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Income Tax Appellate Tribunal, “C” BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD & SHRI WASSEM AHMED
IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASSEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ With C.O. No. 110/Ahd/2016 (�नधा�रण वष� / Assessment Year: 2010-11) DCIT Smt Bijalben Vipulbhai बनाम/ Cir. 1(1)(1), A’ Wing, Haria Vs. Room No. 309, 3rd Floor, 2, Indraprastha Bunglow, Pratyakhsh Kar Bhavan, Opp Management Enclave, Ambawadi, Ahmedabad- Vastrapur, Ahmedbad- 380015 380015 Smt Bijalben Vipulbhai DCIT Haria Cir. 1(1)(1), A’ Wing, Room No. 309, 3rd Floor, 2, Indraprastha Bunglow, Opp Management Enclave, Pratyakhsh Kar Bhavan, Vastrapur, Ahmedbad-380015 Ambawadi, Ahmedabad- 380015 �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAC PH7 513 E (Appellant/Respondent) .. (Respondent/Cross Objector) अपीलाथ� ओर से /Appellant by : Shri L. P. Jain, Sr. DR, Shri Dhiren Shah, AR ��यथ� क� ओर से / Respondent by : सुनवाई क� तार�ख / Date of 13/06/2019 Hearing घोषणा क� तार�ख /Date of 05/09/2019 Pronouncement आदेश/O R D E R PER MAHAVIR PRASAD - JM:
This appeal has been preferred by the Revenue against the order of Ld. CIT(A)-VI/DCIT, Cir-1/146/2013-14 dated 29.03.2016 arising out of assessment order dated 26.03.2013. In the Revenue’s appeal assessee has also filed Cross Objection captioned above.
C.O. No. 110/Ahd/2016 [DCIT vs. Smt. Bijalben Vipulbhai Haria] A.Y. 2010-11 - 2 -
Facts of the case are that during the course of assessment proceeding Ld. AO received AIR information that assessee had sold three pieces of land during the previous year pertinent to A.Y. 2010- 11 to M/s. Aquest Estate Pvt. Ltd. The details of the same are as under:-
Sl. Total Sales Land detail No. consideration a. Survey No. 324/2 1,00,76,070 b. Survey No. 324/1 32,80,950 c. Survey No. 323 1,32,57,660
But Ld. AO was not agree with the contention and made disallowance u/s. 50C to the tune of Rs. 2,56,94,896/- against the said order thereafter assessee preferred first statutory appeal before the Ld. CIT(A) who allowed the appeal of the assessee.
Now Revenue has come before us by way of second statutory appeal.
We have gone through the relevant record and heard both the parties. The question before us is whether CIT(A) was justified in deleting the addition of Rs. 2,56,94,896/- made on account of 50C of the Act or not. Assessee purchased following properties in the name of M/s. Kirtikumar Kantilal Shah (HUF) during the period from F.Y. 1995-96 to 1999-00 for a total consideration of Rs. 12,76,493/-. The details of the purchase are as under:-
Sl. Survey No. Year of Particulars Amount Paid No. 1. 324/1 1995-96 Purchase of land 48,500 Maintenance 1996-97 10,870 Expenses 1997-98 Interest and 10,237 C.O. No. 110/Ahd/2016 [DCIT vs. Smt. Bijalben Vipulbhai Haria] A.Y. 2010-11 - 3 - service charges 1998-99 Interest 12,530 1999-00 Interest 19,726 And later of these properties above said properties were mortgaged with the Madhupura Mercantile Co. Op. Bank Ltd. against loan taken for their business purpose. Thereafter, she entered into a Banakhat (Agreement to Sell) with M/s. Radhe Infrastructure (india) Ltd. on 02 .05.2005 for sale of the lands at a consideration of Rs. 38,57,200/- and received an amount of Rs. 20,00,000/- towards the same of advance. However, as per the possession of agreement amount of Rs. 20,00,000/- was paid on30.04.2006 as per the agreement to sale dated 02.05.2005. The assessee was required get the title of the properties cleared and makes the same marketable. The final conveyance deed was to be carried out after conversion of the lands to non-agriculture land. However, the buyer was to bear all costs of such conversion. The second party in the Banakhat was to be confirming party when the land is finally sold at his instance. The assessee in the meanwhile was to get the charge of Madhupura Mercantile Co. Op. Bank Ltd. removed from the property and obtained a NOC from the bank in this regard. According to the assessee, the land was finally converted to non-agricultural use in the year under consideration and sold to ultimate buyer, Aquest Estate Pvt. Ltd. The conveyance deed was made by the assessee and Radhe Infrastructure (India) Ltd. was the confirming party. The total sales consideration was shared between the assessee and the confirming party in the following manner:-
