Income Tax Appellate Tribunal - Jaipur
Mukesh Kumar Agarwal, Alwar vs Ito, Alwar on 30 May, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA. No. 781/JP/2013
fu/kZkj.k o"kZ@Assessment Years : 2008-09
Sh. Mukesh Kumar Agarwal, cuke ITO,
96, Lajpat Nagar, Alwar Vs. Ward-1-(4) Alwar
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACDPA9407C
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA. No. 782/JP/2013
fu/kZkj.k o"kZ@Assessment Years : 2008-09
Sh. Yash Agarwal cuke ITO,
S/o Mukesh Kumar Agarwal, Vs. Ward-1-(4) Alwar
96, Lajpat Nagar, Alwar
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ALKPA1018K
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj l@
s Assessee by : None (Written submissions)
jktLo dh vksj ls@ Revenue by : Shri Anup Singh (Addl.CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 30/05/2018
mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 04/06/2018
vkns'k@ ORDER
PER BENCH:
These are appeals filed by the respective assessees against the order of ld. CIT(A), Alwar dated 08.8.2013 for A.Y. 2008-09 and dated 2 ITA. No. 781 & 782/JP/2013 Sh. Mukesh Kumar Agarwal, Alwar & Sh. Yash Agarwal, Alwar vs. ITO, Alwar 12.08.2013 for A.Y 2008-09 respectively. These appeals were earlier disposed off by the Co-ordinate Bench vide its consolidated order dated 18.11.2015 and thereafter, the said order has been recalled vide Co-
ordinate Bench's decision dated 30.01.2018 in MA No. 80/JP/2017 and MA No. 81/JP/2017. Hence, these appeals have come up for hearing before us. The grounds of appeal taken in the respective appeals are as under:
Assessee's ground of appeal (ITA No. 781/JP/13):
"That on the facts and in the circumstances of the case, the learned ITO was wrong and unjustified in determining the long term capital gain at Rs. 5,02,270/- as against Rs. 1,41,167/- declared by the assessee & the learned CIT(A) was also wrong and unjustified in sustaining the addition of Rs. 3,61,103/-.
Assessee's ground of appeal (ITA No. 782/JP/13) "That on the facts and in the circumstances of the case, the learned ITO was wrong and unjustified in determining the long term capital gain of Rs. 5,02,270/- as against Rs. 1,41,167/- declared by the assessee & the learned CIT(A) was also wrong and unjustified in sustaining the addition of Rs. 3,61,103/-."
2. No one appeared on behalf of the assessee, however, a communication was received dated 21.05.2018 wherein the assessee through its ld. AR Shrichand Gupta, Advocate has requested to consider the written submissions filed earlier. It was further submitted that the facts of the case are identical to the facts in the case of Moole Rami Reddy vs. ITO decided by the Coordinate Bench. Hence, it was submitted the said decision may be considered while disposing off the present appeals filed by both the assessees.
3. Briefly, the facts of the case are that both the assessees jointly inherited the impunged property on the death of Smt. Sunita Kumari on 3 ITA. No. 781 & 782/JP/2013 Sh. Mukesh Kumar Agarwal, Alwar & Sh. Yash Agarwal, Alwar vs. ITO, Alwar 16.01.1999 and thereafter, the property in the plot was transferred in favour of the buyer in terms of agreement to sell dated 11.04.2007 and an amount of Rs. 1,01,000/- was received as advance money and balance Rs. 4,50,000/- was to be received at the time of registration of the documents. Since Yash Agarwal, one of the assessees, was minor at the time of agreement to sell, on insistence of the buyer, the registration of the property was executed subsequently on 16.01.2008. However, the possession of the plot was given to the purchaser at the time of agreement itself. As the property in the plot was transferred in the name of the purchaser on 11.04.2007, the stamp duty value as on date of transfer i.e. 11.04.2007 determined at Rs 6,66,670 was determined as against actual sale consideration of Rs 5,51,000 and capital gains were computed based on the stamp duty value so determined and offered to tax by the respective assessees while filing their individual return of income. As against that, the AO has applied the stamp duty value determined at Rs 13,88,875 as on 16.01.2008, being the actual date of registration of the sale agreement with the stamp duty authorities and raised consequent demand on both the assessees. The ld CIT(A) has confirmed the said demand and against his order, both the assessees are in appeal before us.
4. The limited issue under consideration is whether for the purposes of section 50C, the stamp duty value has to be considered as on the date of agreement to sell i.e, 11.04.2007 when the impunged property was transferred or as on 16.01.2008 when the sale deed was subsequently registered with the stamp duty authorities, both falling under the same financial year relevant to the impunged assessment year.
4 ITA. No. 781 & 782/JP/2013Sh. Mukesh Kumar Agarwal, Alwar & Sh. Yash Agarwal, Alwar vs. ITO, Alwar
5. The ld AR has placed reliance was on the Co-ordinate Bench decision in case of Moole Rami Reddy vs. ITO in ITA No. 311/Vizag/2010 dated 10.12.2010. In that case, we find that the Coordinate Bench has relied on its earlier decision in case of M/s Lahri Promoters in ITA No. 12/Vizag/2009 dated 22.06.2010 wherein it was held that the rates prevailing as on the date of agreement are to be adopted instead of rates prevailing on date of registration of the property. Relying on the said decision, the Coordinate Bench in case Moole Rami Reddy held that since the value of the property declared by the assessee as on the date of sale agreement is higher than value shown in the certificate (issued by Jt. Sub- registrar), the value declared by the assessee is to be adopted for computing the capital gains.
6. In the instant case, we find that though the sale consideration has been agreed at Rs 5,51,000 which is lower than the stamp duty value of Rs 6,66,670 as on date of agreement to sell (as on 11.04.2007), both the assessees have suo-moto applied the stamp duty value of Rs 6,66,670 while computing the capital gains and offered the same in their respective return of income. It is not the case of the Revenue that there is no transfer as on the date of agreement to sell and the transfer has actually happened as and when the sale deed has been subsequently registered. Applying the ratio of the decisions of the Coordinate Benches referred supra, the rates prevailing as on the date of agreement are to be adopted in the instant case instead of rates prevailing on date of registration of the property. Further, we find that there is a statutory recognition of the said legal proposition by way of insertion of proviso to section 50C to the effect that where the date of agreement fixing the amount of consideration and date of registration 5 ITA. No. 781 & 782/JP/2013 Sh. Mukesh Kumar Agarwal, Alwar & Sh. Yash Agarwal, Alwar vs. ITO, Alwar for transfer of the capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer. Though the said amendment has been brought in by the Finance Act 2016 w.e.f 1.4.2017, however, the same confirm the legal proposition as emanating from the decisions of the Coordinate Benches referred supra.
In the result, both the appeals filed by the respective assessees are allowed.
Order pronounced in the open Court on 04/06/2018.
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:- 04/06/2018.
*Ganesh Kr.
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Mukesh Kumar Agarwal, Alwar Shri Yash Agarwal, Alwar
2. izR;FkhZ@ The Respondent- ITO, Alwar
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. 781 & 782/JP/2015} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar