TMI Blog2014 (12) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of a similar fiction in the case of the assessee who acquires such an asset - the declaration of a higher cost for acquisition for stamp duty might be the starting point for an inquiry in that regard that inquiry might extend to analyzing sale or transfer deeds executed in respect of similar or neighbouring properties, contemporaneously at the time of the transaction - the finding cannot start and conclude with the fact that such stamp duty value or basis is higher than the consideration mentioned in the deed - The compulsion for such higher value, is the mandate of the Stamp Act, and provisions which levy stamp duty at pre-determined or notified dates - the order of the CIT(A) is upheld – Decided against revenue. - ITA Nos.2057 & 2058/Del/2012, ITA Nos.2055 & 2056/Del/2012 - - - Dated:- 31-10-2014 - H. S. Sidhu, JM And T. S. Kapoor, AM,JJ. For the Petitioner : Shri Vikram Sahay, Sr. DR For the Respondent : Shri Piyush Kaushik, Adv. ORDER Per Bench: Revenue has filed these Appeals against the separate impugned orders all dated 29.2.2012 passed by the Ld. CIT(A)-XXIV, New Delhi u/s. 144/ 271(1) (c) of the I.T. Act, 1961 respectively in respect of sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of the case, the Ld. CIT(A) erred in accepting self serving documents not corroborated by cross examination or produced before the AO. (iii) Set aside the order of the CIT(A) and restore the matter back to the AO to re-examine fresh evidence in a holistic manner and as per law. The appellant craves the right to add any other ground of appeal. 6. Briefly stated the facts are that as per the AIR information was received from the CIT(CIB)/Delhi vide Reference No. CIT(CIB)/Delhi/GSL562 for transaction of ₹ 42,19,375/-. Notice u/s. 142(1) was issued and served on the assessee by speed post at the last available address in the record. The same has not been received back hence treated as served. Nobody attended. Another notice was sent to comply on 4.12.2007 fixing the case for hearing on 12.12.2007. Nobody attended. In view of the non compliance of the said notices, the AO decided to pass the order exparte u/s. 144 of the Act treating ₹ 42,19,375/- as unaccounted investment in property and initiated penalty proceedings u/s. 271(1)(c). Notice u/s. 274 read with section 271(1)(c) was issued on 28.12.2007 fixing the case for 15.1.2008. However, nobody attende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee to the stamp authorities, being higher than the consideration disclosed in the sale deed or conveyancing instrument. That provision reads as follows: 50C. Special provision for full value of consideration in certain cases, (1) Where the consideration received o accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority of a State Government (hereinafter in this section referred to as the stamp valuation authority ) for the purpose of payment' of stamp duty in respect of such transfer, the value so adopted or assessed shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer. (2) Without prejudice to the provisions of subsection (1), where - (a) the assessee claimed before any Assessing Officer that the value adopted or assessed by the stamp valuation authority under subsection (1) exceeds the fair market value of the property as on the date of transfer; (b) the value so adopted or assessed by the stamp valuation authority under sub-section (i) has not been disputed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities concerned the real value. Thus, what is stated in Section 50C as a real value cannot be regarded as a notional or artificial value and such real value is determinable only after hearing the assessee as per the statutory provisions stated supra. There is no indication either in the provisions of Section 50C of Income-tax Act or Section 47A of the Stamp Act or rules made thereunder about the adoption of the guideline value. Hence, the contention that the Section 50C is arbitrary and violative of Article 14 cannot be accepted. The fiction created by virtue of Section 50C applies only in respect of escaped income of a seller, for the determination of the true capital gain. Such a special provision has to be construed narrowly, having regard to the subject matter, and the extension of the fiction or presumption in respect of any matter not covered by it is unauthorized by the law. There is a body of judicial authority on this aspect (Garden Silk Mills Ltd v Union of India AIR 2000 SC 33; Union of India v Sampat Raj Dugar AIR 1992 SC 1417). The principle was propounded pithily by the Supreme Court in Bengal Immunity Co. Ltd v State of Bihar AIR 1955 SC 661 as follows: a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sset represents the actual consideration received by the assessee as against the consideration untruly declared or disclosed by him. This approach in the construction of subsection (2) falls in line with the scheme of the provisions relating to tax on capital gains. It may be noted that section 52 is not a charging section but is a computation section. It has to be read along with section 48 which provides the mode of computation and under which the starting point of computation is the full value of the consideration received or accruing . What in fact never accrued or was never received cannot be computed as capital gains under section 48. Therefore, sub-section (2) cannot be construed as bringing within the computation of capital gains an amount which, by no stretch of imagination, can be said to have accrued to the assessee or been received by him and it must be confined to cases where the actual consideration received for the transfer is understated and since in such cases it is very difficult, if not impossible, to determine and prove the exact quantum of the suppressed consideration, sub-section (2) provides the statutory measure for determining the consideration actually re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the assessee, as no books are maintained by the assessee. We find that moreover, it is not the case, where the AO has brought on record any contrary material to substantiate that assessee or her mother Smt. Sudha Garg has paid any other amount as has been mentioned in the sale deed executed before the Registrar of properties. It is also not the case of the AO that there is any other contrary or supportive evidence which corroborates the stand taken by the AO except the value adopted by the Registrar of properties for purposes of stamp valuation. We find that Ld. CIT(A) has stated in his order that no inquiry was conducted by the AO before invoking the provisions of section 69B of the Act and no evidence is brought on record by the AO that some extra consideration was paid by the assessee for acquiring the property over and above the amount of sales consideration as shown in the sale deed. It is not understood as to why the value taken by the Registrar of properties for purpose of stamp duty payable can be considered as the sole consideration, and not any amount higher or lower than that. Payment of stamp duty cannot be sole criteria to presume that assessee must have paid th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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