TMI Blog2023 (7) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to produce Smt. Asha Tambi. Thus the affidavit filed by the assessee is not controverted. Hon ble Supreme Court in case of Mehta Parikh Co. [ 1956 (5) TMI 4 - SUPREME COURT ] has held that the rejection of affidavit filed by the assessee is not justified unless the deponent has either been discredited in cross examination or has failed to produce other supporting evidence when called upon to do so. On the direction of Bench the legal heir of assessee also filed affidavit of Daughter in law where also she affirmed that his father-in-law executed the sale deed instead of gift deed and that she has not paid the amount of Rs. 3 lacs as mentioned in the sale deed. We are of the view that no capital gain can be computed in respect of the sale deed executed in favour of Daughter in law Smt. Asha Tambi as it is only a gift to close relative and not a sale and, therefore, Ground No. 1 is allowed. - ITA. No. 18/JP/2023 - - - Dated:- 14-6-2023 - Dr. S. Seethalakshmi, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Shri P.C. Parwal, C.A. For the Revenue : Mrs Monisha Choudhary, Addl.CIT ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plot Nol. 32, Desh Bhushan Nagar, Galta Gate, Jaipur. It is worthwhile to mention that the fact relating to Plot No. 32, situated at Dehbhushan Nagar, Galta Gate, Jaipur measuring 266.66 sq. ft is that this plot was allotted to Shri Chote Lal Jain by Jawaharpuri Bhawan Nirmam Sahakari Samiti Ltd. Shri Chote Lal Jasin sold this plot to Shri Ghanshyam Tambi for Rs. 4.00 lacs vide agreement dated 30-12-1998 (PB Page 8 to 12) and gave power of attorney (POA) to brother of Shri Ghanshyam Tambi i.e. the assessee (PB Page 13 to 17). On the basis of such power of attorney, a part of plot measuring 128.88 sq. yard was sold for Rs. 4.00 lacs to Shri Atal Behari vide sale deed dated 15-03-2008 (PB Page 18-29) which was valued by the Sub-Registrar at Rs. 5,92,625/-. The sale consideration so received was used for construction on part of remaining plot. In response to notice u/s 148 of the Act, the assessee filed the return on 16-06-2015 (PB Page 9-10) declaring long term capital gain of Rs. 94,695/- as under:- Sales Consideration Rs.5,92,625/- Less:-Indexed cost of acquisition Rs.3,01,289/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this is a mere assertion of the assessee and is not supported by any evidence. The sale deed in question is duly executed in front of the Sub-registrar and stamp duty of Rs. 39,970/- and registration fee of Rs. 6,920/- has also been paid by the assessee or his daughter-in-law. The affidavit given by the assessee is just an afterthought. Further if the contention of assessee that deduction u/s 54F should be calculated using the actual consideration and not the deemed value taken as per section 50C of the Act is allowed then the deduction claimed u/s 54F will be reduced. Taking the actual consideration the assessee has calculated the deduction u/s 54F at Rs. 1,96,641/-. This should be the deduction allowable to the assessee but as against this the AO has computed and allowed the deduction at Rs. 2,43,618/- which is more than that claimed by the assessee. Perhaps the assessee is of the opinion that in a single computation, two different values of the sales consideration should be taken the deemed value u/s 50C in the numerator and the actual consideration in the denominator. This plea, on the face of it, is totally illogical and hence is rejected. 2.3 During the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch receipt is a liability not an income so far the assessee is concerned. Since, the Revenue has not brought any material on record suggesting that this power of attorney was executed in lieu of a consideration. In the absence of such material, purely, on the basis of presumption and suspicion tax liability cannot be fastened on such receipt on the assessee. Hence, the AO is directed to delete the addition however, he is free to take action against the real owners as per law. Sh. SurajNarainKhatoriaVs. ITO ITA No.1043/JP/11 order dt.27.05.2013 (Jaipur) (Trib.) The relevant findings at Para 11 to 13 are as under:- 11. We have heard parties with reference to material on record. Shri Bharat Singh, S/o- Shri Moti Singh and Shri Vijay Pal Singh, S/o- Shri Bharat Singh Choudhary by a registered power of attorney dated 13/11/2006 appointed ShriSuraj Narayan, son of ShriNarain Singh Khatoria as their power of attorney in respect of 0.30 hect. of agricultural land situated in khasra No. 13 at village Bhakrota for getting the revenue record corrected in that respect and after getting its mutation in their name, sell this land to any person on their behalf and his acts were binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediately after execution of sale deed or even up to the time of enquiries