seema Mukherjee that the rule or primogeniture ceased to be applicable after the resumption proceedings by the Govt. and so the 14 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
property came under the personal law that is the Mitakshar Hindu Law. Thus it was sought that a partition of this HUF be made by metes and bounds and one fourth share of the property be given to Seema Mukherjee and one fourth each to the minor sons of Shri Avani Kumar Mukherjee namely Aroop Mukherjee and Alok Mukherjee.
2. Shri Alok Kumar Mukherjee defended the suit by submitting that though the suit properties were ancestral in nature, yet even after resumption they should be deemed to be his self acquired properties in which his wife and his children were not entitled to claim partition. In support of this contention he cited Sec.27 of the I.T. Act, 1961 which provides that for the purposes of Sec.22 to 26 the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate.
3. An order was passed by Senior Civil Judge Jaipur city, Civil Suit No. 11/63 on 30/05/ 1963. The Hon'ble Judge gave the decision in favour of the plaintiff that is Smt. Seema Mukherjee. The Hon'ble Judge observed in his order that the property sought to be partitioned was part of impartible property, which had devolved upon Shri Avani Kumar Mukherjee from his fore father under the rule of primogeniture. It was free from rights of younger brother, uncles, cousins and other relatives. The relevant portion of the order is reproduced below for reference:
15
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
"In the instant case the State Grant which made the estate an impartible one was resumed on 1st November, 1958 and with that resumption, the conditions attached with the grant were removed and whatever properties that were left in the hands of the defendant after such resumption became the property of the defendant having ordinary incidents of Hindu Law. With the resumption, a very important incident, governing the devolution of the impartible estate on a single heir by rule of primogeniture ceased to apply and the hitherto holder of impartible estate became subject to his personal law. This principle has been recognized in Sec.38 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 which provides that in the event of death of a Jagirdar the amount of compensation shall be paid to his heir or heirs according to his personal law, and thus the most important incident of an impartible, estate i.e. the right of devolution by rule of primogeniture on a single heir having gone, the other incident refusing right of partition, which was necessary to maintain the integrity of the estate and save it from fragmentation, automatically dwindles. Reference may be made to the Law of Impartible Estates by Bankim C.De at page 46, wherein it is mentioned that 'an estate or tenure which was originally impartible does not necessarily continue to be so and one single change in its nature of tenure, one single instance of non-observance of the custom will destroy it completely'. And also the maxim 'Cessante Causa, cessat effectus' which means when the cause ceases, the effect ceases, Thus the character of the property left with the defendant after the resumption of the State Grant i.e. the impartible estate assumes the character of the ancestral property as if in the hands of a sole surviving co- parcener, having all the incidents of coparcenary property). The reliance by the learned advocate for the defendant on the provisions of Sec.27 of the I.T. Act, I96I , is not of any help to him, as firstly the provision relied on is a 'deeming' provision which is generally introduced in an enactment in order to enlarge the meaning of the words and treat a person or thing one which it may or may not be, and such provisions have to be limited in 16 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
their scope to the statutes in which they occur, and secondly its applicability itself has been limited in its scope to the provisions of Sec. 22 to 26 of the I.T. Act only. Hence the meaning given cannot be extended to and applied in the consideration of the nature of property under the general provisions of Hindu Law. Moreover, the definition as given also is not applicable in the present case, because on the date of the suit, i.e. 16/03/1963, the defendant was not the holder or impartible estate. Thus the contention on behalf of the defendant has no force. It must, therefore, be decided that the plaintiff Nos.I and 2 have got a right to claim partition."
With the above observations a preliminary decree for partition of the suit properties was passed with one-fourth share allotted to Smt. Seema Mukherjee and one-fourth share each to the two minor sons Aroop Mukherjee and Alok Mukherjee. A reserve of Rs.50,000/- was set apart as a provision for the education and marriage of Ms. Shubhra Mukherjee daughter of Shri Alok Kumar Mukherjee. Shri Ram Swaroop Mishra was appointed Commissioner for partitioning of the said property.
4. Consequent to this judgment dated 31/05/1963, Shri Ram Swaroop Mishra divided the properties vide an order dated 31/07/1963.
5. The first four properties under consideration came to the share of Shri Alok Mukherjee and the fifth properly came into the hands of Shri Avani Kumar Mukherjee as per the order of Shri R.S. Mishra dated 3l/07/1963. It is an 17 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
established legal principle that when partition take place between the Karta and his sons by meets and bounds and there is a complete severance of status between father, mother and sons and the mother takes separately her share of family equal to the sons then the property falling to the share of the father would be assessable in his hands as an individual. Thus the fifth property was the individual property of Shri Alok Kumar Mukherjee who as per records died intestate.
6. The property would thus devolve according to the Hindu Succession Act, 1956. One of the consequences of the rule of succession laid down in Sec.8 of the Hindu Succession Act is that a HUF properly might not come into being on the death of a Hindu male, even if he dies intestate as his separate and self acquired property would devolve upon individual heirs in the prescribed proportion and not on a HUF constituted by his heirs as was the case before the coming into force of this Act.
7 . Since after partition, effected on 31/07/1963, the property under consideration had become the individual property of Shri Alok Kumar Mukherjee after his intestate death it devolved upon his heirs in their individual capacity.
8. During the course of assessment proceedings the assessee informed the Assessing Officer vide letter dated 19/12/2011 18 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
that Shri Avani Kumar Mukherjee died on 13/05/1983 and his wife Smt. Seerna Mukherjee and his two sons namely Alok Mukherjee and Aroop Mukherjee became the owners of this property, accordingly each of them was one third co- shares. Therefore, at the time of registering the document these co-owner signed in the capacity of one third share owners of this property.
9. Regarding the applicability of Sec.53A of TP Act, read with Sec,2(47)(v) of I.T. Act, it is observed that the object of section 53A of TPA was to safeguard the interest of the transferee and prevent fraud in cases of transfer when an Agreement to Sale was made but could not be registered. From the Income Tax point of view, cognizance of such transfers was taken by defining the receipts on such transfers as income u/s 2(47)(v) to be taxed as capital gains, to prevent defrauding the Department of due revenue in cases, where capital gains were earned but not disclosed on such transfers of property. In this particular case it is seen that neither Avani Kumar nor Alok Mukherjee had declared this income either in A.Y. 1976-77 pertinent to the receipts as per Sale Agreements, nor has it been shown on receipt of the balance payment in A.Y. 2004-05. There are no records to verify how this income which is now claimed to have accrued in A.Y. 1976-77, u/s 2(47)(v) was treated for tax purposes.
