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आदेश/Order
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 22.3.2019 of the Commissioner of Income Tax(Appeals)-4, Ludhiana [hereinafter referred to as ‘CIT(A)’].
In this appeal, the assessee has raised following grounds of appeal:-
1. The learned CIT (Appeals) has erred in law and facts in confirming an addition of Rs. 1,30,33,870/- made by AO as long term capital gain on sale of agriculture land by holding the transfer of land in the year under consideration despite the fact that only 10% of the -C-2019- Sh Jaswinder Singh, Ambala Cantt. 2 sale consideration was received during the year and balance 90% consideration was received on 30.06.2008 i.e. AY 2009-10.
2. That learned CIT (Appeals) has erred in law and facts in confirming the actions of the AO of not allowing the benefit of investments in new agriculture land amounting Rs. 1,16,49,865/- u/s 54B invested subsequent to the receipt of money against sale of agriculture land.
3. That learned CIT (Appeals) has erred in law and facts in confirming the actions of the AO of adopting indexed cost of land acquisition of the land as of 1-4-1981 at Rs. 2,63,415/-.
4. That the learned CIT(A) has erred in law and on facts by confirming the actions of the AO in reopening the assessment u/s 148.
That Appellant craves leave to add, alter, amend or to substitute the above grounds of appeal either before or at the time of hearing of case.
3. Ground No.4 : At the outset, Ld. Counsel for the assessee has submitted that he does not press ground No.4 of the appeal, Ground No.4 of the appeal is, therefore, dismissed as not pressed.
Ground Nos. 1 to 3: Brief facts relating to the issue are that the 4.
Assessing Officer observed that as per information available with his office, the assessee had sold land measuring 54 Kanal 13 Marla to M/s Swarg Sukh Buildhome Pvt Ltd for a total consideration of Rs. 3,75,71,875/- on 4.4.2007 and land measuring 13 Kanal 10 Marla to M/s Amit Jain Builders Pvt Ltd for a total consideration of Rs. 92,81,250/- on 13.4.2007. The Assessing Officer, however, held that since the land -C-2019- Sh Jaswinder Singh, Ambala Cantt. 3 sold was situated within the M.C. limit of Jagadhari, the assessee was liable for Capital Gain Tax. He, therefore, reopened the assessment of the assessee u/s 147 of the Income Tax Act, 1961 (in short 'the Act') and show caused the assessee as to why the Capital Gains earned on the sales of the property be not subjected to Capital Gains tax. In reply, the assessee contended that the land sold was ancestral property of the assessee and, therefore, the said property belonged to 'HUF' of the assessee and that the notice u/s 148 and assessment u/s 147 of the Act should have been issued / framed in the name of the 'HUF'. That the notice as well as assessment proceedings in the name of the assessee were bad in law. However, the said contention was rejected by the Assessing Officer. The Assessing Officer, thereafter, assessed the capital gains at Rs. 2,30,33,870/-
5. Being aggrieved by the said order, the assessee preferred appeal before the Ld. CIT(A). Before the Ld. CIT(A), the assessee did not press the issue that the land belonged to the 'HUF', therefore, this ground was dismissed by the CIT(A) as ‘not pressed’. However, another plea was taken that the proceeds of the sale of the land were invested in the purchase of another agricultural land, therefore, exemption from capital gains tax was claimed u/s 54B of the Act. However, the said claim of the assessee was rejected by the Ld. CIT(A) observing that the immovable property was purchased by the assessee beyond the due date -C-2019- Sh Jaswinder Singh, Ambala Cantt. 4 of filing of the Income Tax return. The assessee had not furnished any evidence with regard to the deposit of sale proceeds in the Capital Gains account scheme. Even the assessee had not filed Income tax return for the assessment year 2008-09. It was further observed that the said claim of deduction u/s 54B of the Act was not made in the return of income, therefore, the said claim was not tenable in appellate proceedings. The Ld. CIT(A), therefore, dismissed the appeal of the assessee.
Being aggrieved by the above order of the CIT(A), the assessee has come in appeal before us.
We have heard the rival contentions of the Ld. Authorized Representatives of both the parties and also have gone through the record. At the outset, the Ld. Counsel for the assessee has submitted that the issue involved in this appeal is squarely covered by the decision of the Tribunal dated 9.4.2018 in the case of ‘Shri Sheo Ram, Jagadhari vs ITO’ wherein, in identical circumstances, the Tribunal considering the decision of the Hon'ble jurisdictional High Court in the case of ‘Tejinder Kumar and another vs State of Haryana and others’ CWP No. 1908 of 2009 decided on 5.2.2009 and further considering the decision of the Coordinate Bench of the Tribunal in the case of ‘Rajiv Kumar vs ITO’ in ITA No. 17/Chd/2016 order dated 29.6.2016 observed that in identical facts and circumstances in the case -C-2019- Sh Jaswinder Singh, Ambala Cantt. 5 of other persons also, the sellers / farmers who had sold the land to the purchasers, as named above, had received only part payment of 10% of the entire consideration in the financial year 2007-08 and the remaining consideration was withheld by the builder. The sellers so duped by the builder, had approached the Hon'ble Punjab & Haryana High Court and the Hon'ble High Court vide order dated 5.2.2009 (supra) had ordered an investigation into the matter and after considering the report of the Inspector had directed the builder to make the payment of the balance arrears to the sellers / farmers which was paid by the builder in the subsequent years. The Tribunal considering the aforesaid facts in the said case has restored the matter to the file of the Assessing Officer for the limited purpose of enabling the assessee to establish the similarity of the facts of the case with that of the case of Shri Rajiv Kumar (supra) and directed the Assessing Officer to verify the claim of the assessee in this regard and thereafter to pass and order in accordance with law. The issue relating to the claim of deduction u/s 54B and 54F of the Act was also restored to the file of the Assessing Officer to be adjudicated upon afresh after deciding the main issue of the year of taxability of the capital gains.
The relevant part of the order of the Tribunal in the case of “Sheo Ram vs ITO’ (supra) is reproduced as under;- -C-2019- Sh Jaswinder Singh, Ambala Cantt. 6
“10. Further, Challenging the action of the CIT(Appeals) in confirming the addition of Rs.3,68,96,060/- made by the Assessing Officer as Long Term Capital Gains earned by the assessee during the impugned year on account of sale of land, in ground No.1, the Ld. counsel for assessee during the course of hearing before us stated that the issue was squarely covered by the judgment of the Chandigarh Bench of the I.T.A.T. in group of cases with the lead case being Shri Rajiv Kumar Vs. ITO in dated 29.6.2016 and which decision was subsequently followed in the case of Sh.Purshottam Kumar, Smt.Payal Kumari and Sh.Parveen Kumar Vs. ITO, Ward ,1,Yamunanagar in ITA No 968 to 971/Chd/2014 & 1185/Chd/2012 dated 17-08-16.Copies of both the orders were placed before us. Drawing our attention to the order passed in the case of Rajiv Kumar (supra), Ld.Counsel for the assessee stated that in the said case also the facts were identical with that of the assessee wherein the land was acquired by builders making only part payment of around 10% of the entire consideration and promising to pay the balance vide undated cheque and getting the sale deed registered in their favour. It was pointed out that in the said case it was brought to the notice of the Bench that the builders had tried to dupe innocent agriculturists in this manner by acquiring their lands by making meager payment of the aggregate sale consideration, promising to pay the balance in future, which in fact was never paid to the agriculturists. It was pointed out that the agriculturists on being so duped had filed case before the Hon'ble Punjab & Haryana High Court who had ordered an investigation in the matter and after considering the report of the investigator had directed the Builders to make payment of the balance amount to the agriculturists, which was paid and thus realized by the assessee only in the succeeding year. It was pointed out to the Bench in the said case that in the year when the sale deed was registered the intention of the buyers was clearly not to make payment of the entire agreed amount. It was also pointed out that it was agreed to handover the possession only when the complete payment was made to the sellers on failure of which the sale deed would be cancelled. The Ld. counsel for assessee pointed out from the order that taking note of these averments made before it and considering the evidences placed before it substantiating the stated facts, the I.T.A.T. held that the transfer could not be said to have taken place in the impugned year but only when the final payment was received by the assessee. It was pointed out that the I.T.A.T. on this basis deleted the addition made by the Assessing Officer of the entire capital gains in the year of registration of the sale deed. The Ld. counsel for assessee stated that the facts in the present case were identical to that in the case of Rajiv Kumar & Others (supra), Purshottam Kumar & Tejinder Kumar and a chart pointing out identical facts was placed before us as under:
