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TMI Blog2018 (7) TMI 2218X X X X Extracts X X X X X X X X Extracts X X X X ..... -. The assessee has filed the following additional ground praying as legal grounds. 1. That no notice u/s 148 was served on the assessee before completing of assessment proceeding. 2. That AO had not taken approval for reopening of assessment as per sec 151. 2.1 Apropos Ground No. 1 to 5 of the assessee, the facts as emerges from the order of the ld. CIT(A) are as under:- 3.1.2 Determination: (i) The brief facts of the case are that during the year under consideration the appellant along with his brothers namely S/Shri Madan Lai, Govind Narayan and Munna Lai had sold land at Tagore Nagar, Heerapura to Smt. Krishna Devi wife of Shri Mussadi Lai Yadav vide four separate sale deeds. The sale deeds, executed by the three brothers of the appellant were registered with Sub-Registrar- III, Jaipur and the sale deed executed by the appellant was registered with the Sub-Registrar- IV, Jaipur. It may be mentioned that the Collector (Stamps), Jaipur vide its order dated 23.03.2006 has determined the value of the land sold by the three brothers of the appellant for the purposes of charging stamp duty at Rs. 81,58,722/-. It may be mentioned that in the case of the appellant, the land w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hna Devi. It was further stated in the sale deed that the possession of the land was also handed over by the appellant to Smt. Krishna Devi. It is noted from the material placed on record that some dispute has arisen between the appellant, his brothers on the one hand and Smt. Krishna Devi on the other hand which is pending before the court of law. It is noted from the material placed on record in the case of Shri Govind Narayan Yadav, brother of the appellant, for the AY 2006-07 in ITA No. 483/2013-14 that a suit for issue of temporary injunction was filed by appellant along with his brothers Shri Govind Narayan Yadav and others in relation to their dispute with Smt. Krishna Devi in the Court of Civil Judge (A & B) and Metropolitan Magistrate (East), Jaipur and vide order dated 03.07.2013 in case No. Misc.(Temporary Injunction)/ 332/2012, the temporary injunction as prayed by the petitioners was denied by the Civil Judge, a part of the relevant extract of the above referred order of Civil Judge is reproduced as under: (v) Against the above referred order of Civil Judge, the appellant along with his brother Shri Govind Narayan Yadav and others (the petitioners) filed a civil appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable for capital gains tax. (ix) During the appellate proceedings, it was submitted by the appellant that the provisions of section 50C of the Act could be invoked only if the sale consideration of the capital asset, as stated in the sale deed, is less than the value adopted or assessed or assessable by any authority of state government for the purposes 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 of the Act, be deemed to be the full value of consideration. It was further stated that in the instant case under consideration, the value of the land was assessed at Rs. 10 Lac by the Sub-Registrar- IV, Jaipur. In view of these facts, vide this office letter dated 09.12.2016, the matter was apprised to the DIG-II (Registration & Stamps), Jaipur for taking necessary action, if any, in respect of land sold by the appellant during the year under consideration. It may be mentioned that vide order dated 27.06.2017, the Collector (Stamps)- II, Jaipur- has determined the value of fhe land at Rs. 81,58,722/- after taking into consideration, the valuation made by the Collector (Stamps), Jaipur in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) The assessment order was passed by the AO u/s 144/147 of the Act on 07.03.2014 and the return of income was filed by the appellant on 18.01.2016 i.e. the return of income was filed after the completion of the assessment and therefore, no cognizance could be given to it as it is a non est return. (xiii) It may be mentioned that the appellate authority can examine a claim not made by the appellant in its return of income, however, in the instance case under consideration, it is to be noted that the appellant has filed its return of income post completion of assessment. However, it is trite law that only the real income is to be subjected to taxation. The appellant or its forefathers must have acquired the land for same consideration and the benefit for cost of acquisition should be allowed for computing the real income of the appellant. It may be mentioned that as per registered valuer report dated 11.01.2016, the FMV of the land as on 01.04.1981, sold by the appellant during the year under consideration, was stated at Rs. 75,000/- per bigha. However, no basis for arriving at such rate was provided in the valuation report and certainly, it was not based on any sale instance. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.00 lacs which was the value adopted by the Sub-Registrar, Jaipur. In assessee's case, there was no reference regarding the valuation of the property by the Sub-Registrar, Jaipur to any of the higher authorities. The addition is based on the Collector (Stamps) valuation in the case of three bothers of the assessee. In assessee's case the sale consideration of Rs. 10 lacs was accepted by Sub-Registrar -IV, Jaipur. Thus there was no enhancement in assessee's case rather there is no reference to the Collector (Stamps) in assessee's case. It is a settled position of law that Section 50C is a deeming provision and such provisions cannot be invoked when there was no difference in sale consideration declared and value adopted by Registrar or where no reference for valuating full value of consideration of property to Collector (Stamps). For the sake of convenience and brevity of the case, it will be pertinent to mention the provision of Section 50 of the I.T. Act, 1961 as under:- [Special provision for full value of consideration in certain cases. 50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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