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ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
The assessee cannot violate the provisions of law of the I.T. Act, and simultaneously claim defense under its provisions. If he says that the transfers had been finalized in A.Y. 1976- 77 and 1981-82 as per the Agreement to Sale the receipts of the same should have been shown as per section 2(7)(v) as part of the income of Shri Avani Kumar Mukherjee in A.Y. 1981-82 and in A.Y. 1976-77. Necessary relief could have been sought after producing the records before the Department. However, this has not been done. Thus the assessee has failed to discharge its onus to support its claim that the income accrued u/s 2(47)(v) of I.T. Act in A.Y. 1976-77 and A.Y. 1981-82 as per these Sale Agreements. In short the assessee neither declared the Capital Gains in the year of Agreement of Sale i.e. A.Y. 1976-77 and 1981-82 nor when the Sale Deeds were Registered. Had income been declared in A.Y. 1976-77 and 1981-82 in the hands of Avani Kumar Mukherjee or Alok Mukherjee the validity of the Agreement to sale could have been considered. The onus was on the assessee to produce the necessary documents before the Department to show that it had declared its income U/s 2(47)(v) in the year of Agreement to Sale before the Department. It has failed to discharge its onus & so benefit of the section cannot be given to it in the year when the Sale Deed were registered and the fact of transfer came to the knowledge of the Department.
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ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
This view is supported by the observation of the Hon'ble SC in the case of Suraj Lamp & Industries (P) Ltd. in state of Haryana & 2011 STPL (web) 879 SC. Wherein it has been observed as follows:
"We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyance as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act."
Thus as clarified by the Hon'ble sc section 53A of TPA grants a limited privilege to the transferee to protect its right in case of unregistered Agreements to Sale. This privilege cannot be abused by the transferor to defraud the Income Tax Department of revenue.
Therefore, the submissions of the AR are not acceptable given the facts of the case and the law applicable to these facts. The Agreements to Sale pertaining to A.Y. 1976-77 & 1981-82 cannot be recognized u/s 2(47)(v) of I.T. Act, 1961 since income was not declared, nor conditions u/s 53A of TPA fulfilled in the case of first 4 properties. It is held that the transfer came into effect by the registered sale deeds in A.Y. 2004-05. Since the sale deeds were registered after 21 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
01/04/2003 the deeming provisions of section 50C are squarely applicable to this transfer as it came into effect from 01/04/2003.
ln view of the above facts of the case, and the law applicable to these facts discussed in detail above the said property sold to Mohan Joshi at Hathi Babu Ka Ahata, Kachchi Basti, Jaipur devolved upon Shri Alok Mukherjee in his individual capacity and one third, LTCG of Rs.21,26,580/- assessed in his hands on transfer of this property u/s 50C is upheld. The AO is directed to take into account the declared income of the assessee of Rs.81,945/- while determining the tax liability.
Regarding the LTCG with respect to the other four properties it is held that they belong to the HUF of Shri Alok Mukherjee and the capital gains of Rs.36,12,659/- on the transfer is to be added to the income of the HUF of Shri Alok Mukherjee and is to be added therein. Therefore, the addition of Rs.36,12,659/-is deleted."
6. Now the revenue and Alok Mukherjee are in appeals before us in ITA No. 887/JP/2012 & ITA No. 862/JP/2012, Late Seema Mukherjee through her legal heirs is in appeal in ITA No. 871/JP/2012, Satkori Charitable Trust in ITA No. 872/JP/2012 and revenue in ITA No. 888/JP/2012 are also in appeals before us. The appeal filed by Alok Mukherjee has raised six grounds. 22
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
Grounds No. 1,2 and 3 are against challenging the validity of issuance of notice U/s 148 of the Act, which has not been pressed by the assessee, therefore, the same are dismissed as not pressed. 6.1 Regarding grounds No. 4 to 6 of the appeal of Alok Mukherjee, the ld AR has submitted that Late Shri Avani Kumar Mukherjee, father of assessee (Alok Mukherjee) had sold 4 lands plots owned by minor son Alok Mukherjee in the A.Y. 1976-77 and one land and building owned by him in A.Y. 1981-82 by execution of sale agreements and handing over of possession in 1975 and 1980:
S. Name of the Owner of the Date of Date of Agreement No. Buyer and property Agreement of presenting of value Rs.
Address to executing Sale and the sale deed
Transferred Agreement Handing Over before
Property of sale the possession registration
by seller. authority by
buyer
a) Ramesh Jain, 5, Alok 09/08/1975 05/05/2003 12912/-
Hathi Babu Ka Mukherjee A.Y. 1976-77 A.Y. 2004-05
Bgh, Jaipur (Minor) (See Paper (See Paper
Book page No. Book page
13 to 14) No. 15 to 23)
b) Naresh Kumar Alok 28/05/1975 07/07/2003 12667/-
PUrohit (Second Mukherjee A.Y. 1976-77 A.Y. 2004-05
buyer from (Minor) (See Paper (See Paper
original buyer Book page No. Book page
Smt. Kusum 24 to 30) No. 31 to 36)
Devi) 10, Hathi
Babu Ka Bagh,
Jaipur.
23
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
c) Rajkumar Alok 01/12/1975 14/08/2003 6600/-
(Nominee of Mukherjee A.Y. 1976-77 A.Y. 2004-05
Shiv Ratan, (Minor) (See Paper (See Paper
original buyer), Book page No. Book page
2 Hathi Babu Ka 37 to 39) No. 40 to 45)
Bagh, Jaipur.
d) Mahaveer Alok -do- 14/08/2003 8680/-
Prasad Mukherjee A.Y. 2004-05
(Nominee of (minor) (See paper
Shihv Ratan, book page
Original buyer), No. 46 to 51)
2, Tahi Babu Ka
Bagh, Jaipur
e) Shri Mohan Late Shri 01/08/1980 31/03/2003 100000/-
Joshi (erstwhile Avani Kumar A.Y. 1981-82 A.Y. 2003-04
partner of M/s Mukherjee (See Paper (See Paper
Mahaveer Hotel, Book page No. Book Page
which bought 52 to 57) NO. 58 to 66)
the asset
originally),
Hathi Babu Ka
Ahata, Kachhi
Basti, Jaipur.