Sl. Land Date of Total sale Owner Confirming No. details regd. Sale consideration (Smt Bijal party (Radhe document Haria) Infrastructure (I) Ltd.) i Land at 25.08.2009 1,00,76,070 19,21,400 1,13,36,260 survey no. 324/2 C.O. No. 110/Ahd/2016 [DCIT vs. Smt. Bijalben Vipulbhai Haria] A.Y. 2010-11 - 4 - ii Land at 25.08.2009 32,80,950 4,75,500 28,05,450 survey No. 324/1 iii Land at 25.08.2009 1,32,57,660 14,60,300 89,15,770 survey No. 323 2,66,14,680 38,57,200 2,27,57,480 And finally land was converted into non-agriculture land on 06.08.2009, just prior to its sale by executing the sale document on 25.08.2009. From the facts, it is clear that the said land which was an agriculture land on till 05.08.2009. The said land which was an agriculture land in 2006, could not be sold by the agriculturist to a non-agriculturist, in Gujarat as per the Bombay Tenancy and Agricultural Lands Act, 1948. The assessee sold the land in question for total consideration of Rs. 2,66,14,680/-. Out of which it is shown that the assessee received Rs. 38,57,200/- and balance is shown as received by the builder Aqeust Estate Pvt. Ltd. as confirming party. The Radhe Infrastructure Pvt. Ltd. and project received Rs. 2,27,57,480/- as confirming party to the conveyance deed executed by the assessee in favour of Acquest Estate Pvt. Ltd. and the same has been offered by the said company in the return of income filed for A.Y. 2010-11. When Acquest Estate Pvt. Ltd. has offered in its return of income that cannot be taxed in the hands of the assessee. In support of its contention assessee cited a judgment of Co-ordinate Bench in the matter of Smt. Sapnaben Dipakhai Patel vs. ITO [2016] 73 taxmann.com 288 (Ahmedabad – Trib.) wherein in similar circumstances matter was decided in favour of assessee with following observation:-
“Section 45, read with section 2(47), of the Income-tax Act, 1961 – Capital gains – Chargeable as (Unregistered sale deed) – Assessment year 2010-11 – Assessee purchased certain agricultural land between 18- 12-2007 to 4-3-2008 – On 4-4-2008, assessee entered into an agreement with SDS to sell said land for certain consideration – Subsequently, by another agreement dated 2-3-2009 entered into among assessee, SDS and C.O. No. 110/Ahd/2016 [DCIT vs. Smt. Bijalben Vipulbhai Haria] A.Y. 2010-11 - 5 - one GPPL said land was agreed to be sold to GPPL for a much higher sum – By another agreement of same date assessee was paid sale consideration as per agreement dated 4-4-2008 – Possession of land was handed over by assessee to GPPL – Deed of sale was registered on 27-1- 2010 disclosing higher amount of sale consideration – Assessing Officer held that capital gains on transfer of land was to be assessed in year 2010-11 on basis of sale deed registered on 27-1-2010 for higher sale consideration – Whether since SDS had a right to get agreement dated 4- 4-2008 enforced by way of suit for specific performance and assessee could be persuaded to execute sale deed in favour of SDS by virtue of this agreement, she could be charged for capital gain on amount mentioned in that agreement only – Held, yea – Whether, transfer within meaning of section 2(47)(v) was complete on execution of agreement dated 2-3-2009, when possession of land was handed over to GPPL and capital gains on sale property could not be charged in relevant assessment year on basis of sale deed registered on 21-1-2010 – Held, Yes [Para 32] [In favour of assessee]”
Since M/s. Radhe Infrastructure and Projects (India) Ltd. has declared income in its return, therefore, same cannot be assessed in the hands of the assessee. Thus, in parity with Co-ordinate Bench judgment and facts and circumstances of the case we do not interfere in the order passed by the Ld. CIT(A) as he has passed detailed and reasoned order.
In the result, appeal filed by the Revenue is dismissed.
Now we come to C.O. No. 110/Ahd/2016 filed by the assessee. Since C.O. supportive to the order of the Ld. CIT(A), therefore, same is dismissed as infructuous.
In the result, C.O. of the assessee is dismissed.
This Order pronounced in Open Court on 05/09/2019