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Income Tax Appellate Tribunal, JAIPUR BENCHES ‘B’ JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 1365/JP/2018
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES ‘B’ JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 1365/JP/2018 fu/kZkj.k o"kZ@Assessment Year :2009-10 cuke Smt. Santosh Devi ITO, Vs. W/o Shri Ramjilal Jat, Sikar VPO- Srimadhopur, Distt.- Sikar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: DIXPS2756B vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Mahendra Gargieya (Adv.) jktLo dh vksj ls@ Revenue by : Shri K. C. Gupta (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 06/01/2020 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 07/01/2020 vkns'k@ ORDER PER: VIKRAM SINGH YADAV, A.M.
This is an appeal filed by the assessee against the order of ld. CIT(A)-3, Jaipur dated 02.11.2018 wherein the assessee has taken the following grounds of appeal:- “1. The initiation of proceedings u/s 147 of the Act is bad in law and on facts of the case, for want of jurisdiction and hence, the same kindly be quashed. Resultantly, the impugned order u/s 143(3)/148 dated 20.03.2013 be also quashed.
2. The impugned additions and disallowance made in the order u/s 143(3)/148 dated 20.03.2013 are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be deleted.
3. The ld. CIT(A) erred in law as well as on the facts of the case in confirming the addition made by the AO of Rs. 9,03,260/- on account of Short Term Capital Gain (for short “STCG”) by adopting sale value at Rs. Smt. Santosh Devi, Sikar Vs. ITO, Sikar 12,03,260/- instead of Rs. 3,00,000/- declared by the appellant by invoking Sec. 50C of the Act. The addition so made and confirmed by the ld.CIT(A) being contrary to the provisions of law and facts, the same kindly be deleted.
4. The ld. CIT(A) erred in law as well as on the facts of the case in not considering the comparable cases and objections raised by the appellant before the AO u/s 50C(2) of the Act and therefore, the addition so made and confirmed by the ld. CIT(A) kindly be deleted in full.”
During the course of hearing, the ld. AR has not pressed the ground Nos. 1 and 2 for which the DR has raised no objection. Hence, the same are dismissed as not pressed.
Regarding Ground Nos. 3 and 4, the ld. AR took us through the findings of the Assessing Officer which reads as under:-
“Capital gain from sale of Land: On examination of sale deed submitted seen that during the year under consideration the assessee has sold a land located at village Srimadhopur, Patwar halka Srimadhopur, Teh. Srimadhopur, Distt. Khasra No 1339, 1342,1343,1352, 1357 & 1358. On examination of purchasek,i deed it was seen that the land was purchased on 05.1-0.2007 by the assessee along with other four persons from Shri Sukha Ram, S/o Shri Budha Ram resident Ward No.3, Dhani Swamiwali, Srimadhopur. The assessee was having 1/5th share in land purchased. The land was purchased for total of Rs 13,00,000/-. assessee as per her share has paid a sum of Rs 2,76,374/- for the purchase. Later or ie assessee sold her share of land (i.e 1/5th) on 20-05-2008 for a consideration of Rs 3,00,000/- to Smt Santosh Devi, W/o Shri Rajendra Singh resident of village Kalyanpura, Teh. Srimadhopur. Further on examination of sale deed it was seen that the Stamp Valuation Authority, Srimadhopur adopted the sale value of the land 2 Smt. Santosh Devi, Sikar Vs. ITO, Sikar at Rs. 12,03,260/- for stamp purposes. Further, it was noticed that the assessee Rs. 3,00,000/- only and thus there was difference in the value of sale consideration and the value adopted by the Stamp Valuation Authority. Before proceeding further it is pertinent to see the provisions of Section 50C of the IT Act, which reads 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, being land or building or both, is less t value adopted or assessed 21 [or assessable] by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such tranqfc the value so adopted or assessed [or assessable] shall, for the purposes section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer. ' In view of Section 50C of the It Act, 1961, the assessee vide order sheet entry dated 18-03-13 was given a show cause as to why not the sale consideration 12,03,260/- as adopted by the Stamp Valuation authority may be taken computing capital gain and tax thereon.The assessee submitted the submission vide letter dated 20-03-13, placed on record.
