Income Tax Appellate Tribunal - Chandigarh
Sh. Om Parkash, Yamunanagar vs Ito, Yamunanagar on 5 February, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL
CHANDIGARH BENCHES 'B', CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER &
Ms. ANNAPURNA GUPTA, ACCOUNTANT MEMBER
ITA No. 121/Chd/2016
Assessment Year: 2007-08
Sh. Om Parkash, Vs. The ITO, Ward-3,
S/o Sh. Krishan Lal, Yamunanagar
Vill Jarodi, PO Mehalawali,
Tehsil Jagdhri,
Dist. Yamunanagr,
PAN No. BCCPP0830J
(Appellant) (Respondent)
Appellant By : Sh. S.K. Mukhi
Respondent By : Sh. Manjit Singh, Sr.DR
Date of hearing : 08.11.2017
Date of Pronouncement : 05.02.2018
ORDER
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals), [hereinafter referred to as CIT(A)], Panchkula dated 04.12.2015.
2. The assessee has raised following grounds of appeal:-
1. That the impugned order or Ld. CIT (A) in concurring with the finding of Ld. AO in confirming the order u/s 143(3)/I47 of Income Tax Act, 1961, is illegal, unjustified, erroneous, perverse and against the facts of the present case without affording sufficient opportunity.2
2. (a) That Ld. CIT (A) is not justified in confirming the findings of Id. A.O. in holding that the transfer of the property took place during the year under consideration by confirming the date of trans f e r of the agricultural land as the date of registration of the sale deed wherein the major amount of consideration (i.e. 90%) was received in the subsequent year without appreciating the correct facts of the present case and terms and conditions of the sale deed, hence, the findings of authorities below are bad in law and uncalled for.
(b) That without prejudice to above the Ld. CIT (A) is not justified in concurring with the findings of the Ld. AO in determining the Long Term Capital Gain on the full value of consideration at Rs. 5899334/- instead of the actual amount received during the year under appeal which was to the extent of Rs. 541557/- as part performance without appreciating the correct facts of the present case, hence, the findings of authorities below, are bad in law and uncalled for.
3. That Ld. CIT (A) is not justified in not granting exemption u/s 54B & 54F where the amount was invested in agricultural and residential property within the prescribed time period. Hence the findings of authorities below are bad in law and uncalled for.
4. That Ld. CIT (A) is not justified in concurring with the findings of Ld. Assessing officer in adopting/computing the Fair Market Value of the land as on 01.04.1981 erroneously without:
appreciating the facts and value as declared by the appellant which is erroneous and hence the findings of the authorities below are bad in law and uncalled for.
5. That without prejudice to above, the confirmation of impugned addition by the CIT(A) is highly excessive and thus uncalled for.
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3. T h e s o l e i s s u e r a i s e d i n t h i s a p p e a l i s r e g a r d i n g t h e ye a r o f taxability of the capital gains earned by the assessee on the sale of the land.
4. The assessee alongwith various other persons has sold his land to the Developer. A meager part of the sale consideration was r e c e i v e d b y t h e a s s e s s e e i n t h e ye a r r e l e v a n t t o a s s e s s m e n t ye a r 2 0 0 7 - 08 whereas the remaining part of the sale consideration was received b y t h e a s s e s s e e i n t h e ye a r r e l e v a n t t o t h e a s s e s s m e n t y e a r 2 0 0 9 - 1 0 .
5. At the outset, the Ld. Counsel for the assessee has relied upon the decision of the Coordinate Bench of the Tribunal in the case of 'Shri Rajiv Kumar Vs. ITO' in ITA No. 17/Chd/2016 to 19/Chd/2016 dated 29.6.2016 wherein the Tribunal on somewhat similar facts and circumstances has held that there was no transfer of capital assets in the assessment year 2007-08 and that Revenue authorities were at liberty to consider the issue of accrual or receipt of capital gains in a s s e s s m e n t ye a r 2 0 0 9 - 1 0 . L d . C o u n s e l f o r t h e a s s e s s e e h a s f u r t h e r submitted that the assessee had sold the land along with three persons namely S/Sh. Mohan Lal, Ramji Lal and Shri Jai Pal whose appeals on the matter came up for hearing before the Single Bench of the Tribunal and the Tribunal vide order dated 30.3.2017 has restored the m a t t e r t o t h e f i l e o f t h e A s s e s s i n g o f f i c e r . H e , t h e r e f o r e , h a s p r a ye d that the case of the present assessee be also resorted to the file of the Assessing officer for assessment afresh on similar lines.
