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TMI Blog2022 (7) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and on facts by taking 1/4 th of jantri value of the land as sale consideration in the hands of appellant for arriving at LTCG capital gain of Rs.2973200/- for AY 2012-13 3. The appellant craves to add , alter, change , modify , delete any of the grounds of appeal either before or during the course of the appellate proceedings." 3. The Department has raised the following grounds of appeal: "1. The Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.5,46,43,600/- out of total addition of Rs.5,76,16,800/- made on account long term capital gain. 1.1 The Ld. CIT(A) has erred in law and on facts in not appreciating that the case does not fall under the criteria mentioned in Rule 46A of the I. T. Rule. 2. On the facts and circumstances of the case, the Ld. Commissioner of Income tax (A) ought to have upheld the order of the Assessing Officer. 3. It is, therefore, prayed that the order of the Ld. Commissioner of Income tax (A) may be set-aside and that of the Assessing Officer be restored." 4. The brief facts of the case are that the assessee filed return of income for assessment year 2012-13 on 29-09-2012 declaring total income of Rs. 8,90,060/- During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 2012-13 and until then the land continued to be in the name of Mr. Ganpatbhai Patel in the land records. Accordingly, the assessee was liable for capital gains tax in respect of the sale of aforesaid property during the year consideration, as successors/ legal heirs of Mr. Ganpatbhai Patel.On the quantum of capital gains to be taxed in the hands of assessee, the Ld. CIT(Appeals) gave substantial relief to the assessee and deleted the addition made in the hands of assessee on protective basis and restricted the addition to only Rs. 29,73,200/- (being 1/4th share of Rs. 1,18,92.800/- stated to be received by the co-owners). Both the assessee and the revenue are in appeal before us against the aforesaid order of the Ld. CIT(Appeals). 5. We note that the ITAT Ahmedabad in the case of assessee's coowner's appeal (Ramilaben Ganpatbhai Patel) against the Ld. CIT(Appeals) order in respect of the capital gains arising out of sale of the very same property which is for consideration before us, in the case of Ramilaben Ganpatbhai Patel in ITA number 2968/Ahd/2017 for assessment year 2012-13 has held that it cannot be said that there was no consideration received by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to any terms and conditions of banakhat stated to be entered into on 15.07.2000 in the sale deed executed on 29.07.2011. There is also nothing on record to show that the property in question was transferred by Shri Ganpatbhai K. Patel to Shri Hamad Ali on 15.07.2000 within the definition of Section 2(47) of the Act. The said property is actually transferred within the meaning of Section 2(47) of the Act only on 29.07.2011 when the sale deed was executed and registered; and, as clearly mentioned in the sale deed, the transferors were the assessee and other three co-owners being the legal heir of Shri Ganpatbhai K. Patel. Shri Hamad Ali had joined the said sale deed only as confirming party and received certain amount out of total consideration as stated therein. As regards the contention of the learned Counsel for the assessee that no consideration was received by the assessee on sale of her share in the immovable property, it is observed that a sum of Rs.53,26,000/- was already received by Shri Ganpatbhai K. Patel in the past from Shri Hamad Ali and the said amount was adjusted against the sale consideration agreed between the parties as per sale deed dated 28.07.2011. As specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement i.e. Shri Hamad Ali. Perusal of bank account does indicate that there is neither immediate cash withdrawal from the bank account of Hamad Ali nor there is any cash deposit in bank account of appellant. Therefore, the appellant is to be taxed for amounts other than mentioned at Sr. No.4 to 6 above. 5.3 Shri Pankaj K. Shah, AR vehemently argued that the LTCG should be taxed at Rs.13,56,500/- (Rs.54,26,000 / 4) as there is no evidence on record by the Department that any sale consideration over and above Rs.54,26,000/- has been received by the heirs in this case. As per para 15 of the assessment order, the issue was referred to DVO and based on the computation contained in para 16 of assessment order the LTCG is computed at Rs.5,76,16,800/-. If the total amount of Sr.No.4 to 6 above is deducted (Rs.4,57,24,000/- as per evidence on record) from the computation of LTCG based on DVO, then the four heirs have to be taxed at Rs.1,18,92,800/-. The difference of opinion between appellant and the AO is because of jantri value of Rs.6,00,49,300/- has been taken by the AO as total sale consideration as per specific provisions of section 50C of IT Act, 1961. I also don't find any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough Banakhat in the year 2000. The father of the assessee, Mr. Ganpatbhai Patel admittedly received a sum of Rs. 53,26,000/- in cash, but there is nothing on record to show that the possession in the afore-said was transferred to Mr. Hamad Ali pursuant to entering of Banakhat in 2000. Further, as noted above, the terms and conditions of Banakhat entered into in the year 2000 find no mention in the subsequent registered sale deed entered during the year under consideration. The final registered sale deed was executed on 28- 07-2011. Recently the Hon'ble Supreme Court in the case of PCIT v. Chuni Lal Bhagat[2019] 103 taxmann.com 379 (SC) held that where High Court upheld Tribunal's order holding that in absence of registration of Joint Development Agreement (JDA) entered into by assessee with a builder, provisions of section 2(47)(v) would not apply, SLP filed against said decision was to be dismissed. The facts of the case were that assessee was owner of a piece of land. During relevant year, assessee entered into Joint Development Agreement (JDA) of said land with a developer. In part performance of contract, assessee handed over possession of immovable property to develo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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