-C-2019- Sh Jaswinder Singh, Ambala Cantt. 7
No PARTICULARS Facts of Rajiv Facts of Facts of Facts of . Kumar Purshotam Sheo Ram 17/CHD/2016 Kumar Kumar ITA ITA No.968 & No.19/CHD/ 969/CHD/20 2016 14 1. Date of 20-3-2007 20-3-2007 20-3-2007 20-3-2007 Registration of Sale Deed 2. Total value of sale 5,50,00,000 5,44,15,625 2,95,28,125 3,75,97,656 consideration 3. Date of Receipt of 25-3-2007 15-3-2007 20-3-2007 15-3-07 Advance Payment 4. Amount of Receipt 50,00,000 4946875 2693375 32,67,969 of Advance Payment 6. Date of Receipt of 16-6-2008 15-6-2008 16-6-2008 14-8-2008 Final Payment 7 Amount of Final 5,00,00,000 4,94,68,750 2,68,43,750 3,41,79,688 Payment 8 Clause in Sale Yes Yes Yes Yes Deed that in case of cheque not encashed sale deed will be cancelled 9 Writ Petition filed No but petition Yes No but No but before Punjab & filed by petition filed petition filed Haryana High Tajinder Kumar by Tajinder by Tajinder Court in Criminal Kumar in Kumar in Misc. No. Criminal Criminal 36372-M Misc. No. Misc. No. decided on 36372-M 36372-M 31-5-07 by decided on decided on P&H HC matter 31-5-07 by 31-5-07 by was referred to P&H HC P&H HC SP Ynr and matter was matter was further in CWP referred to SP referred to 1908 of 2009 a Ynr and SP Ynr and SIT was formed further in further in under ADGP CWP 1908 of CWP 1908 Crime Branch 2009 a SIT of 2009 a to cover all was formed SIT was farmers with a under ADGP formed direction to the Crime under ADGP Collector by Branch to Crime Court to cover all Branch to prevent third Farmers with cover all party rights on a direction to farmers with land or the farmers a direction dispossession with a to the of farmers to direction to Collector by whom full sale the Collector Court to consideration by Court to prevent has not been prevent third third party paid. party rights rights on on land or land or dispossession dispossessio of farmers to n of farmers whom full to whom full sale sale consideration consideratio has not been n has not paid. been paid. 10 Date of Mutation of 31-3-2007 31-3-2017 31-3-2017 31-3-2017 Land in favour of -C-2019- Sh Jaswinder Singh, Ambala Cantt. 8
Buyer 11 Date of Handing 16-6-2008 15-6-2008 16-6-2008 14-8-2008 over of Possession to buyer Company as evident from P&H HC order in CWP 1908 of 2009 dated 5-2-2009
The Ld. counsel for assessee, therefore, stated that the issue was covered in favour of the assessee in view of the aforesaid judgment of the I.T.A.T in the case of Rajiv Kumar(supra) & Purshottam Kumar(supra).
The Ld. DR per contra, however, pointed out the following distinguishing facts in the present case with that in the case of Rajiv Kumar (supra): 1) In the case of Rajiv Kumar (supra), on the day the sale deed was registered i.e. 20.3.2007, the buyers had executed an affidavit which was duly attested by the Executive Magistrate, Jagadhri in which the buyers had specifically affirmed that the sale deed of the land had been registered but the spot possession would be given at the time when the company would be making the total payment of the post dated cheque of the assessee. That in the case of assessee there is no such fact on record but in fact as per the facts brought out in the assessment order and the CIT(Appeals)’s order, the possession of the land had also been handed over to the buyers as per the sale deed executed. 2) That no evidence had been brought on record by the assessee that the assessee’s land was also covered in the civil case which was filed before the Hon’ble High Court wherein direction was given by the Hon’ble High Court, after constituting an SIT on the issue, to the buyers to make payment of the balance amount to the sellers of the land. 13. At this juncture, the Ld. counsel for assessee admitted that factual finding with regard to the assessees land being included and covered in the disputed lands before the High Court, were not available on record but at the same time, contended that the same could be established by the assessee by placing relevant material and evidence on record subject to verification by the department of the same. The Ld. counsel for assessee requested, therefore, that the issue be restored to the Assessing Officer so as to enable the assessee to establish the identity of the facts of the present case with that in the case of Rajiv Kumar (supra). As for the affidavit regarding postponement of handing over of possession of -C-2019- Sh Jaswinder Singh, Ambala Cantt. 9 land by the sellers to the buyers only on receipt of complete consideration, the Ld. counsel for assessee stated that no such affidavit was filed in the case of Parshotam Kumar which was also an identical case decided on the lines of Rajiv Kumar(supra) following the said decision.
