TMI Blog2022 (11) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... w of matter, issue was required to be answered in favour of assessee and against department-Assessee's appeal allowed - See Shankar Lal Sharma [ 2018 (1) TMI 1000 - RAJASTHAN HIGH COURT ] The assessee is eligible for claim of deduction u/s 54B and as per record and purchase deed the assessee had invested the amount of Rs.13,51,388/-( 1/4th of Rs.51,50,000/- purchase cost+2,55,550/- stamp duty). Amount which is to be invested for claiming the deduction u/s 54B for calculation the LTCG - whether according to actual sale consideration or as per DLC rate? - As no addition is required to be made on account of LTCG in the present case. As per decisions for claiming u/s 54B on account of LTCG, the assessee is required to invest the amount as per actual sale consideration and not as per DLC Rate. The assessee as per record i.e. sale deed and purchase deed had invested the amount of Rs.13,51,388/-( 1/4th of 51,50,000/- purchase cost + 2,55.550/- stamp duty) u/s 54B of the Act in purchase of new assets i.e. agriculture land while the actual LTCG was of Rs.6,71,250/-, which was to be invested by the assessee. It shows that the assessee had invested more amount of Rs.13,51,388/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being heard in the gross breach of law. Hence the additions so made by the Id. AO may kindly be quashed and delete. 3.1 Rs.18,22,250/- : The Id. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the addition of Rs.18.22.250/- on account of Long Term Capital Gain on sale of sale of agriculture land which is otherwise exempt(being out of Municipal Limit applicable and not being a capital assets) and also erred in the action of the Id. AO in taking the higher value adopted by the Stamp Authority in place of actual sale consideration mentioned in sale deed and received by the assessee, while determining the LTCG. Hence the addition so made by the AO and confirmed by the Id. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the addition may kindly be deleted in full. 3.2 The Ld. CIT(A) has also grossly erred in law as well as on the facts of the case in confirming the action of the ld. AO in not allowing the deduction u/s 54B on the purchase of new assets for which the assessee is entitled. Hence the deduction so denied by the AO and confirmed by the Id. CIT(A) is being totally contrary to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.5,25,000/-. In the case of the assessee, the AO calculated the long term capital gain as under:- S.N. Particulars Cost of acquisition LTCG 1. Sale consideration 25,13,500/- 2. 3. Cost of property (assessee s share) a And Indexed cost of property 5,25,000/- (cost of property 4,75,000/- stamp duty -50,000/5,25,000x632/480 = 6,91,250 18,22,250/- Thus according to the AO, the long term capital comes to Rs.18,22,250/- and after proper verification of the above information from the record, the assessment proceedings u/s 147 of the Act for the assessment year under consideration was initiated by the AO after recording the reasons as well as taking prior approval of Pr. CIT-3, Jaipur vide her letter dated 17-03-2017. Thereafter, notice u/s 148 of the Act was issued on 17-03-2017 by the AO which was got served upon the assesee through Registered Post dated 20-03-2017 as well as physically on 30-03-2017. In compliance thereof, no return of income was filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee purchased the immovable property before the due date of filing of return of income or the amount of capital gain account should be deposited in capital gain account scheme where the assessee failed to follow the relevant concerned terms and conditions for deduction u/s 54B of the Act. Therefore, the AO did not allow deduction u/s 54B of the Act to the assesse. Thus after considering the facts and circumstances of the case, the income of the assessee is calculated by the AO as under:- 1. Income as per return not filed Rs.Nil 2. Long Term Capital Gain Rs.18,22,250/- Total Taxable income (LTCG) Rs.18,22,250/- 2.2 In first appeal, the ld. CIT(A) sustained the action of the AO by observing as under:- 5.3 The AO has recorded at page 3 of the assessment order that the appellant claimed the deduction u/s 54B of the Income Tax Act, 1961 against the agriculture land situated at Village-Chirada, Patwar halka-Khorashyamdas, Tehsil- Amer (Jaipur) was purchased by her alongwith other three partners from Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the detailed written submission and thus prayed to delete the addition confirmed by the ld. CIT(A). SUBMISSION:1. Correct facts: At the very outset we wants to bring correct facts before your honor which have been ignored by the ld. AO and ld. CIT(A) both despite available before them. The correct facts of the case are that the group of assessee s jointly (seven persons, in the ratio of 1/8th Suji devi in 1/4th) had purchased the agriculture land measuring 5.93 