6. The Ld. DR, however, has relied upon the findings of the lower authorities.
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7. We have considered the rival submissions and have also gone through the Single Member decision of the Tribunal in the case of 'Sh. Mohan Lal & others Vs. ITO' in ITA Nos. 122/Chd/2016 to 125/Chd/2016 vide order dated 30.3.2017. The relevant part of the order, for the sake of reference is reproduced as under:-
"2. The Ld. AR, Mr. S.K. Mukhi appearing on behalf of the assessee submitted that the facts in the case of the assessee are identical to what has been considered by the I.T.A.T. in the case of Shri Rajiv Kumar Vs. ITO and others in ITA Nos. 17/Chd/2016 to 19/Chd/2016 dated 29.6.2016. The ITAT considering similar facts namely that only 10% of the sale consideration as per the sale deed dated 20.3.2007 was parted with in favour of those asesesses and 90% of the payments was made in 2009-10 assessment year has held that no capital gain arose in 2007-08 assessment year and the capital gains could be considered in 2009-10 assessment year only. It was his submission that in facts of that case in 2007-08 assessment year, Rs. 50 lakhs was received in the year under consideration and Rs. 2 crores was received in 2009-10 assessment year. Referring to the facts of the present case, attention was invited to the fact that the assessee Sh. Mohan Lal had sold 1/8 t h of his share of land in village Parodi, Yamunanagar for Rs. 3,57,50,000/- on 20.3.2007 to M/s Green Planet Pvt Ltd, New Delhi. The sale consideration comprised of Rs. 4,06,250/- vide cheque dated 20.3.2007 and Rs. 40,62,500/- vide undated cheque from M/s Green Planet Pvt. Ltd, New Delhi and the proceeds of these cheques were realized by the assessee in March 2007 and on 16.6.2008. Identical claim of the assessee that the sale receipt by virtue of the two different cheques would be relevant for 2007-08 and 2009-10 assessment years was not accepted by the Assessing Officer or the CIT (Appeals). Iin view of the complete similarity of the facts vis-a-vis the order of the ITAT, it was his submission that the addition may be deleted. It was also his submission that apart from that the assessee had also made a claim that the sale proceeds had been applied for purchase of property and the issue was agitated before the Assessing officer as well as before the CIT(A) as would be evident from para 5 page 5 of the impugned order and relief u/s 54B and 54F had been claimed that no tax liability arose. The assessee it was submitted had sought permission to place additional evidence under Rule 46A. However, though the 5 argument of the assessee is reproduced in the said para, the CIT(A) rejected the application for fresh evidence cursorily. Accordingly, it was his prayer that the issue may be remanded to the Assessing officer.
3. The Sr. DR Mr. Mittal submitted that in the facts as considered in the case of Shri Rajesh Kumar, oral submission as opposed to documentary evidence was relied upon to hold that possession of land was not handed over to the developer. It was his submission that the assessee may be directed to prove its claim relying upon documentary evidences. In the facts of the present case, the assessee has sought opportunity to place fresh evidences. Thus, in the circumstances he would have no objection if the issue is remanded to the Assessing officer. However, on the correctness of the evidence, it was requested no findings may be given. The issue, it was submitted may be left open to the Assessing officer to consider and decide on facts Similarly, qua the claim on the applicability of section 54B and 54F of the Act, it was submitted that the matter be remanded. However, the assessee may be directed to place full and proper facts before the Assessing officer.
4. I have heard the rival submissions and perused the material available on record. It is seen that in regard to the sale deed, the same is also entered into on the very same day i.e. 20.3.2007, as considered by the Coordinate Bench. The assessee is found to have claimed that during the specific period a lot of developmental activity took place in this area where Green Planet Pvt Ltd, New Delhi, New Delhi was also one of the players entering into purchases of land. The modus operandi of the developer as per the claim made continues to be that a minor payment (only with meager advance) was initially made to the parties. It is only when actual possession of land was handed over that full payment was released resulting in sale. Accordingly, considering the stand of the parties before the Bench, the issue is remanded back to the file of the Assessing Officer to decide the issue de-novo permitting the assessee opportunity to file fresh evidences in support of its claim. The Assessing Officer shall also consider the alternate claim of the assessee by taking into consideration whatever fresh evidences the assessee deems it appropriate to file in support of its claim qua the relief sought u/s 54B and 54F of the Act.
5. Since the facts and circumstances continue to remain the same in the cases of the other co-owners also, the said orders 6 for identical reasons are also set aside and restored back to the file of the Assessing officer with identical directions.
6. In the result, appeals of the assesses are allowed for statistical purposes."
8. Since the issue raised before us is squarely covered by the above decision of the Tribunal and even the present dispute has arisen out of the same transaction, in our view, it will be just and proper to restore the present matter also to the file of the Assessing officer on similar lines. In view of the above, the matter is restored to the file of the Assessing officer to decide the issue afresh with identical directions as given in the case of 'Sh. Mohan Lal vs ITO' (supra). The appeal of the assessee is treated as allowed for statistical purposes.
9. In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Open Court on 05.02.2018 Sd/- Sd/-
(ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 05.02.2018 Rkk Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR