TMI Blog2011 (11) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... This is an appeal by assessee against the order of ld. CIT (A) relating to assessment year 2006-07. 2. The assessee is objecting in confirming the replacement of Actual Sales Consideration by applying provisions of section 50C of the I.T. Act. The assessee has also filed an amendment/additional ground. Ground No. 3A is a summarized ground taken originally. Ground No. 3B is an alternate ground which was taken as additional ground now reads as under :- 3B. Alternatively, in the facts and circumstances of the case and in law the learned Commissioner (Appeals) has erred in confirming the action of the assessing officer in not allowing the exemption under section 54EC in respect of long-term capital gains. The action of the learned Commissioner (Appeals) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by allowing the exemption under section 54EC in respect of long term capital gains. 3. The facts in brief are that assessee sold property for ₹ 40 lacs on 12.1.2006 by way of registered Sale Deed. For the purposes of imposing stamp duty, the value adopted by Sub Registrar was ₹ 74,58,880/-. The AO was of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 5,558/-. The plot was sold for a sale consideration of ₹ 10.81 lacs. The AO invoked provisions of section 50C of the Act and accordingly full value of consideration was taken at ₹ 19,24,987/- which was taken by the Sub Registrar for the purpose of stamp duty. Accordingly, the AO re-computed the capital gain. The ld. CIT (A) confirmed the action of the AO. On second appeal before the Tribunal, detailed submissions were filed and reliance was placed on various case laws. After analyzing all the facts and circumstances of the case, the Tribunal has given its finding in para 7 to 7.5 which are reproduced as under :- 7. We have heard both the parties. Section 48 of Income tax Act states that capital is to be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the expenditure incurred in connection with transfer and the cost of acquisition of the asset and the cost of any improvement thereto. Hence, we will have to first ascertain the full value of the consideration. In respect of transfer of capital asset being land or building, full value of the consideration to be adopted for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The natural meaning of full value of consideration refers to consideration specified in the sale deed. The Hon'ble Delhi Hon'ble High Court in the case CIT v. Smt. Nilofer I Singh, 309 ITR 233 had held that full value of consideration refers to the consideration specified in the sale deed. For deciding the meaning of word 'full value of consideration', the Hon'ble Delhi High Court has referred to the decision of Hon'ble Apex Court at page 237 as under : ''This controversy has already been settled by the Supreme Court in the case of CIT v. George Henderson and Co. Ltd. [1967] 66 ITR 622, the very expression 'full value of consideration' was under consideration of the Supreme Court in the context of the provisions of the Indian Income-tax Act, 1922. The provisions of Section 12B of the 1922 Act pertain to capital gains. Sub-section (1) was in pari material to Section 45(1) of the present Act and subsection (2) of Section 12B of the 1922 Act was in pari material to the provisions of Section 48 of the present Act. The Supreme Court was of the view that the expression 'full value of consideration' in the main part of Section 12B(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the date of transfer of the original asset; or (ii) purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the original asset; or (iii) constructs any residential house, other than the new asset, within a period of three years after the date of transfer of the original asset; and (b) the income from such residential house, other than the one residential house owned on the date of transfer of the original asset, is chargeable under the head Income from house property .] Explanation-For the purposes of this section,-- 52[***] 53[***] net consideration , in relation to the transfer of a capital asset, means the full value of the consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection with such transfer.'' 7.3 In Explanation to Section 54F(1), it is mentioned that net consideration means the full value of consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.5 We are aware that Hon'ble Apex Court in the case of Goetze (India) Ltd. v. CIT, 284 ITR 323 has held that the AO has no power to entertain a claim made otherwise than by way of revised return . It was made clear that the decision is restricted to the power of the AO to entertain the claim for deduction otherwise than by revised return and did not impinge on the power of the appellate Tribunal u/s 254 of the Act. Reference has been made to the decision of National Thermal Power Company Ltd. v. CIT 229 ITR 383 (SC). In the instant case, the assessee has claimed the deduction u/s 54F before the ld. CIT(A) and the ld. CIT(A) has entertained such claim. Therefore, the issue of claim can be considered. Hence we hold that the assessee is entitled for deduction u/s 54F of the Act. Alternatively, the claim of the assessee in restricting the capital gains to the extent of ₹ 1,39,377/- is correct. Since we are holding that the assessee is entitled to get deduction for the entire capital gains u/s 54F, therefore, the alternative claim is not considered. 8. We find similar facts are involved in the present case. Assessee has received sale consideration of ₹ 40,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