Hectares situated at Khasra No. 5295 in Village Patwar area/land record Reengus Tehsil Srimadhopur District Sikar for Rs.38,00,000/- and registry cost of Rs.4,00,000/- totaling to Rs.42,00,000/- on dt. 11.02.2005. Thereafter they have sold this land in two part one part by Smt. Santosh Devi, Smt. Suji Devi and Smt. Meera Devi for Rs. 43,50,000/- on dt. 17.03.2010 and other part by Smt. Prem Devi w/o Rameshwar, Smt. Prem W Devi /o Ramji Lal, Smt. Narangi Devi and Smt. Bhagwati Devi for Rs.54,50,000/- on dt. 23.02.2010. While charging stamp duty the Sub Registrar Palsana has valued the property at Rs.1,01,78,240/- and 1,00,54,000/- respectively. For your ready reference and at glance kindly see the below chart(Also subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal Jat , and Bhagwati the DLC rate has been adopted at Rs. 33,90,894/- per hect. i.e 1,00,54,000/- /2.965847723 per bhiga because 1 hect is equal to 4 bhiga However as per the Stamp Duty rate list of Sub Registrar Shrimadhopur the DLC rate for irrigated land was Rs. 3,94,500/- per bhiga and for unirrigated land was of Rs. 2,81,900/- per bhiga in the year 2009-10 the copy of the same are enclosed (PB 60-65) and as per this the total value of the entire lands comes of Rs.93,57,540/- (3,94,500X23.72) of irrigated and Rs. 66,86,668/- (28190X23.72) of unirrigated land respectively, while the assessee s had sold the land for Rs.98,00,000/- which is more than to the above rates. However despite the same details filed before the ld. CIT(A) he has not verified and asked the ld. AO, it means he has nothing with him to rebut the contention of the assessee. Both the lower authorities have ignored these vital facts and did not tried to know the actual DLC rate of the said land. Hence the LTCG on the entire lands comes only of Rs.42,70,000/- for all the assessee s as against Rs.1,47,02,240/-. We have failed to understand that how the DLC rate has been adopted by the Sub Registrar Palsana Sik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er following decision of the Honble Supreme Court and High Courts 3.1 In the case of CIT vs. Khandelwal Shringi Co.: (2017) 398 ITR 0420 (Raj) it has been held that Income from undisclosed sources-Unexplained investments- Purchase of agricultural land-Deletion of addition-Tribunal deleted addition made by AO on account of unexplained investment in purchase of agricultural land on basis of sale agreement and other documents found and impounded during course of survey u/s 133 in which sale consideration was specified amount-Held, while computing undisclosed income, rates of property fixed by Stamp Valuation Authority for purposes of registration of sale deeds, could not be taken to be price for which property was purchased-In absence of evidence on record, higher price for sale of land could not be presumed from consideration shown in registered sale deeds and rates of property fixed by Stamp Valuation Authority for registration purposes could not be taken to be price for which property might had been sold-There was no justification for AO to estimate selling price of land at Rs. 40 per sq.ft. instead of Rs. 20 per sq.ft. and for CIT(A) to presume selling price at 22 per sq.ft-T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary is proved and the burden of proving the contrary lies on the person who assessed/alleged it Kindly refer Daulat Ram Rawat Mull 87 ITR 349 (SC).. ACIT v/s Excellent Land Developers (P) Ltd. 1 ITR (Trib.) 563 3.5 In the case of Inderlok Hotels (P) Ltd v/s ITO 122 TTJ 145(Mum). Here also the position is very same because here assessee purchases a land and after conversion and developing in to plotting the same have been sold after making some profit. The lower authority nowhere alleged that the assets were sold in loss and he neither made any inquiry nor brought any evidence on record that the land sold on higher price than shown in sale deed. If he was having any doubt about the sale price of lands he could have made independent inquiry. The assessee has discharged onus lie upon him by producing the copies of sale deed. Now the onus was lies upon the revenue to disprove the same. 3.6 In CIT V/S Chandni Bhuchar 34 DTR 137(P H)- It has been held that valuation done by the any State Agency for The purpose of the stamp duty would not ipso fact substitute the actual sale consideration as being passed on the seller by the purchaser in the absence of any admissible evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of full value of the consideration has been given in s. 50C for the purpose of s. 48. One is entitled to ascertain the purpose for creating a statutory fiction. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end, it would be proper and even necessary to assume all those facts on which alone fiction can operate. The legislature in its wisdom has referred to s. 48 in s. 50C for adopting the same value as fair market value. Hence, the deeming fiction as provided in s. 50C in respect of the words full value of consideration is to be applied only for s. 48. The words full value of consideration as mentioned in other provisions of the Act are not governed by the meaning of full value of consideration as contained in s. 50C. The natural meaning of full value of consideration refers to consideration specified in the sale deed. Hence, for the meaning of full value of consideration as mentioned in different provisions of the Act except in s. 48, one will have to consider the full value of consideration as specified in sale deed.-CIT vs. Smt. Nilofer I. Singh (2009) 221 CTR (Del) 277 : (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e net consideration in respect of the original asset which has been transferred and where the net consideration is fully invested in the new asset, the whole of the capital gains shall not be charged under section 45 of the Act. The net consideration for the purposes of section 54F has been defined as the full value of the consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection with such transfer. In other words, the consideration which is actually received or accrued as a result of transfer has to be invested in the new asset. In the instant case, undisputedly, the consideration which has accrued to the assessee as per the sale deed is Rs 24,60,000 and the whole of the said consideration has been invested in the capital gains accounts scheme for purchase of the new house property which is again not been disputed by the Revenue. The consideration as determined under section 50C based on the stamp duty authority valuation is not a consideration which has been received by or has accrued to the assessee. Rather, it is a value which has been deemed as full value of consideration for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and also the said clause (a) of section 54F(1). The deeming fictional meaning of section 50C cannot be imported for the purpose of explaining the meaning of the net consideration mentioned in Explanation u/s 54F(1) of the Act. In effect, for working out the exempt income also, the deeming fiction does not have any effect in the circumstances where the cost of the new asset is not less than the net consideration whether computed as per the section 48 or 48 rws 50C. On this facts of the present case, where the assessee undisputedly invested 33 lakhs (1.4.06-31.3.2008) in toto and Rs 17,65,752/- (July 2006-march 2008) was invested during the specified period) mentioned in section 54F(1), considering the provisions of the clause (a), the assessee is not chargeable gains for taxation u/s 45 of the Act. It is noticed that the CIT(A) confirmed the addition on a couple of reasons, namely (a) the provisions of section 54F(1) does not permit invoking of the provisions of section 50C of the Act. Therefore, net consideration /full value consideration should be as per the sale deed figures and not as per the deemed full value consideration figures; and (b) the assessee is new asset i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Accordingly, the grounds raised by the assessee are allowed and in favour of the assessee. Also refer Prakash Karnawat v/s ITO 49 SOT587(Jp) where it has been held Capital gains-Valuation-Assessee sold property for Rs. 40 lakhs-AO took the value determined by DVO under s. 50C at Rs. 67.13 lakhs-AO reduced the indexed cost of Rs. 13.27 lakhs shown by the assessee and computed the long-term capital gain at Rs. 53.86 lakhs-Assessee had made investment of Rs. 40 lakhs in Bonds, therefore, the same was also reduced and the remaining amount of Rs. 13.86 lakhs was added to the income- Assessee challenged replacement of actual sales consideration by applying provisions of s. 50C-Deeming fiction as provided in s. 50C in respect of the word full value of consideration is to be applied only for s. 48-Since entire amount of sale consideration has been invested in bonds, therefore, provisions of s. 50C are not applicable-Further as assessee invested entire sale consideration of Rs. 40 lakhs in the bonds eligible for s. 54EC, he is entitled for deduction under s. 54F Hence the deduction should be allowed. 5. Investment after due date u/s 139(1) but before but date u/s 139(4): Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0th November, 2012 and the house was purchased on 30.10.2014. Therefore, the investment made by the assessee is within two years from the sale of the existing asset and is not beyond the stipulated period as provided under section 54F of the Act. The only objection raised by the AO and ld. CIT (A) is non deposit of amount in the Capital Gain Account Scheme. However, when the assessee has invested the amount within the stipulated period as provided under the provisions of section 54F, then the substantial requirement as per section 54F(1) is satisfied. The Hon ble Madras HighCourt in the case of CIT vs. Sardarmal Kothari (supra) Again in the case of Fathima Bai vs. ITO (supra), the Hon ble Karnataka High Court has reiterated its view that once the entire capital gain was utilized by the assessee by purchasing a house property before the extended due date under section 139(4), the exemption under section 54 would be allowable to the assessee. In view of the facts and circumstances of the case when the assessee has invested the amountwithin the stipulated period as prescribed under section 54F and in view of the various decisions cited supra, we decide this issue in favour of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from payment of income tax by retaining cash, then said amount was to be invested in Government account-If intention was not to retain cash but to invest in construction or any purchase of property and if such investment was made within period stipulated therein, then S. 54F(4) was not at all attracted. In the case of Manilal Dasbhai Makwana vs. ITO (2018) 172 ITD 0001 ((Ahmedabad-Trib)) held that Capital Gains-Capital gain on transfer of land used for agriculture purposes not to be charged in certain cases-Belated Return-Assessee was an agriculturist and filed his return of income belatedly-During scrutiny assessment, AO noticed that two parcels of agricultural land was purchased before sale of agricultural land-Similarly, another agricultural land was purchased after due date of filing return of income u/s 139(1)-AO was of a view that in terms of provisions of s. 54B(2), assessee was required to deposit capital gains in prescribed bank account before due date of filing return of income u/s 139(1)-However, assessee was failed to deposit capital gain in bank account as per requirements and therefore, AO disallowed claim of deduction u/s 54B-On appeal, CIT(A) allowed deduction u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ladies and belongs to rural area and farmers and these evidences goes to the root of the matter. Hence this is may be treated an application also u/r 46A . And the ld. CIT(A) has not speak a single word on these it means has admitted these evidences. GOA-1: Invalid action u/s 147/148 SUBMISSIONS ON LEGAL ISSUE OF 148/147: 1. No income escaped: Further it is submitted that the notice u/s 148 can be issued only when there is any escapement of income because S. 147 provides that If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, here the assessee has not escaped any income he has already calculated the LTCG and made investment u/s 54/54B, the AO has reopened the case on the basis of value adopted by the Stamp Collector for the purpose of stamp duty and not shown the transaction in the return which have not been filed. In which the value was adopted at Rs.1,01,78,240/ and 1,00,54,000/- on their own purpose as against actual sale consideration at Rs.43,50,000/- and 54,50,000/-. And for invoking the deeming provision of S. 50C the AO issued the notice u/s 147/148 and in this provision no esca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrowed, hence no notice u/s 147 can be issued on the borrowed information. And in the present case at the time of reasons even there was no sale deed in the hands of the ld. AO, there was only an information and information itself is not reason to believe. In the case of Mukesh Modi Ors. vs. DCIT 366 ITR 418 (Raj) held that Evasion of tax was menace to society but Assessee contributing to the exchequer in form of tax could not be allowed to suffer on mere pretence that it had evaded payment of tax. Rowing and fishing enquiry in hands of AO on mere suspicion or change of opinion could not satisfy expression reason to believe exposing Assessee for reopening of assessment. Notice for reopening of assessment was not in consonance and in conformity with under Section 147 and made specified notice vulnerable. High Court pointed that, reasons given by AO for issuance of notice for Re-assessment were not plausible and convincing. In fact order, where objections were rejected by AO, was not self-contained speaking order. Upon perusal of the order, it was amply clear that the same contains conclusions and is bereft of reasons.(para 12) Notices issued to Assessee by AO under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147. Here we would like to submit that how it can be said that the assessee actually received the excess amount than to mentioned in the sale deed, in want of any concrete material evidences. 