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2015 (11) TMI 866 - ITAT JAIPUR

2015 (11) TMI 866 - ITAT JAIPUR - TMI - Assessability of long term capital gain in respect of four properties sold by the assessee in the hands of HUF - 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 - Held that:- On the basis of alleged agreement to sell and deed of .....

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ll 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 .....

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dences 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. H .....

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s been held that the parties had clearly intended that desired execution 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 ₹ 50,000/- at the time of regis .....

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e 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 Kumar Mukherjee, son of Shri Satkori Mukh .....

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eement to sell in respective years in their respective income tax returns. Accordingly, the assessee’s appeal is dismissed and revenue’s appeal is allowed. - Decided against assessee.

Whether property is assessable under Chapter 4(iv) of the Act, which is liable to be assessed U/s 11(1a) of the Act - Held that:- 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 S .....

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0-2015 - SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM For The Revenue : Shri Raj Mehra (JCIT) For The Assessee : Shri Praveen Saraswat (CA) 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 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), J .....

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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 pr .....

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004-05, 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 .....

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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 31/3/2003 i.e. assessment year 2003-04. Hence the whole proceedings for assessing capital gains is void ab- inito for .....

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12,912 1081961 1069049 Naresh Kumar P.No. 10, Vaibhav Nagar, Jaipur 10/07/2003 12667 737875 725208 Raj Kumar P.No.2, Hathi Babu Bagh, Station Road Jaipur 15/10/2003 6600 802627 796027 Mahaveer Pd. P.No.2, Hathi Babu Bagh, Station Road Jaipur 15/10/2003 8680 990196 981516 Alok Mukherjee (1/2 share) Mohan Joshi Hathi Babu Ka Ahata, Kachi Basti, Jaipur (1/2 Share) 19/12/2003 100000 6888625 3394312 6966112 4. In all the cases, notice U/s 148 of the Income Tax Act, 1961 (hereinafter referred as the A .....

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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 nearb .....

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es 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 ₹ 204/- per sq. mt. the properties 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. L .....

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ders. 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 o .....

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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 th .....

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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 b .....

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7 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……… 18. We have merely drawn .....

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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 .....

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iscussion, the Fair Market Value of the properties sold, as on 01/04/1981 is taken at ₹ 7,08,076/- and at ₹ 1,69,628/- (1/3 of ₹ 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 f .....

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990196 ₹ 8,09,317/- 19/12/2003 Hathi Babu Ka Ahata, Kachi Basti, Jaipur (1/3 Share) 169628/- ₹ 2296208 ₹ 21,26,580/- Long term Capital Gain ₹ 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 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 oth .....

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d 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 .....

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ation 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. Th .....

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as pleaded by Smt. Seema Mukherjee that the rule or primogeniture ceased to be applicable after the resumption proceedings by the Govt. and so the 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 de .....

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r 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 .....

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te 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 .....

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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 coparcener, having all the incidents of coparcenary property). The reliance by the learned advocate for the defendant on the provisions of Se .....

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iven 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 .....

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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 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 .....

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to 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 capaci .....

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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 revenu .....

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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. T .....

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e 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. This view is supported by the observation of the Hon ble SC in the case of Suraj La .....

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eted 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. Therefor .....

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sions 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 ₹ 21,26,580/-assessed in his hands on transfer of this property u/s 50C is upheld. The AO is directed to take into accou .....

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o. 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. 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 Rega .....

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Sale and Handing Over the possession by seller. Date of presenting of the sale deed before registration authority by buyer Agreement value Rs. a) Ramesh Jain, 5, Hathi Babu Ka Bgh, Jaipur Alok Mukherjee (Minor) 09/08/1975 A.Y. 1976-77 (See Paper Book page No. 13 to 14) 05/05/2003 A.Y. 2004-05 (See Paper Book page No. 15 to 23) 12912/- b) Naresh Kumar PUrohit (Second buyer from original buyer Smt. Kusum Devi) 10, Hathi Babu Ka Bagh, Jaipur. Alok Mukherjee (Minor) 28/05/1975 A.Y. 1976-77 (See Pap .....

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) 8680/- e) Shri Mohan Joshi (erstwhile partner of M/s Mahaveer Hotel, which bought the asset originally), Hathi Babu Ka Ahata, Kachhi Basti, Jaipur. Late Shri Avani Kumar Mukherjee 01/08/1980 A.Y. 1981-82 (See Paper Book page No. 52 to 57) 31/03/2003 A.Y. 2003-04 (See Paper Book Page NO. 58 to 66) 100000/- 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 na .....

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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 .....

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vision 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. 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 conside .....

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. Late Shri Avani Kumar Mukherjee sold this property for ₹ 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 .....

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d 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 .....

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red/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 .....

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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 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 .....

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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 con .....

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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 bl .....

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on 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 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) .....

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) 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 substituted the consideration at ₹ .....

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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 .....

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on 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 .....

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here before any authority that these properties were belonged to HUF. Therefore, the ld DR argued that the status of this 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 ap .....

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ukherjee 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 ₹ 12,912/-. The father of the assessee received advance of ₹ 6,456/- i.e. 50% of the sale consideration and remaining amount of ₹ 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 .....

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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 ₹ 6,456/- on this date from the purchaser and Shri Alok Mukherjee received it. The purchaser rightfully got the posses .....

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Lal, the area is 318.5 sq.yard for ₹ 25,880/-. The father of the assessee had received ₹ 11,000/- as advance. Remaining amount of ₹ 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 su .....

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eived ₹ 25,520/- out of total consideration of ₹ 38,000/- at the time of agreement and it was decided that remaining amount of ₹ 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 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 p .....

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nt 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 ₹ 12,667/- whereas outstanding consideration as per original alleged agreement to sell was ₹ 14,480/-. The stamp authority has calculated the stamp value of this proper .....

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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 .....

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3 of the registry deed that whereas this remaining consideration has been shown ₹ 6600/- on page No. 4 of the same registry deed and real 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 ₹ 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 .....

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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 second party was enjoying position as tenant since 1959 on a rent of &# .....

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nt 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 ₹ 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 cl .....

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s 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 Ar .....

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ment 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 ₹ 50,000/-(30,000 + 20,000), however, in the alleged agreement to sell, it was ₹ 30,000/- only. As per this deed, remaining amount has been received by the first party at ₹ 50,000/- at the time of registry. 8.6 On the basis of alleged agreement to sell .....

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eement 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 .....

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dences 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. H .....

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the parties had clearly intended that desired execution 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 ₹ 50,000/- at the time of registry before Sub-Re .....

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he 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 Kumar Muk .....

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ees 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. T .....

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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 .....

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ns 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. 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 .....

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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 ₹ 21,26,580/- and capital gain on 56, Hathi Babu Ka Bagh, Station Road Jaipur was at ₹ 8,90,437/- which was c .....

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essed. 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 .....

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Babu Ka Ahata, Kachhi Basti, Jaipur on 19/12/2003 for ₹ 68,88,625/-. The assessee had not disclosed long term capital gain for the taxation purpose during the 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 ₹ 21,26,580/- and substantive in case of Aroop Mukherjee (Individ .....

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n 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 accordingly, we dismiss the revenue s appeal. It is informed that no appeal has been filed in case of Shr .....

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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 asse .....

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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 .....

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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 ₹ 77,81,718/- i.e. capital gain at plot No. 327, Hathi Babu Ka Bagh, Jaipur (1/2nd share) at ₹ 38,90,859 and plot No. 327, Hathi Babu Ka Bagh, Jaipur (1/2nd share) at ₹ 38,90,859/-. 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 S .....

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(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 .....

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