TMI Blog2018 (6) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter referred to as the Act ) dated 27/12/2011 relevant to Assessment Year (AY) 2009-10. 2. The grounds of appeal raised by the assessee are as under:- The order of ld. CIT(A)-10 confirming the order of AO is bad in law as well on facts on the following grounds: 1. The ld. CIT(A) has erred in confirming disallowance of LTCG made by AO of ₹ 8,60,120/- u/s.50C of IT Act on the ground of difference between sale price and stamp duty valuation. 2. The ld. CIT(A) has erred in confirming interest charges by AO u/s.234B 234C of Income Tax Act, 1961. 3. The assessee craves for liberty to amend, modify and add any grounds of appeal or furnish additional evidences. 3. The first issue raised by the assessee in this appeal is that learned CIT(A) erred in confirming the order of the AO by sustaining the disallowance of ₹ 8,60,120/- u/s 50C of the Act. 4. Briefly stated facts are that the assessee in the present case is HUF and deriving his income from business and other sources. The assessee during the year had sold a land bearing survey no.763 located at Village Karannagar for ₹ 50,00,000/- dated 16-07-2008. The share of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y value because there was no default on part of the registrar in registering the documents. The delay took place on part of the stake holders i.e. sellers (appellant) and purchasers, The very fact that appellant has chosen to pay stamp duty on the amount of ₹ 93,00,600/- makes it clear that he was aware that registration would be actually done in the next financial year i.e 2008-09 and therefore the new fair market value would be applicable for register the land sale. At this juncture it is relevant to reproduce the provisions of section 50C of the Income tax act. (1) Where the consideration received or 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 or assessable 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 or assessable 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue for F.Y. 2008-09 is not acceptable. If appellant wants to contend that transaction had taken place in the F.Y. 2007-08 he should have shown the Long Term Capital Gain on the basis of transaction value in A.Y. 2008-09. However, the appellant chosen to disclose the L.T.C.G. only in A.Y. 2009-10. This clearly indicate that the appellant himself has accepted that the property transaction has been entered into during F.Y. 2008- 09 and therefore there should not be no dispute as to why the valuation for earlier year should be applicable. The appellant has relied on the decision of CIT vs. Kishanchand Chetiar 125 ITR 713 to contend that a copy of valuation made by the AO was not supplied t him. In this regard, it is seen that the stamp duty paid on the document has been worked out on a value of ₹ 93,00,600/- which is the value provided by the stamp valuation authority to the AO . The Appellant was well aware of this value as he had paid stamp duty on the same. Therefore, the appellant s contention that a copy of the valuation made by the AO was not supplied to him is not correct. AO s action in obtaining the copy of valuation can be at the most treated as a process of verificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Being aggrieved by order of learned CIT(A) assessee is in appeal before us. Learned AR before us submitted as under: It was claimed that the land sold falls in A.Y. 2008-09, since Sale deed was executed, Stamp duty was paid, Registration fees paid and possession of the land was given to the buyer on 31/03/2008. The A.O. had Re-opened the assessment in A.Y. 2009-10 on the basis of registration of sale deed on 16/07/2008. The land is owned by 5 Co-owners including appellant. In case of other 4 co-owners same issue was involved and in those cases same additional ground was raised. Hon. SMC Bench have vide ITA no. 520 to 523/AHD/2014 decided the appeals as under: 6. Since the sale has taken place in F.Y. 2007-08 Pertaining to A.Y. 2008-09, the capital gains, if any, have to be taxed in A.Y. 2008-09. We find that the appellants have disclosed the capital gains in A.Y. 2009-10 which is not the proper year for the taxability of capital gains. 7. We accordingly restore the issue to the files of the A.O. The A.O. is directed to determine the capital gain tax liability as per the provisions of the law in A.Y. 2008-09.The A.O. is directed to allow credit of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53 (2A) would apply - Head Notes The copy of the said judgment is enclosed herewith for Honors reference. In view of the above facts and judgment of Hon. ITAT Kolkata bench your Honors are prayed to direct the A.O. that provisions of sec. 147 may not be invoked but fresh assessment may be made as per provisions of sec. 153 (2A) and oblige. On the other hand, learned DR submitted that the Hon ble ITAT in respect of other parties has restored the matter to the file of the AO with the specific direction to tax the capital gain income in the assessment year 2008-09 in ITA Nos. 520 to 523/AHD/2014 vide order dated 24-07- 2017. The relevant extract of the order is reproduced below: 7. We accordingly restore the issue to the files of the AO. The AO is directed to determine the capital gains tax liability as per the provisions of the law in A.Y. 2008-09. The AO is directed to allow credit of taxes, if any, paid relating to the sale of the impugned land in A.Y. 2008-09. Even if the said tax has been paid by the appellants in A.Y. 2009-10. Learned DR vehemently supported the order of authorities below. 6. We have heard the rival contentions and perused the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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