He further submitted that original buyers appearing in agreements had further transferred these capital assets to new parties in some of the cases and the registration has been done in the name of final buyers. Buyers/their subsequent buyers/legal nominees of these capital assets, had already built houses/commercial establishments on the impugned land plots and were occupying the properties and using electricity, water, civic amenities etc. enjoying full ownership rights at the time of registration of sale deed in Sub-24
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
Registrar office. Shri Alok Mukherjee (assessee) as seller in the case of Ramesh Jain, Naresh Kumar Purohit, Rajkumar and Mahaveer Prasad and Shri Alok Mukherjee, Shri Aroop Mukherjee and late Smt. Seema Kukherjee, legal heirs on the capacity of substituted executants, in pace of Late Shri Avani Kumar Mukherjee in the case of Mohan Joshi successor to M/s Mahaveer Hotel, original buyer had completed the registration formalities before the Sub-Registrar of Jaipur in these properties. The assessee had filed income tax return U/s 139(4) of the Act for A.Y. 2004-05 on 21/3/2005 in the office of ld Assessing Officer. In A.Y. 1976-77, Late Avani Kumar Mukherjee had sold three land plots bearing Nos. 2,5 and 10 located in Hathi Babu Ka Bagh, Station Road, Jaipur by executing agreements accompanied by handing over possession. Registration of these agreement was kept pending till the attainment of majority by Alok Kumar Mukherjee. Original buyer Smt. Kusum Devi of land plot No. 10 had further sold/transferred the plot to Mr. Naresh Kumar Purohit. Similarly, Shri Shiv Ratan. Buyer of plot No. 2, Hathi Babu Ka Bagh had further nominated/gifted the plot after division in two parts one in favour of Mahaveer Prasad and other to Raj Kumar.
Buyers/owners of these plots had built a house, got electricity/water connection on the sold land before registration of plots with Sub-Registrar.25
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
The ld Assessing Officer computed the long term capital gain by taking stamp value as sale consideration and indexed cost of FMV as on 01/4/1981.
Though the assessee had sold land plot only. But the value of subsequent construction by the buyers have also been wrongly considered by ld A.O. as part of sale consideration of assessee, for the purpose of working out capital gains. The ld CIT(A) had held the above properties belonging to Alok Mukherjee (HUF) and accordingly deleted the addition in the hands of individual, while upholding the same in hands of HUF.
6.2 The ld AR further submitted that Mahaveer Hotel, a partnership firm having Late Shri Ramrikh Joshi and his son Shri Mohan Joshi as partners, occupied this property, measuring 488.49 sq.m since 1959 as tenant. Late Shri Avani Kumar Mukherjee sold this property for Rs. 100000/- to Mahaveer Hotel by executing an agreement on 01/08/1980 Shri Avani Kumar Mukherjee expired before the registration and the registration of property was got done subsequently by the successors as substituted executants i.e. Smt. Seema Mukherjee, Shri Alok KMkherjee and Shri Aroop Mukherjee on 31/3/2003. On the buyer's side, Shri Ramrikh Joshi, one of the two partners also expired and on dissolution of the firm, Shri Mohan Joshi, son of Ramrikh Joshi, became sole owner of the capital asset. Sub-Registrar, Jaipur 26 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
valued the property land and hotel building for Rs. 68,88,625/- as on 31/3/2003 for the purpose of stamps. The ld Assessing Officer had computed the long term capital gain by taking Rs. 68,88,625/- as sale consideration and Rs. 5,08,884/- as indexed cost of the FMV as on 01/4/1981, working out Rs. 63,79,741/- as long term capital gain. Out of this Rs. 21,26,580/- (1/3rd share) was added to be relating to Shri Alok Mukherjee. The value of subsequent construction of hotel by the buyer after 01/8/1980 to 31/3/2003 has also been wrongly considered by ld A.O. as part of sale consideration of assessee, for the purpose of working out capital gains. 6.3 He further argued that the ld Assessing Officer had relied on the definitions under different laws and Apex Court judgment in the case of Suraj Lamps (supra) except the one given in Income tax law in his assessment order to hold that transfer had taken place in A.Y. 2004-05.The ld AR further reiterate the observations made by the Assessing Officer in his assessment order on Transfer of Property Act, 1882, Section 23 of the Indian Registration Act, 1908 and Rajasthan Stamp Duty Act, 1998, the ld Assessing Officer heavily relied on the Hon'ble Apex Court decision in the case of Suraj Lapms and Industries Pvt. Ltd. Vs. State of Haryana (supra) wherein it has been held that immovable property can be legally and lawfully 27 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
transferred/conveyed only by a registered deed or conveyance. The assessee had submitted before the Assessing Officer on 19/12/2011 that property referred by him for computation of long term capital gain had already been transferred in terms of Section 2(47) during A.Y. 1976-77 and 1981-82, therefore, these cannot be treated as transfer for capital gains in A.Y. 2004-
05. Similar arguments were made by the AR of the assessee before the ld CIT(A) on 24/08/2012 during the appellant proceedings. He further argued that the ld Assessing Officer simply brushed aside the submissions of assessee to consider definition U/s 2(47), in his 16 page assessment order and did not make any comment/opinion of the definition under Income Tax Act. The ld Assessing Officer extensively quoted the definitions under T.P. Act, 1882, Registration Act, 1908 and Rajasthan Stamp Act, 1998. Further he placed reliance on the decision of Hon'ble Supreme Court in the case of Suraj Lamps (supra) and held that transfer had taken place at the time of registration only and not earlier.
