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2016 (3) TMI 638 - ITAT LUCKNOW

2016 (3) TMI 638 - ITAT LUCKNOW - TMI - Computation of long term capital gain - sale of immoveable land bearing Khasra No.1583 Ka, Rakba 1.986 Hectare and the other Khasra No.1584 Kha, Rakba 0.101 Hectare, totaling 2.087 Hectare situated at village Aurangabad Khalsa, Tehsil and Zila Lucknow - Held that:- The onus is upon the assessee to establish through documents that the impugned land was purchased by the assessee and his wife. The, onus is also upon the assessee to establish that the other la .....

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that the assessee did not own the land, pending before any of the judicial forum. If no claim in this regard is raised by M/s Sanskar Foundation and the assessee has not refunded the sale consideration to M/s Sanskar Foundation, having realized that he is not the owner of the land, the assessee would be responsible to pay tax on the income realized on this alleged transfer. According to us, if provisions of section 50C of the Act cannot be invoked on account of illegal transfer of land for want .....

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said amount, as it has already barred by limitation.

All these aspects were neither examined by the Assessing Officer nor by the ld. CIT(A). Therefore, we are of the view that these aspects should be examined by the Assessing Officer after affording proper opportunity of being heard to the assessee. Accordingly, we set aside the order of the ld. CIT(A) and restore the matter to the Assessing Officer to re-adjudicate the issue in terms indicated above. Appeal of the assessee as well a .....

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together, these are being disposed of through this consolidated order. For the sake of reference, we extract the grounds raised in these appeals as under:- GROUNDS RAISED BY THE ASSESSEE: 1. The Learned C.I.T., (Appeals), Lucknow erred while sustaining the charging of capital gain on the appellant. 1. (a)The Learned C.I.T., (Appeals), Lucknow erred while not considering that the appellant is not the legal owner of the land. 1. (b) The Learned C.I.T., (Appeals), Lucknow erred while not consideri .....

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e addition of ₹ 72,58,724/- made on account of long term capital gain in as much as the findings of CIT(A) that the wife of Shri Joginder Singh Khurana is having share of 50% on the land in question, are not supported by any documentary evidence. 2. The Commissioner of Income-tax (Appeals), Lucknow has erred in law and on the facts of the case in reducing by 15 lakhs, the value of property valued at ₹ 82,41,800/- by the DVO, arbitrarily and without any justification. 3. The sole cont .....

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₹ 43,17,500/- and the market value of the said property was at ₹ 1,04,35,000/-. Accordingly provisions of section 50C of the Income-tax Act, 1961 (hereinafter called in short the Act") was invoked and the matter was referred to the DVO, who valued the property at ₹ 82,41,800/- and the Assessing Officer accordingly computed the long term capital gain at ₹ 72,58,724/- in the hands of the assessee. 5. The assessee has raised a plea before the Assessing Officer that the .....

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that the land was sold by the assessee as well as his wife, Smt. Paramjeet Kaur and he accordingly held that 50% capital gain is to be taxed in the hands of the assessee. 7. Now the assessee as well as the Revenue are in appeal before us and during the course of hearing, the ld. counsel for the assessee has invited our attention to one agreement executed by Manik Radhey Lal s/o Jagroop, attorney of Raj Kumar, Purushottam Das and Rajendra Kumar sons of late Shri. Parganand Tulani in favour of th .....

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he assessee is not the owner of the land. Therefore, provisions of section 50C of the Act cannot be invoked and whatever amount was received by the assessee on alleged sale to M/s Sanskar Foundation, is required to be refunded back. Therefore, the assessee has not earned any capital gain on which he is liable to pay tax. In support of his contention, the ld. counsel for the assessee has placed reliance upon the order of the Tribunal in the case of Geeta Devi vs. Income Tax Officer in I.T.A. No. .....

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per sale document, the assessee has sold this land for ₹ 45,17,500/- and according to the assessee, the land was acquired by him for ₹ 3.60 lakhs, therefore, the difference of the amount is an income from other sources in the hands of the assessee. Under the garb of his argument, he cannot be escaped from the tax liabilities. The assessee has received the aforesaid amount from the so called buyer on 3.2.2006 and till date the so called buyer has not raised any claim for refund of the .....

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m Das and Rajendra Kumar sons of late Shri. Parganand Tulani in favour of the assessee and his brother, Surendra Singh which is appearing at pages 1 and 2 of the compilation of the assessee and on its perusal we find that this agreement was executed in respect of land bearing Khasra No.1607 क for 3 Bigha and 11 Biswa and Khasra No.1650 ख for 4 Bigha and 17 Biswa and Khasra No.1504 मि for 9 Biswas, whereas the land involved bears Khasra No.1584 ख easuring land area o .....

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assed with respect to land bearing Khasra No.1584 क for land measuring 1.986 Hectare and the other Khasra No.1607 ग for land measuring 0.5310 Hectare. Therefore, with respect to land bearing Khasra No.1584 क measuring land 1.986 Hectare, the assessee cannot be called to be the owner of the land, as the land was mutated in the name of Vijay Kumar Mehra s/o Pannalal Mehra vide order dated 5.3.2010 pursuant to the direction of the Hon'ble High Court in writ petition No.6105 of .....

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d in favour of M/s Sanskar Foundation. Though the assessee has claimed in its return of income that he has purchased land for ₹ 3.60 lakhs, but once this agreement does not reflect the impugned land in its contents, this contention of the assessee is required to be verified. All these aspects were not examined either by the Assessing Officer or by the ld. CIT(A). They have straight away gone under presumption that capital gain has accrued to the assessee on sale of agricultural land. Our a .....

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s regard. But in the instant case, from the documents available on record, it is not clear whether the impugned land bearing Khasra No.1584 क measuring 1.986 Hectare and Khasra No.1584 ख measuring 0.101 Hectare land were purchased by the assessee and his wife, Smt. Paramjeet Kaur. 11. The onus is upon the assessee to establish through documents that the impugned land was purchased by the assessee and his wife. The, onus is also upon the assessee to establish that the other land beari .....

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