The reply of the assessee has been considered but not found acceptable. assessee has stated that "that the said agriculture land was actually sold of Rs. 3,00,000/-instead of Rs 12,03,260/-by the assessee. I humbly request the sale valuation of the land may be considered on Rs 3,00,000/-. The sub registrar has wrongly calculated the valuation on the said agriculture land. For which the discrepancy of the registration charges & valuation on the said agriculture land, the assessee has filed the appeal in Revenue Board, Ajmer against Sub Registrar-Srimadhopur. The copy of appeal tiled Smt. Santosh Devi, Sikar Vs. ITO, Sikar submitted is placed on record. The assessee has u submitted any copy of decision and outcome of the appeal so filed which rileati that the decision of the appeal filed by the assessee is still pending on the date. Therefore the submission of the assessee to consider the sale value at Rs 3,00,000/- only is not acceptable.
Therefore in view of the provisions of sec SOC, it becomes clear that the DLC value shall be taken as full value of consideration for calculating capital gain, if the sales consideration on account of sale of a capital asset being land/building or both 12,03,260/- for the purposes of calculating capital gain. The capital gain thus is worked out at Rs. 9,26,886/-. The assessee has shown capital gain of Rs. 23,626/- only therefore, difference in both the values which comes to Rs. 9,03,260/- is added back to the income of the assessee as per provisions of section 50C.”
Further, he took us through the findings of the ld. CIT(A) which reads as under:-
I perused the record I find that there is no force in the submission of the A/R of the appellant that the DLC rate taken by the Assessing officer higher. This argument of the A/R is not tenable because the A/R of the appellant provide sale deed of the nearby land were executed in the F.Y. 2010-11 and the appellant sale deed was executed in F.Y. 2008-09. Further it is also find that the appellant filed the appeal before the Revenue Board, the board has cancelled the said appellant and the appellant not file any appeal against this value adopted by the sub registrar of Rs.12,03,260/-. It prove that the appellant accepted the sales consideration of Rs.12,03,260/-. This is very important to mention here that GHASRA No.1339, 1343 and 1342/1 are situated on the road. Therefore the value of land situated on road are very higher. 4 Smt. Santosh Devi, Sikar Vs. ITO, Sikar Hence the example cited by the appellant that DLC rate was taken by the other case are below is not relevant. Therefore I am the view that the Assessing officer rightly computed Short Term Capital Gain of Rs. 9,03,260/- taking the value of land of Rs. 12,03,260/-. Accordingly I confirm the addition made by the Assessing Officer of Rs. 12,03,260/-. These grounds are not allowed.
It was submitted by the ld AR that the assessee has objected to the valuation adopted by the stamp duty authority before the AO and therefore, the matter should have been referred by the AO to the DVO for determination of fair market value. Since the Assessing Officer has not referred the matter to the DVO, the matter may be set aside to the file of the Assessing Officer for determination of fair market value.
Per contra, the ld. DR relied on the findings of the Assessing Officer and submitted that the assessee has not made any specific request for reference of the matter to the DVO. Therefore, in absence thereof, the Assessing Officer was not required to refer the matter to the DVO. He accordingly supported the findings of the Assessing Officer.
We have heard the rival contentions and perused the material available on record. The assessee has sold her 1/5th share of land for a consideration of Rs. 3,00,000/- whereas the registering authority has considered the sale value at Rs. 12,03,260/- for the purpose of stamp duty. During the course of assessment proceedings, the assessee was issued a show cause notice and in response, the assessee objected to the stamp duty valuation of Rs. 12,03,260/- and requested to adopt value of Rs. 3,00,000/- as per the sale deed dated 20.05.2008. Therefore, where the assessee has objected to the stamp duty violation, as per the provisions of section 50C(2) of the Act, the matter should 5 Smt. Santosh Devi, Sikar Vs. ITO, Sikar have been referred by the Assessing Officer to the DVO for determination of fair market value. In the instant case, as the matter has not been referred to the DVO, we deem it appropriate to set aside the matter to file of the Assessing Officer for referring to DVO to determine the fair market value of the land in question and decided as per law.
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 07/01/2020.