6.4 He further argued that the ld CIT(A) had discussed the definition U/s 2(47)(v) of the Act. However, the ld CIT(A) took a turn that those owners i.e. Shri Alok Mukherjee and Late Shri Avani Kumar Mukherjee might had not disclosed any capital gain in the ITRs of 1976-77 and 1981-82, therefore the 28 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
transfer would be deemed for A.Y. 2004-05 and capital gain tax would be payable now as the same was not paid earlier. The presumption of the ld CIT(A) is unilateral, therefore, he further relied on the decision of Hon'ble Supreme Court in the case of Suraj Lapms (supra) and justified the transfer in A.Y. 2004-05 in contrast to the definition U/s 2(47). It is contrary to the provisions of Income Tax law as per Section 45 of the Act, any capital gain is to be computed in the previous year, in which the transfer giving rise to the accrual of the capital gain in question took place. He further relied on the decision in the case of CIT Vs. Vimal Chand Surana (2004) 269 ITR 288, 289 (Raj.) on transfer of agreement to sell and capital gain. He has further drawn our attention on Section 2(47) of the Act and argued that all the transactions are covered U/s 2(47) of the Act. The agreement in 1975 with Sh./Shri Ramesh Jain, Naresh Kumar Purohit, Rajkumar and Mahaveer Prasad and dated 01/08/1980 Mahaveer Hotel through its partner Shri Mohan Joshi were admittedly contracts in writing executed by late Shri Avani Kumar Mukherjee for the consideration and in pursuance of such agreement, the buyers have been placed in possession of the property, therefore, part performance as per Section 53A of the T.P. Act has been satisfied in the present case. Therefore, property as deemed to have been transferred within the meaning 29 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
of Section 2(47)(v) of the Act. Mere deferring part of the consideration till the registration under the Registration Act, 1908 would not affect the accrual of capital gain in any manner. A seller may accommodate the buyer by giving credit, but revenue would not wait for collection of tax from the seller on capital gains till receipt of consideration by the seller. In Jasbir Singh Sarkaria (2007) 294 ITR 196 (AAR), the authority for advance ruling ruled that taxability of capital gain cannot be postponed till the receipt of final consideration. The Hon'ble ITAT Ahmedabad Bench in the case of Amit Kumar Ambalal Shah Vs. ITO A.Y. 2009-10 in ITA No. 1281/Ahd/2013 order dated 30/10/2014 has considered the Hon'ble Supreme Court decision of Suraj Lamps (supra) wherein the Hon'ble Supreme Court has made it clear that judgment itself not applicable on old cases of appellant and also this decision is not to apply on bonafide genuine transactions.. He further relied on the decision in the case of Sandhyaben Vs. ITO (2013) 35 taxmann.com 472 (Ahd Trib) order dated 08/02/2013 wherein the Hon'ble Bench has held that capital gain is to be taxed in the A.Y. 2002-03 when the consideration was received and possession was given in line with the Section 2(47)(v) and not in A.Y. 2004-05 when the sale deed was presented before Sub-Registrar for registration. Suraj Lamps decision of Hon'ble Apex Court was delivered in 30 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
different context and income tax provisions were not adjudicated upon, therefore, the Hon'ble ITAT directed to assess the capital gain for A.Y. 2002- 03 U/s 150 of the Act. He has further drawn our attention of the decision of Hon'ble Supreme Court in the case of CIT Vs. Sun Engineering Works (P) Ltd. (1992) 198 ITR 297 on how to interpret the ruling of the decision of Hon'ble Apex Court. In case of Sanjeev Lal & Anr. Vs. CIT & Anr. (2014) 365 ITR 389 (SC) the Hon'ble Supreme Court has considered the issue of transfer U/s 2(47), which is squarely applicable in the case of assessee. He further relied on the following case laws:-
(i) CIT Vs. Hormasji Vaid 250 ITR 542. (ii) CIT Vs. Rajasthan Mirror Mfg. Co. (2002) 125 Taxman 1.
(iii) CIT Vs. Vishnu trading & Investment Co. (2003) 128 Taxman
777. 6.5 The ld AR further argued that Section 50C is not applicable in the case of assessee as this section brought in the statute w.e.f. A.Y. 2003-04 is aimed to substitute the valuation assessed by the Sub-Registrar in the case the consideration received by assessee is lesser that such valuation and transfer on the basis of agreement to sell is covered w.e.f. 01/10/2009 by extending the words assessed or assessable. The ld Assessing Officer 31 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
substituted the consideration at Rs. 36,12,659/- in place of actual consideration of Rs. 40,859/- in the case of Ramesh Jain, Naresh Kumar Purohit, Rajkumar and Mahaveer Prasad and Rs. 68,88,625/- in place of actual consideration of Rs. 100000/- in the case of Mohan Joshi. These agreement were made prior to insertion of section 50C in the statute, therefore, Section 50C is not applicable on these transactions made on agreement to sell, for which he relied on the following decisions:
(i) Navneet Thakkar Vs. ITO (2008) 110 ITD 525/(2007) 112 TTJ 76 (Jodh).
(ii) M. Siva Parvathi & Ors. Vs. ITO (2010) 7 ITR (Trib) 468 (Visakha).
(iii) CIT-1, Coimbatore Vs. R.Sugantha Ravindran 352 ITR 488 (Madras)
(iv) Rajshree Bihani Vs. ITO, Ward 36(1), Kolkata (2011) 48 SOT 594/16 Taxmann.com 44 (Kol).
The Hon'ble Coordinate Bench had decided that amendment made in Section 50C by inserting work 'assessable' in addition to 'adopted' or 'assessed' w.e.f. 01/10/2009. It is further argued that date of registration in case of Mohan Joshi i.e. property situated at Hathi Babu Ka Ahata, Jaipur (Item No. 5) was wrongly assessed in A.Y. 2004-05 whereas the transfer was executed on 31/3/2003. The ld CIT(A) has confirmed that this capital gain in A.Y. 2004-05 on the basis of stamp duty was paid on 2/4/2003 and copy of registry was 32 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
collected on 02/4/2003. The ld AR argued that as per Section 47 of the Registration Act, a registered document shall operate from the time from which, it could have commenced to operate if no registration thereof had been required or made and not from the time of its registration. Therefore, the ld CIT(A) was not justified the assessability of year i.e. A.Y. 2004-05. Accordingly he prayed to delete the addition confirmed by the ld CIT(A).
7. At the outset, the ld DR has vehemently supported the order of the Assessing Officer. However on appeal filed by the revenue on status of HUF with respect to property shows at sr. No. 1 to 4 i.e. plot No. 5, plot No. 10, plot NO. 2 and again plot No. 2 has argued that the assessee has not challenged the assessment in the hands of individual and no appeals have been filed by the assessee against the status decided HUF by the ld CIT(A). Therefore, the same is to be assessed under the status individual as the properties were sold by Shri Alok Mukherjee in individual capacity, which is evident from the registered documents and claimed by the assessee as own property. There is no reference of HUF in any document and assessee also had not claimed any where before any authority that these properties were belonged to HUF. Therefore, the ld DR argued that the status of this 33 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
assessability of capital gain is to be taxed as individual not HUF. The ld AR of the assessee has not objected about the status.