The Ld. DR did not object to the request of the Ld.Counsel for the assessee.
Considering the above, in the interest of justice, we restore the issue back to the Assessing Officer for the limited purpose of enabling the assessee to establish the identity of the facts of the present case with that in the case of Rajiv Kumar(supra) and Purshotam Kumar (supra) and direct the Assessing Officer to verify the claim of the assessee in this regard and thereafter pass an order in accordance with law. This ground of appeal
is, therefore, allowed for statistical purposes.
16. In view of the restoration of ground of charging of entire capital gain to tax in the impugned year to the Assessing Officer, we find that the remaining grounds i.e. Ground No.2 to 4, with regard to the claim of exemption u/s 54B & 54F of the Act, considering fair market value of property and relating to grant of benefit of cost of improvement of land, cannot be adjudicated at this juncture. These issues are, therefore, also restored to the Assessing Officer to be adjudicated upon afresh after deciding the main issue in the present appeal as per our directions with regard to ground No.1 raised by the assessee. The grounds of appeal Nos.2 to 4 are also, therefore, allowed for statistical purposes.
17. In the result, the appeal of the assessee is partly allowed for statistical purposes.”
The Ld. DR has also submitted that the matter be restored to the file of the Assessing Officer for verification of the facts and that if facts of this case are identical to that of the case of Shri Rajiv Kuma (supra), the matter be decided as per the findings arrived at in the case of Shri Rajiv kumar (supra). -C-2019- Sh Jaswinder Singh, Ambala Cantt. 10
Considering the rival submissions of both the parties, the issue of the relevant year of the taxability and the consequent deduction claimed u/s 54B / 54F is restored to the file of the Assessing Officer with identical directions as given vide order dated 9.4.2018 (supra) as reproduced above.
11. So far as the contention that the land belonged to the ‘'HUF'’ and not to the assessee, we are not convinced with the said contention of the assessee. The land was in the name assessee in individual capacity and the same was sold to the builder by the assessee in his individual capacity as there was no mentioned that the land was being sold by the assessee as Karta of 'HUF'. Further, the proceeds of the sale were also deposited/ retained by the assessee in his individual capacity and further the land so purchased out of the proceeds of the sale was also in the name of the assessee in individual capacity. In view of this, the plea that the income / capital gains should have been assessed in the name of the 'HUF' seems to be an afterthought. Moreover, the issue relating to the 'HUF' has not been pressed before the Ld. CIT(A). This issue is accordingly decided against the assessee.
It is further clarified that if the assessee has been able to demonstrate that the major portion of the proceeds of sales, as alleged by the assessee, was in the subsequent year and the land was purchased out of the sale proceeds of the assessee, then in that event, the condition -C-2019- Sh Jaswinder Singh, Ambala Cantt. 11 of depositing the amount of sale proceeds in Capital Gain account would not be applicable being impossible in the given circumstances as the assessee could not have expected to deposit of sale proceeds in the Capital gains account which, in fact, had not been actually received by the assessee. Under the circumstances, if the assessee upon receipt of the major part of the sale proceeds has invested the same for the purchase of agricultural land, as contended, the assessee, in our view, would be eligible for grant of deduction u/s 54B of the Act.
With the above observations, the matter is restored to the file of the Assessing Officer, as directed above.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Open Court on 22.10.2020.