made by the Assessing Officer. The appellant, thus, being neither owner nor a deemed owner of the said capital asset, the said capital asset cannot be taken as property of the appellant. The sale consideration of the aforesaid land, therefore, could not be a subject matter of transfer of his own capital asset. The Income Tax Department has also not assessed him as a representative assessee or an agent of the said Shri Bharat Singh and Shri Vijay Pal Singh and as such question of making assessment of income from capital gains by application of provisions of Section 50-C of the Act adopting full value of consideration at Rs. 42 lacs in his hands, is neither justified nor called for. The authorities below, therefore, have erred in bringing to tax the income from capital gains in his hand though the same may be a subject matter of taxation in the hands of the real owners. In this view of the matter, the addition so made being unjust and uncalled for, the same is directed to be deleted. CIT Vs. C. Sugumaran (2014) 113 DTR 35 (Mad.) (HC) Assessee, an individual was a power agent of M, who was actual owner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .38 sq. yds to his daughter in law Smt. AshaTambi is in fact a gift but the document was wrongly executed as sale deed (PB 11-23). Sales consideration of Rs. 3 lacs mentioned in the sale deed wasnever received by the assessee from his daughter in law. This fact was stated by the assessee in his affidavit dt. 14.11.2015 (PB 24-25) filed during assessment proceedings. Further the assessee vide letter dt. 23.11.2015 (PB 26) also stated that he can produce her daughter-in-law to confirm this fact.However, the assessee was neither required by the AO to produce Smt. AshaTambi nor AO issued any summon to Smt. AshaTambi. Hon ble Supreme Court in case of Mehta Parikh Co. Vs. CIT 30 ITR 181 at Pg 187 has held that the rejection of affidavit filed by the assessee is not justified unless the deponent has either been discredited in cross examination or has failed to produce other supporting evidence when called upon to do so.This is also reiterated by Hon ble ITAT, Jaipur Bench in case of Kuldeep Chand GargVs. ITO 37 Taxworld 127 where it held that contents of duly sworn and affirmed affidavit are to be accepted as such unless the deponents are examined to established otherwise. Therefore, si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matically that his case was that the fair market value of the property could not be Rs. 35 lakhs as assessed by the District Sub-Registrar. In a case of this nature the AO should in fairness have given an option to the assessee to have the valuation made by the DVO contemplated under s. 50C. As a matter of course, in all such cases the AO should give an option to the assessee to have the valuation made by the DVO. The legislature did not intend that the capital gain should be fixed merely on the basis of the valuation to be made by the District Sub-Registrar for the purpose of stamp duty. The legislature has taken care to provide adequate machinery to give a fair treatment to the citizen/taxpayer. There is no reason why the machinery provided by the legislature should not be used and the benefit thereof should be refused. Even in a case where no such prayer is made by the advocate representing the assessee, who may not have been properly instructed in law, the AO discharging a quasi-judicial function has the bounden duty to act fairly and to give a fair treatment by giving him an option to follow the course provided by law. The matter is remanded to the AO. He shall refer the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eemed as full value of consideration for the limited purposes of determining the income chargeable as capital gains under section 48 of the Act. Therefore, in the instant case, the provisions of section 54F(1)(a) are complied with by the assessee and the assessee shall be eligible for deduction in respect of the whole of the capital gains so computed under section 45 read with section 48 and section 50C of the Act. The provision of section 50C(1) of the Act are not applicable to section 54F for the purpose of determining the meaning of full value of consideration. Thus, deduction u/s 54F if calculated with reference to actual sales consideration comes to Rs. 4,47,021/- (4,00,000*7,82,287/7,00,000) as against Rs. 2,43,618/- computed by AO and thus, the long term capital gain works out to Rs. 3,35,266/- (782287-447021) as against Rs. 5,38,669/- worked out by AO and confirmed by Ld. CIT(A). 2.4 On the other hand, the ld. DR supported the order of the ld.CIT(A). 2.5 We have heard both the parties and perused the materials available on record. Without going on to the various contentions raised by the parties, the main issue in this appeal is whether the sale deed dated 24.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