8. We have heard the rival contentions of both the parties and perused the material available on the record. The assessee has challenged the jurisdiction of the Assessing Officer on the ground that the provisions of Section 2(47)(v) of the Act is applicable on this transfer, Section 50C is not applicable on this transaction and year of assessability is A.Y. 2003-04 and not for A.Y. 2004-05. The assessee made five transactions as mentioned by the Assessing Officer in his assessment order. The first property is plot No. 5, Baibhav Nagar, Hathi Babu Ka Bagh, Station Road Jaipur. The assessee claimed that the transfer took place on 09/08/1975 by Late shri Avani Kumar Mukherjee father of Shri Alok Mukherjee in the capacity of guardian as Alok Mukherjee was minor on 09/8/1975. The second party was Shri Ramesh Jain. The total area disclosed in the alleged agreement to sell at 269 sq.yard with consideration of Rs. 12,912/-. The father of the assessee received advance of Rs. 6,456/- i.e. 50% of the sale consideration and remaining amount of Rs. 6456/- was to be paid at the time of registry. It has been mentioned in the sale agreement that minorship would be completed on 11th February, 1977. The attainment of majority would be informed to the second party thereafter 34 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
immediately the registry of the said property would be made by paying remaining amount otherwise the advance given by the purchaser would be seized and agreement to sell would be treated as cancelled. If the assessee Alok Kumar Mukherjee after attaining the majority refused to sell this land to the second party, the second party has right to refund the advance money and cost of construction of house from the first party. As per item No. 4 of this agreement whatever construction would be pertained to the second party and there will be no additional amount would be paid for construction. The second party has taken over the possession of the property as per agreement to sell. On verification of the registration deed dated 05th May, 2003 made between Shri Alok Mukherjee and Shri Ramesh jain, it is revealed that the assessee got Rs. 6,456/- on this date from the purchaser and Shri Alok Mukherjee received it. The purchaser rightfully got the possession on land as well as construction thereon on the date of registration i.e. on 05/5/2003. The stamp authority has calculated the stamp value of this property at Rs. 10,81,961/-. Shri Alok Mukherjee has transferred this property in capacity of individual.
8.1 The second property i.e. plot No. 10 Hathi Babu Ka Bagh has claimed by the assessee was transferred on 25/08/1975 by Shri Late Avani Kumar 35 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
Mukherjee as a guardian on behalf of Alok Kumar Mukherjee (minor) to Smt. KUsum Devi, W/o- Madan Lal, the area is 318.5 sq.yard for Rs. 25,880/-. The father of the assessee had received Rs. 11,000/- as advance. Remaining amount of Rs. 14,480/- would be paid at the time of registry. Any legal expenses on trespassers would be borne by the first party. The remaining conditions were same that about attainment of majority information thereof, the remaining amount paid and registry is to be made and permission of cancellation of agreement as given for property No. 5. This plot was subsequently sold on 20/1/1988 by purchaser Smt. Kusum Devi to Shri Umesh Chandra Purohit including construction thereon for consideration of Rs. 38,000/-. This agreement shows that she purchased this plot from Shri Avani Kumar Mukherjee for Rs. 25,480/- paid Rs. 1100/- to him and got possession on it. She got constructed boundary on it and also on 25/1/1985 Rs. 2000/- was paid to Shri Alok Kumar Mukherjee and remaining amount has been shown at Rs. 12,480/-. Smt. Kusum Devi received Rs. 25,520/- out of total consideration of Rs. 38,000/- at the time of agreement and it was decided that remaining amount of Rs. 12,480/- would be paid at the time of registry to the original owner i.e. Shri Alok Kumar Mukherjee. Finally the registry of this plot was got on 07th July, 2003 by Shri Alok Kumar Mukherjee 36 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
in the capacity of individual in the name of Shri Naresh Kumar Purohit, son of Shri Panna Lal Purohit. There was a reference in this registration deed about the partition order dated 30/05/1963, the minority of the assessee but no reference has been made on agreement to sell dated 28/8/1975 made with Smt. Kusum Devi whereas she had made agreement to sale on 20/01/1988 with Shri Umeshchand Purohit in the registry made in the name of Naresh Kumar Purohit as purchaser (second party) and claimed in this agreement for registry that his father was made agreement to sale with the second party i.e. Naresh Kumar Purohit. However, on examination of alleged agreement to sell, Smt. Kusum Devi was second party. Thereafter the agreement to sell had made between Smt. Kusum Devi to Umesh Chand Purohit, therefore, there is no connection with the purchaser from the original agreement to sell dated 28/8/1975. The outstanding amount received as per registry deed dated 07th July, 2003 at Rs. 12,667/- whereas outstanding consideration as per original alleged agreement to sell was Rs. 14,480/-. The stamp authority has calculated the stamp value of this property at Rs. 7,37,875/-. 8.2 The third property i.e. plot No. 2, Hathi Babu Ka Bagh, Station Road Jaipur was claimed to be transferred on agreement to sell on 01/12/1975 by Shri Avani Kumar Mukherjee father of the assessee Alok Kumar Mukherjee as 37 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
a guardian in the name of Shri Shiv Ratan, son of Shri Ram Chandra. The area of the property was 382 sq.yard and consideration was at Rs. 15,280/-. Father of the assessee received Rs. 7,640/- as advance. The remaining amount of Rs. 7,640/- was to be paid at the time of registry. The remaining terms and conditions of the alleged agreement to sell were same as given for the property No. 5 and 10 but it was stated that this property was owned by Shri Alok Kumar Mukherjee through decree No. 16 of Senior Civil Judge, Court No. 1 on 31/7/1973. These properties were got registered through deed dated 14/8/2003 by Shri Alok Kumar Mujherjee (Seller) to Shri Rajkumar, son of Shri Mahaveer Prasad wherein decree No. 11/63 dated 30/05/1969 has been referred but there is no mentioned about the decree mentioned in alleged agreement to sell dated 31/7/1973 in deed of registration. The registry was made by the assessee in the name of Shri Raj Kumar and Shri Shiv Ratan alleged purchaser as per agreement to sell dated 01/12/1975 has been shows as brother of the purchaser i.e. Shri Rajkumar. The outstanding amount was received by the assessee Rs. 7,640/- from the purchaser at the time of registry. It was further mentioned in its page No. 3 of the registry deed that whereas this remaining consideration has been shown Rs. 6600/- on page No. 4 of the same registry deed and real 38 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
ownership has been given on the date of registry to Shri Rajkumar as per this deed. The stamp authority has calculated the stamp value of this property at Rs. 8,02,627/-.
8.3 The another registry of this plot was made by the assessee in the name of Shri Mahaveer Prasad, son of Shri Ram Chandraji vide agreement dated 14/8/2003. The area has been same and stamp value assessed by the stamp authority at Rs. 9, 90,196/-. The area mentioned in the deed of registry at same purchase namely Shri Mahaveer Prasad has been shown natural brother of Shiv Ratan. The remaining consideration against the alleged agreement to sell dated 01/12/1975 has been shown at Rs. 7640/- whereas on page No. 4 of conveyance remaining consideration has been shown at Rs. 8680/-. The assessee has claimed at the time of deed that he is sole owner of this plot and now as per this deed he transferred this plot to Shri Mahaveer Prasad and handed over the possession on it at the time of registration.