5. Directly Covered Matter: Further the above mater is also directly covered by the decision In the case of ITO vs. Shiv Shakti Build Home (P) LTD. (2011) 141 TTJ 0123(Jodh) it has been held that the Inspector has only stated that though the assessee purchased the property @ Rs. 250 per sq. ft. in that area, the rate was from Rs. 500 to 600 per sq. ft. No details or any instances have been given in the said report. In any case this report could not be the basis for information of belief of the AO regarding escapement of income. There has to be nexus between formation of belief and escapement of income. In the present case, only valuation done by the stamp valuation authority and the Inspector s report have been taken as basis for formation of belief. There has to be reason for formation of belief and the reason should be such, from which prima facie it could be inferred that there is escapement of income. Every reason, if remotely connected with the issue, cannot be said to be a sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no such nexus exist herein. Therefore respectfully following the decision in the case of ITO v/s Shiv Shakti Build Home (P) Ltd (Supra), the grievance of the assessee by way of the modified additional ground taken is accepted and the initiation of the assessment proceedings is quashed. Recently followed by the Honble ITAT in the case of Sh. Jagdish Chandra Boriwal in ITA No. 216/JD/2017 dt. 01.08.2017. Here is the same position, thus above matter is directly covered by the decision of Jurisdictional ITAT. Once there is no income at all, there can t question of any escapement thereof. It was only suspicion on the part of AO. The above judicial guideline, do not support his case Hence the notice u/s 148 may kindly be quashed and oblige. 6. Further only on the basis of information or AIR information no proceedings can be initiated. In the case of Smt. Usha Agrawal v/s ITO in ITA No. 260/Agra/2018 dt.11.09.2018 it has been held that theAO based the reopening merely on the bare information received by him from the CBDT that the assessee had filed a declaration under the VDIS 1997, in which, he (sic-she) had declared an amount of Rs.10,02,948/- on 31.12.1997, but had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Act. The submission of the assessee is mentioned hereinabove. Further, the assessee with other 6 partners purchased the above sold property/land for Rs.38,00,000/- paying the stamp duty of Rs,4.00 lacs on 11-02-2005 in which the share of each lady was Rs.5,25,000/-. The AO has calculated the LTCG as under:- S.N. Particulars Cost of acquisition LTCG 1. Sale consideration 25,13,500/- 2. 3. Cost of property (assessee s share) a And Indexed cost of property 5,25,000/- (cost of property 4,75,000/- stamp duty -50,000/5,25,000x632/480 = 6,91,250 18,22,250/- The AO at page 3 of the assessment order noted that on 3-11-2017 the assessee submitted her submission which is not tenable/ acceptable because the assessee is covered u/s 50C of the Act. Therefore, the value of the property estimated by the Sub-Registrar, Palsana (Sikar) will be treated the cost of the property in place of face value declared in the sale deed. The AO has also declined the claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Appeal No. 153/2017 19th December, 2017 (2017) 100 CCH 0311 RajHC (2018) 253 TAXMAN 0308 (Rajasthan) where it has been held Deduction-Capital gains-Non deposition of net sale consideration-Rejection-Validity thereof-Assessee was picked up for scrutiny assessment and assessment was finalized u/s 143(3)- Assessee claimed for deduction-AO declined claim of deduction U/S 54B and 54F on ground that assessee had not deposited net sale consideration in capital gain account-CIT(A) set aside order of AO-Held, in case of in Fathima Bai v. ITO, it was held that extended due date u/s 139(4) would be 31.3.1990-Assessee did not file return within extended due date, but filed return on 27.2.2000- However,assessee had utilized entre capital gains by purchase of house property within stipulated period of section 54(2) i.e. before extended due date for return under section 139, assessee technically might have defaulted in not filing return u/s 139(4) But, however, utilized capital gains for purchase of property before extended due date u/s 139(4)-Deposit in scheme should have been made before initial due date and not extended due date was untenable contention-Reading of aforesaid sub-section would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested the amount of Rs.13,51,388/-( 1/4th of Rs.51,50,000/- purchase cost+2,55,550/- stamp duty). 2.6 Regarding the amount which is to be invested for claiming the deduction u/s 54B for calculation the LTCG, whether according to actual sale consideration or as per DLC rate. In this regard, on bare perusal of the Sec. 54B of the Act, the amount of capital gain is to be invested. As per AO, LTCG was of Rs. 18,22,250/- by taking the DLC Rate but as per assessee the same is of Rs.6,71,250/- as per sale deed. Now the question arises whether the actual LTCG should be as per sale consideration received or on the basis of DLC rate. To this effect, the ld. AR has drawn our attention to the following decisions. (a) Gyan Chand Batra V/S ITO 133 TTJ 482(JP) wherein it has been held that From sub-s. (1) of s. 50C, it is clear that in case the consideration received is less than the value adopted by stamp valuation authority then the value so adopted is to be taken as full value of the consideration for the purposes of s 48. Sec. 50C provides a deeming provision for considering the full value of consideration as the value adopted for stamp duty. In modern statutes, the expression 'de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value adopted by stamp registration authority. It is clearly mentioned in s. 54F(4) also that net consideration which is not appropriated towards the purchase of new asset the same is to be taxed in case such net consideration not appropriated is not deposited in the capital gain account. It is not necessary that the new asset should be got registered before filing of the return. The requirement of law is that net consideration is required to be appropriated towards the purchase of the new asset. Thus deduction under s. 54F is clearly applicable. Deeming provisions as mentioned in s. 50C will not be applicable to s. 54F so far as the meaning of full value of consideration is concerned as deeming provision mentioned in s. 50C is for specific asset and for the purpose of s. 48. Hence the assessee is entitled for deduction under s. 54F.-CIT vs. Ace Builders (P) Ltd. (2005) 195 CTR (Bom) (2006) 281 ITR 210 (Bom) and CIT vs. Assam Petroleum Industries (P) Ltd. (2003) 185 CTR (Gau) 71: (2003) 262 ITR 587 (Gau) applied. (b) The above decision followed in case of ITO v/s Raj Kumar Parashar 192 TTJ 603(JP)(2018) In ITA No. 11/jp/ 2016 dt. 28.09.2017 where it has been held that Where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held that it is to suggest that there is nothing to bar benefits of exemption u/s 54F in respect of the capital gains relatable to the FVC as per the deemed fiction u/s 50C of the Act. Clause (a) of section 54F(1) specifies that it the cost of the new asset is not less than the net consideration in respect of the original asset, there is no chargeable capital gains u/s 45 of the Act. In the instant case, the cost of the new asset is Rs. 17,65,752/- and net consideration as defined is the full value of the consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection with such transfer le Rs 16.87.000 as per sec 50C and Rs 8 lakhs as per the sale deed. The said clause (a) refers to the provisions of section 45 of the Act. In the given facts of the instant case, no chargeable capital gains arises u/s 45 of the Act. Thus, in this case, with investment of Rs. 17.65.752/- in new asset, the cost of the new asset is not less than the net consideration (NC) in respect of the original asset. Of course, the 'net consideration has two variants depending on FVC adopted and in this case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case, where the assessee's house constructed include ground plus 4floors. where the Ground floor is a big living room, 1st floor: Kitchen plus 2 bed room; 2nd floor: three bed rooms: 3rd floor: three bed rooms and 4th floor; 3bed rooms. Thus, the said details which are disputed by the revenue suggest that functionally, the assessee's house in question constitutes one residential house only. Therefore, the assessee's claim is in tune with the said SB decision in the case of Sushila M Jhavery (supra). CIT(A) restricting the exemption of capital gains to Rs 5,84,837 is not proper. Based on the factual matrix of the present case, where the assessee invested total full value consideration of Rs 16,87,000/ (as per the SRO) in the residential house, which is one house only as it has only one kitchen, and these FVC is less than the invested amounts of 17.65.752/-, during the specified period, the assessee is not chargeable to tax on the capital gains u/s 45 of the Act. Whether we compute the capital gains apply FVC as pr the sale deed or the deemed FVC as per the section 50c, the net consideration is less than the investment in one residential house. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee sold her share of the property for Rs. 13,62,500/-(1/4th of Rs.54,50.000/-) and the stamp authorities has taken the value at Rs.25,13,500/-(1/4 of 1,00,54,000/-). The assessee has submitted that she has not received excess sale consideration only the actual amount mentioned in the sale deed i.e. is Rs.13,62,000/-. It is further noted that one side the AO has taken the support of the value adopted by the Sub-Registrar and the other side the ld/ A/R submitted the DLC rate chart at PB 60 to 65 taken from the office of Sub-Registrar Shrimadhopur Sikar for DLC Rate of the property in the year under consideration for that area which comes to Rs.11,69,693/- (1/4th of Rs.46,78,772/-). In support of it, the assessee stated that the land was situated far off the road or after leaving one Khasra Number as mentioned in the sale deed (PB 8 22). The ld. AR stated that all these documents were also furnished before the lower authorities. According to ld. AR, wrong DLC Rate had been taken by the AO in place of actual DLC Rate looking to the above mentioned DLC Rate Chart (PB 60 to 65). As per ld. AR, the DLC Rate would have been charged by the AO as per the rate of property situated at Roa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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