8.4 The property situated at Hathi Babu Ka Ahata, Kachhi Basti, jaipur was alleged to be sold through the agreement to sell dated 01/8/1980 by the father of the assessee Shri Avani Kumar Mukherjee on 1st Sept. 1980 to Mahaveer Hotel through its partner Ram Rikh Joshi and Mohan Lal Joshi. The 39 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
second party was enjoying position as tenant since 1959 on a rent of Rs. 165 per month, which was subsequently increased to Rs. 330 per month w.e.f. 01/1/1980. Shri Avani Kumar Mukherjee has made a agreement to sell for said property including land, building, fixture thereon alongwith marketable title thereof to the party of the second part for a consideration of Rs. 1 lac. Rs. 30,000/- was received as advance towards the said price from the party of the second part on execution of the indenture. In terms and conditions in clause (b) of this agreement it was stated that the party of the first part shall within 12 months from the date of this indenture shall execute and register the sale deed of the said property alongwith marketable title and all necessary rights of ownership in favour of the party of the second part before the Sub-Registrar, Jaipur and shall receive the balance price of Rs. 70,000/- from the party of second part at the time of the execution and registration of the said sale deed before Sub-Registrar, Jaipur. As per clause
(d) of this alleged agreement to sell the party of the first part shall not charge or receive any rent from the party of the second part on the said property of which he is a tenant on and from the execution of this indenture. The first party had allowed to the second party to use said property for their hotel business or otherwise. As per clause (g) of this agreement to sell if any 40 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
defect arises in transfer of this property, the first party would refund advance of Rs. 30,000/- and he is entitled to receive rent @ 330 per month. As per item No. (i) the party of first part shall defend at his own cost all or any proceedings pertaining or relating to said property. As per item (j) the party of first part shall not be entitled to evict the party of the second part from the said property save and except for subletting the premises to any other person or persons.
8.5 This property got transferred through registered deed dated 31/3/2003 by Smt. Seema Mukherjee, Alok Mukherjee and Aroop Mukherjee to Mohan Joshi. As per this deed, the first party owned this ancestral immovable property through partition decree No. 11/1963 dated 31/7/1963 by which it came exclusively share and possession of his late father Shri Avani Kumar Mukherjee. Thereafter this property was transferred as per Hindu Succession Act in the name of first party i.e. Seema Mukherjee, Alok Mukherjee and Aroop Kumar Mukherjee. The area has been shown as 477.29 sq.mt. comprising of 16 rooms, five toilets in agreement to sell. However, in deed of registration, the area has been shown 488.49 sq.mt. This premises was given on rent to the purchaser. As per registered deed, the total consideration already taken by the seller had been shown at Rs. 50,000/- 41
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
(30,000 + 20,000), however, in the alleged agreement to sell, it was Rs. 30,000/- only. As per this deed, remaining amount has been received by the first party at Rs. 50,000/- at the time of registry. 8.6 On the basis of alleged agreement to sell and deed of registration, it is proved that alleged agreement to sell are different. Even alleged agreement to sell is presumed to be genuine as per the terms and conditions, the alleged agreement to sell is not existed on the date of registry. As both the parties have not performed terms and conditions of the alleged agreement to sell in prescribed time and prescribed manner. Therefore, it is a breach of contract. Even area as well as remaining consideration are not matching in the alleged agreement to sell and deed of registry of various dates. Therefore, sale consideration considered by the ld Assessing Officer for the purposes of computation of capital gain as per Section 50C is rightly assessed. Section 50C inserted by the Finance Act, 2000 w.e.f. 01/4/2003, therefore, same is squarely applicable on the transfer made during the financial year 2003-04 relevant to A.Y. 2004-05. The assessee claimed that these properties were covered U/s 2(47)(v) of the Act does not stand to support the assessee's case wherein number of discrepancies were noted above, as such alleged agreement to sale cannot be enforced by the court of 42 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
law as time and manner prescribed in these alleged agreement to sell has much before and not followed by both the parties expired. The ld Assessing Officer has taken the consideration on the basis of deed U/s 50C, therefore, whatever construction was made on these lands were treated by him as belonged to assessee at the time of transfer as no documentary evidences were submitted by the assessee at the time of assessment that these lands has been got transferred on the basis of alleged agreement to sell in different year to different persons and they constructed building thereon. If these facts were correct, the purchaser might have filing income tax return and also paying the municipal tax and might have installed telephone/electricity connection on it but no evidences were produced before the Assessing Officer. Further in the property No. 5 i.e. Hathi Babu Ka Ahata, Kachhi Basti, Jaipur was given by the assessee's father on rent, which was continued upto registry of this property i.e. up to 31/3/2003. The assessee also challenged the assessability of this property No. 5, Hathi Babu Ka Ahata, Kachhi Basti, jaipur on the ground of assessability year but on verification of the record it was found that remaining stamp duty was paid by the assessee on 02/4/2003. In case of Raj Rani Devi Ramna Vs. CIT 201 ITR 1032 (Pat), it has been held that the parties had clearly intended that desired execution 43 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
and registration of sale deed, transfer by way of the sale would become effective only on payment of entire sale consideration and in this background of fact it had to be held that there was no transfer of land covered by the three sale deeds in question during the period under consideration making the assessee liable for capital gain tax U/s 45. As per registered deed, the assessee got Rs. 50,000/- at the time of registry before Sub-Registrar, Jaipur who has signed the registry on 02/4/2003. Therefore, the assessee got consideration as per terms and agreement of the registered deed on 02/4/2003. Accordingly, the assessability of this capital gain on account of transfer of this property is liable to be assessed in A.Y. 2004-05. The case law relied by the ld AR is not squarely applicable. The ld CIT(A) was wrong in deciding the assessment of four parties under the head HUF as argued by the ld DR, these properties were sold in the capacity of individual and the assessee had claimed status as individual. No where it has been claimed that these properties were belonged to HUF, therefore, the status of assessability of these four immovable properties referred by the ld CIT(A) is to be held assessable in the capacity of individual not HUF. Further only one witness has been signed on alleged agreement to sell dated 09/8/1975 of property at Hathi Babu Ka Bagh, Jaipur and transferer written in the agreement as Avani 44 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
Kumar Mukherjee, son of Shri Satkori Mukherjee whereas singed by 'Athak Kumar Mukherjee'. There is no witness on alleged agreement to sell dated 28/8/1975 to property but no address of the property and transferer written in the agreement as Avani Kumar Mukherjee, son of Shri Satkori Mukherjee whereas singed by 'Athak Kumar Mukherjee'. In both the alleged agreements to sell singed by Athak Kumar Mukherjee. The assessees have not produced any evidence that these transactions have been disclosed by the assessees at the time of alleged agreement to sell in respective years in their respective income tax returns. Accordingly, the assessee's appeal is dismissed and revenue's appeal is allowed.
9. ITA No. 871/JP/2012 A.Y. 2004-05 Late Smt. Seema Mukherjee through L/H Shri Alok Mukherjee & Sh. Aroop Mukherjee Vs. ITO Ward 3(2), Jaipur.
This is assessee's appeal filed against the order dated 18/09/2012 passed by the ld CIT(A)-I, Jaipur for A.Y. 2004-05. Respective grounds of appeal are as under:-
"1. That the ld. CIT(A) has erred by confirming the action of Assessing Officer who did not have the valid jurisdiction to make re-assessment U/s 147 as notices U/s 148 were not issued and served on all the legal heirs of the deceased assessee and the assessment order of their present legal heirs.45
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
2. That the Assessing Officer did not have the valid jurisdiction to make re-assessment U/s 147 as the Service of the notice U/s 148 issued on 31/3/2011 and served on 31/3/2011 itself by way of 'affixture', in spite of presence of the legal heirs of the deceased assessee, was invalid ab-inito.
3. That the ld CIT(A) erred by upholding the assessment order, as the assessee was not applied the 'reasons recorded for reopening the assessment' despite requests by the assessee during the assessment proceedings, after getting the assessment order and even during appellant proceedings, before the CIT(A).
4. That the ld. CIT(A) has erred by confirming the action of Assessing Officer of assessing 'Capital Gains' in A.Y. 2004-05 by ignoring the basic fact that 'Transfer of Capital Asset' had already completed, in terms of Section 2(47)(v), 2(47)(vi) and explanation 2 to the Section 2(47), in the relevant assessment years i.e. 1981-82 itself, when the agreement to sale was executed, accompanied with handing over of physical possession of Capital Asset.
5. That the ld. CIT(A) has erred in upholding the action of A.O. by ignoring the law that Section 50C came on the Statute w.e.f. 01/4/2003 and the transactions through 'Agreement to sell' or 'Power of Attorney' came in the enlarged scope of Section 50C(1) w.e.f. 01/10/2009 whereas the Capital Assets of the assessee were transferred by way of agreement from assessment year 1976-77 to 1988-89 itself and purchaser has made construction on it and enjoying the property since then.46
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
6. Without prejudice to above grounds, the appellant submits that the ld CIT(A) has erred in upholding the action of A.O. who has wrongly initiated proceedings for assessment year 2004-05, as sale deed in question was not registered in the said assessment year. The relevant sale deed i.e. Mohan Joshi was executed, presented and registered before Registration Authority on 31/3/2003 i.e. assessment year 2003-04. Hence the whole proceedings for assessing capital gains is void ab- inito for the sale deed in favour of Mohan Joshi.
10. Regarding transfer of property at 56, Hathi Babu Ka Bagh, Station Road, Jaipur, which was sold on 22/5/2003 at Rs. 8,90,437/-. In this case also, the case was reopened by the Assessing Officer on both the properties long term capital gain which has not been disclosed by her. Thereafter a detailed questionnaire was issued by the Assessing Officer and after considering the assessee's reply, the long term capital gain of property at Hathi Babu Ka Ahata, Kachhi Basti, Jaipur was assessed at 1/3rd share of assessee at Rs. 21,26,580/- and capital gain on 56, Hathi Babu Ka Bagh, Station Road Jaipur was at Rs. 8,90,437/- which was challenged by the assessee before the ld CIT(A), who had confirmed the addition by holding that reopening U/s 148 is legal and year of assessability is 2004-05, 50C is applicable and Section 2(47) is not applicable in the case of property registered during the F.Y. 2003-04 relevant to assessment year 2004-05. The assessee has challenged before us. Ground No. 1 to 3 which pertains to 47 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
reopening U/s 148 of the Act and same have not been pressed by the assessee. Thus, the same are dismissed as not pressed. 10.1 Ground No. 4 of the appeal is on transfer U/s 2(47)(v), ground No. 5 is against applicability of Section 50C(1) and ground No. 6 is for year of assessability, for which we have already expressed our view in case of Alok Mukherjee, same findings are applicable here. Therefore, we dismiss the assessee's appeal.
11. ITA No. 888/JP/2012 for A.Y. 2004-05 ITO, Ward 3(2), Jaipur Vs. Aroop Mukherjee (HUF) This is an appeal filed by the revenue against the order dated 12/09/2012 passed by the ld CIT(A)-I, Jaipur for A.Y. 2004-05. The sole ground of appeal is reproduced hereunder:-
"Whether on the facts and in the circumstances of the case and in law the ld CIT(A) is justified in deleting the addition of long term capital gain for Rs. 21,26,580/- in the hands of HUF."
11.1 The revenue's appeal is against deleting the addition of long term capital gain of Rs. 21,26,580/- in the hands of HUF. The ld Assessing Officer observed that the assessee HUF sold property situated at Hathi Babu Ka Ahata, Kachhi Basti, Jaipur on 19/12/2003 for Rs. 68,88,625/-. The assessee had not disclosed long term capital gain for the taxation purpose during the 48 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
assessment year 2004-05. After recording the reasons he reopened the case and a questionnaire was also issued, opportunities were also provided. After considering the assessee's reply, the ld Assessing Officer assessed as protective 1/3rd share of assessee HUF at Rs. 21,26,580/- and substantive in case of Aroop Mukherjee (Individual) similar to co-owner late Smt. Seema Mukherjee and Shri Alok Mukherjee.
11.2 The assessee challenged this issue before the ld CIT(A), who had deleted the addition in the hands of HUF by observing that this property was belonging to the individual Shri Aroop Mukherjee. The assessee HUF challenged before the ld CIT(A) that the reopening U/s 148, the assessability in HUF, years of assessability, invoking provisions of Section 50C and transfer U/s 2(47), which has been decided by the ld CIT(A) in favour of the assessee.
11.3 The revenue challenged the deleting the status of HUF and considered this capital gain as individual, therefore, assessability in the hands of individual, we have already decided this issue in the hands of Alok Mukherjee and Late Smt. Seema Mukherjee (Individual) as Shri Aroop Mukherjee has 1/3rd share in this property. The same findings are applicable here and 49 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
accordingly, we dismiss the revenue's appeal. It is informed that no appeal has been filed in case of Shri Aroop Mukherjee (Individual) for A.Y. 2004-05.
12. ITA No. 872/JP/2012 for A.Y. 2004-05 Satkori Mukherjee Charitable Trust Vs. ITO, Ward 3(2), Jaipur.
This is an assessee's appeal filed against the order dated 11/09/2012 passed by the ld CIT(A)-I, Jaipur for A.Y. 2004-05. Respective grounds of appeal are reproduced as under:-
"1. That the Assessing Officer did not have the valid jurisdiction to make re-assessment U/s 147 as the Service of the notice U/s 148 issued on 31/3/2011 and served on 31/3/2011 itself by way of 'affixture', in spite of presence of the assessee for accepting the notice, was invalid ab-inito.
2. That the ld CIT(A) has erred by confirming the action of the Assessing Officer for not providing the 'Reasons to believe for escapement' either with the notice/assessment order or despite the subsequent written request of assessee and therefore the re-opening proceedings are invalid U/s 147/148.
3. That the ld CIT(A) erred by confirming the action of Assessing Officer of assessing 'Capital Gains' in A.Y. 2004-05 by ignoring the basic fact that 'Transfer' of Capital Asset had already completed, in terms of Section 2(47)(v), 2(47)(vi) and explanation 2 to the section 2(47), in the relevant assessment years i.e. 2000-01 itself, when the agreement to sale was executed accompanied with handing over of the physical possession of capital asset and purchaser had enjoying said property for his business purposes since than.50
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
4. That the ld. CIT(A) has erred in upholding the action of A.O. by ignoring the law that Section 50C came on the Statute w.e.f. 01/4/2003 and the transactions through 'Agreement to sell' or 'Power of Attorney' came in the enlarged scope of Section 50C(1) w.e.f. 01/10/2009 whereas the Capital Assets of the assessee were transferred by way of agreement from assessment year 2000-01 itself.
5. That the ld CIT(A) erred in upholding the action of A.O. by ignoring the law that Section 50C is not applicable for property held under trust for charitable purposes which is liable to be assessed U/s 11(1A) of the Act and not under Chapter IV of the Income Tax Act, 1961."
12.1 The Trust had sold two properties one on 24/10/2003 situated at Hathi Babu Ka Ahata, which was valued by the registering authority at Rs. 40,55,303/- and property situated at 327, Hathi Babu Ka Bagh, Jaipur on 29/10/2003, which was valued by the registering authority at Rs. 40,55,330/- . The ld Assessing Officer also reopened the assessee's case U/s 148 of the Act and thereafter detailed questionnaire was issued to the assessee. After considering the FMV as on 01/4/1981 the ld Assessing Officer computed the capital gain in the hands of Trust at Rs. 77,81,718/- i.e. capital gain at plot No. 327, Hathi Babu Ka Bagh, Jaipur (1/2nd share) at Rs. 38,90,859 and plot No. 327, Hathi Babu Ka Bagh, Jaipur (1/2nd share) at Rs. 38,90,859/-. 51
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
12.2 The assessee Trust challenged this issue before the ld CIT(A) on the ground of reopening U/s 148 of the Act, application of Section 50C and transfer U/s 2(47)(v) and adopting the FMV as on 01/4/1981. The ld CIT(A) has dismissed the assessee's appeal on all the grounds and held the Assessing Officer's assessment as valid assessment. 12.3 Now the assessee Trust is before us and it has challenged the reopening U/s 148 on ground No. 1 and 2 of the appeal, which have not been pressed by the assessee, therefore, the same are dismissed as not pressed. Ground No. 3 is for challenging for not considering the transfer U/s 2(47)(v)(vi) of the Act and ground No. 4 is application of Section 50C, which has been decided by this Bench in detail in the case of Alok Mukherjee. The facts and circumstances are identical, therefore, our view are same as given in the order of Alok Mukherjee (Individual), which is squarely applicable in this case. Therefore, we dismiss the assessee's appeal on this ground. 12.4 Ground No. 5 of the appeal is against upholding the action of Assessing Officer that property is assessable under Chapter 4(iv) of the Act, which is liable to be assessed U/s 11(1a) of the Act. On verification of the assessment order, the assessee has not raised this issue during the course of 52 ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
assessment proceedings, which was also not challenged before the ld CIT(A) as evident from the form NO. 35. Now the assessee raised this issue before the ITAT, which is not a technical issue and can be raised before the ITAT. For ready reference Section 11(1A) is reproduced as under:-
11 (1) subject to the provisions of sections 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income--
(a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India ; and, where any such income is accumulated or set apart for application to such purposes in India, to the extent to which the income so accumulated or set apart is not in excess of fifteen per cent.
of the income from such property;
The assessee claimed that registration of this Trust has been granted by the department U/s 12A. During the course of hearing the ld AR has drawn our attention on paper book page No. 63 and claimed that the assessee Trust got registration U/s 12A of the Act on 11/8/1989 from 30/5/1989 and exemption U/s 80G had also been granted for the period of 01/4/1990 to 31/3/1993. Thereafter no registration was extended by the CIT concerned even the assessee has no evidence that he had applied for extension of registration U/s 12A of the Act. The alleged agreement to sell was made by the Trust on 10/3/2000 for Rs. 4.5 lacs with Shri Navin Kumar. 53
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
12.5 The assessee claimed benefit of Section 11 but it has to be registered Trust and property is to be held wholly for the charitable and religious purpose thereafter benefit of Section 11(1a) can be availed by the assessee as such this issue was not raised before the lower authority and assessee has not produced any evidence regarding the application of capital gain for the religious or charitable purpose by obtaining registration U/s 12A of the Act from the competent authority, therefore, this ground of appeal is dismissed. Accordingly, the assessee's appeal on all grounds is dismissed.
13. In the result all the assessee's appeals as well as the revenue are dismissed except revenue's appeal being ITA No. 887/JP/2012 is allowed. Order pronounced in the open court on 21/10/2015.
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(R.P.Tolani) (T.R. Meena)
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vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellants-(i) Shri Alok Mukherjee (Individual), Jaipur.54
ITA No. 887, 862, 871, 888 & 872/JP/2012.
ITO Vs. Alok Mukherjee & Ors cases.
(ii) Late Smt. Seema Mukherjee through L/H Shri Alok Mukherjee & Sh. Aroop Mukherjee, Jaipur.
(iii) Aroop Mukherjee (HUF), Jaipur.
(iv) Satkori Mukherjee Charitable Trust, Jaipur.
2. izR;FkhZ@ The Respondent- The Income Tax Officer, Ward 3(2), Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 887, 862, 871, 888 & 872/JP/2012) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar