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Income Tax Appellate Tribunal, “SMC” BENCH, PUNE
Before: SHRI ANIL CHATURVEDI, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER
PER VIKAS AWASTHY, JM :
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-1, Nashik dated 16-11-2016 for the assessment year 2010-11.
The assessee in appeal has assailed the order of Commissioner of Income Tax (Appeals) by raising following grounds :
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“1] The learned CIT(A) erred in confirming the action of the A.O. in adopting the total deemed sale consideration on sale of land adm. 10H & 68R at S.No.145 and 149, Makhmalabad, Nashik at Rs.3,45,75,737/- by wrongly applying the provisions of section 50C as against the actual total consideration of Rs.1,40,00,000/- that should have been considered for the purposes of computing the assessee's share of Long Term Capital Gains on sale of the impugned land. 2] The assessee submits that the A.O. may please be directed to allow credit of advance tax of Rs.3,50,000/- paid by the assessee for this year which is duly reflected in Form No.26AS while computing the liability of tax payable by the assessee for the year under consideration. 3] The appellant craves, leave to add, alter, amend and delete any of the above grounds of appeal.”
Shri Sanket Joshi appearing on behalf of the assessee submitted that the assessee is a co-owner of land comprising in S. No. 149/2 admeasuring 7H 22R and land comprising in S. No. 145 admeasuring 3H 46R. The assessee was having 1/4th share in the land. Out of four, three owners of the land including assessee entered into agreement to sell on 12-04-2005 land admeasuring 10H 68R for a total consideration of Rs.1,40,00,000/-. At the time of agreement Rs.80,00,000/- was paid by the purchaser through Banking Channel. The valuation of the said land for stamp duty purpose was Rs.1,46,85,000/-. At the time of execution of agreement to sell the land was undivided and there was no demarcation of share of the co-owners. Subsequently, the land was demarcated by meets and bounds on 06-12-2008 by the Land Revenue Authorities amongst all the co-owners of land. The registered sale deed in favour of purchaser was executed on 03-06-2009 by all the co-owners except Smt. Shamla Sharad Sukenkar who retained her share of land admeasuring 3.46 H. The assessee received his balance share of sale consideration at the time of execution of Sale Deed. The possession of the impugned land was handed over to the purchaser after execution of Registered Sale Deed. The
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assessee in his return of income for assessment year 2010-11 offered Capital Gain Rs.17,56,250/- on his share of consideration. The assessment of the assessee was reopened. Notice u/s. 148 of the Act was issued to the assessee on 16-03-2015. In response to the notice the assessee filed return of income declaring total income of Rs.3,75,000/- and Long Term Capital Gain of (-) Rs.41,93,908/- from sale of land. While filing the return of income the assessee recomputed the cost of acquisition which resulted in loss. In reassessment proceedings the Assessing Officer determined the value of land sold at Rs.3,45,75,737/- u/s. 50C of the Act. The assessee’s share in the aforesaid land was 25%. After granting the benefit of indexed cost of acquisition of land the Assessing Officer determined Long Term Capital Gain on sale of land at Rs.12,46,197/-. The Assessing Officer made addition of Rs.54,40,105/- on account of Long Term Capital Gain on the sale of land.
3.1 In respect of addition confirmed by the Commissioner of Income Tax (Appeals), the ld. AR filed following written contentions : “11. The assessee submits that the contention of the Dept. is not justified at all. It is submitted that the Distribution Deed dated 06.12.2008 was entered between and amongst the co-owners itself. Vide the said deed, only the specific physical area of land owned by each co-owner was demarcated amongst themselves. It is submitted that no third party was involved in the said distribution deed norany consideration was involved for demarcation of the specific portion of land. It only amounted to distribution of the big land amongst the various co- owners in the share of their ownership. Thus, it is submitted that there is no question of any transfer of land having effected to any third party by way of entering the distribution deed. Accordingly, the assessee submits that the contention of the Dept. that the transfer of land adm.10H & 68R to the subsequent purchasers was effected only at the time of entering the Distribution Deed dated 06.12.2008 is apparently incorrect. 12. The assessee submits that the transfer was effected only at the time of entering the Regt. Sale Deed dated 03.06.2009 when the balance consideration of Rs.60 lakhs was paid and the possession of the impugned land adm. 10H & 68R was handed over to the purchasers. It is submitted that in the above regt. Sale Deed dated 03.06.2009, the Sub-Registrar has adopted/ assessed the valuation of the said
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land at Rs.1,46,85,000/- and hence, in view of the specific provisions of section 50C, the A.O. ought to have adopted the same value for the purposes of determining the long term capital gains on the above land. 13. The assessee submits that the above proposition in law is squarely supported by the decision of Hon'ble ITAT Ahmedabad in the case of Hasmukhbhai M. Patel v. ACIT [46 SOT 419] [ITA No.4284/Ahd/2007] dated 29.04.2011, copy of which is furnished herewith. This view is also supported by the decision of Hon'ble Rajasthan High Court in the case of CIT v. Satya Dev Sharma [ITA No.75/2014] dated 11.09.2017 wherein it has been held that the amendment to section 50C introducing the word 'assessable' w.e.f. 01.10.2009 is prospective in nature and the same is not applicable to the transactions entered prior to 01.10.2009. Thus, in view of the above judicial decisions and facts of the case, the assessee submits that for the purposes of computing the long term capital gains, the A.O. could not have adopted the valuation of the land other than the value of Rs.1,46,85,000/- adopted by the Stamp Valuation Authority at the time of registering the Sale Deed dated 03.06.2009. The assessee further submits that the said value is within the range of 10% from the actual consideration of Rs.1.40 crores and hence, no addition u/s 50C was warranted in view of the decisions of Hon'ble ITAT Pune in the case of Rahul Constructions v. DCIT [38 DTR 19 (Pune)] and Dattatraya Kerba Lonkar v. DCIT [ITA No.1818/Pune/2014] dated 30.01.2017. Thus, the assessee submits that for the purposes of determining the LTCG, the A.O. should have adopted the assessee's actual share of consideration of Rs.35,00,000/- from total consideration of Rs.1.40 crores and no addition u/s 50C was required to be made.
Without prejudice to the above contention, it is submitted that although the impugned transaction was finalized vide registered sale deed dated 03.06.2009, the agreement to sale in respect of the said land was already entered on 12.04.2005 itself and a substantial quantum of consideration was also paid in 2005 itself by way of banking channel. Accordingly, the assessee submits that in view of the amendment to section 50C by way of introduction of provisos vide Finance Act, 2016, the govt. valuation of the land at the time of entering the agreement to sale dated 12.04.2005 at Rs.1,46,85,000/- should have been adopted for the purposes of section 50C of the Act. In this respect, the assessee places reliance on the recent decision of Hon 'ble ITAT Pune in the case of Maruti P. Tupe v. ITO [ITA No.523/PN/2018] dated 26.11.2018 wherein the said amendment has been held to be applicable retrospectively. Again, it is reiterated that the said value of Rs.1,46,85,000/- is within the range of 10% from the actual consideration of Rs.1.40 crores and hence, no addition u/s 50C was warranted in view of the decisions of Hon 'ble ITAT Pune in the case of Rahul Constructions v. DCIT [38 DTR 19 (Pune)] and Dattatraya Kerba Lonkar v. DCIT [ITA No.1818/Pune/2014] dated 30.01.2017.”
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3.2 In respect of ground No. 2 of the appeal the ld. AR submitted that the assessee had deposited self assessment tax of Rs.3,50,000/- which is duly reflected in Form No. 26AS. The Assessing Officer while computing tax liability for the impugned assessment year has failed to take note of same. The ld. AR in support of his contention furnished copy of Challan vide which an amount of Rs.3,50,000/- was deposited. The Assessing Officer may be directed to grant credit of the self assessment tax paid by the assessee.
On the other hand Shri Rajesh Gawali representing the Department vehemently defended the impugned order. The ld. DR submitted that after the amendment to section 50C the value assessable by the authority of State Government for stamp valuation purpose shall be deemed to be a full value consideration. On the date of execution of Agreement to sell the co- owners were not aware of their share in land. Therefore, the said unregistered agreement had no legal sanctity. The actual area and positon of land sold was determined only after demarcation of land on 06-12-2008. The authorities below were right in considering the aforesaid date as the date of actual sale u/s. 50C of the Act.
Both sides heard. Orders of the authorities below perused. The ground No. 1 of appeal is with respect to determination of value to be adopted for the purpose of computing Long Term Capital Gain on sale of land by the assessee. The undisputed fact is that the assessee is having 1/4th share in land sold during the period relevant to the assessment year under appeal. The contention of the assessee is that since the sale deed of land was registered on 03-06-2009 i.e. prior to the amendment by the Finance (No. 2) Act, 2009, the un-amended provisions of section 50C
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would apply. The provisions of section 50C were amended by the Finance (No. 2) Act, 2009 with insertion of the words “or assessable”.
The Hon’ble Rajasthan High Court in the case of Commissioner of Income Tax Vs. Shri Satya Dev Sharma (supra) after considering the Board Circular No.5/2010/(F.No.142/13/2010-SO(TPL)) dated 03-06-2010 held that the amendment to section 50C by Finance (No.2) Act, 2009 would be applicable w.e.f. 01-10-2009. For the sake of completeness the relevant extract of the CBDT Circular is also reproduced here-in-below : (12 of 13) [ITA-75/2014] “23.4. Applicability :- These amendments have been made applicable with effect from 1st October, 2009 and will accordingly, apply in relation to transactions undertaken on or after such date.”
Thus, in view of the decision of Hon’ble Rajasthan High Court and the Board Circular the amended provisions of section 50C would not apply in the instant case as the sale deed was executed prior to the date of amendment.
We also find force in the alternate contention of ld. AR of assessee with respect to applicability of newly inserted proviso to section 50C. The relevant extract of proviso inserted by the Finance Act, 2016 reads as under : "Provided that where the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer:
The Co-ordinate Bench of Tribunal in the case of Shri Maruti Patilbuva Tupe Vs. Income Tax Officer (supra) has held that proviso to section 50C inserted by the Finance Act, 2016 has retrospective application w.e.f. 1st April 2003. Similar view has been taken by the
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Ahmedabad Bench of Tribunal in the case of Dharamshibhai Sonani Vs. Assistant Commissioner of Income Tax reported as 57 ITR (Trib.) 669 and Allahabad Bench in the case of Hari Mohan Das Tandon (HUF) Vs. Pr. Commissioner of Income Tax reported as 91 taxmann.com 199. According to newly inserted proviso to section 50C, where the date of agreement fixing the amount of consideration and the date of registration of sale deed is different, the value adopted or assessed or assessable by the Stamp Valuation Authority on the date of agreement shall be considered for the purpose of computing value of consideration. In the instant case, the stamp duty valuation of the land as on the date of “Agreement to sell” was Rs.1,46,85,000/-, therefore, the same shall be considered for the purpose of valuation u/s. 50C of the Act.
The next contention of assessee is that where the difference in value as determined by the assessee and stamp valuation is less than 10%, no addition u/s. 50C is warranted. We find that the Co-ordinate Bench of the Tribunal in the case of Rahul Constructions Vs. Deputy Commissioner of Income Tax (supra) and in the case of Dattatraya Kerba Lonkar Vs. DCIT in ITA No. 1818/PUN/2014 decided on 30-01-2017, no addition was made by the Tribunal where the difference between actual value of consideration and the Government valuation was less than 10%. Thus, taking into consideration entirety of facts and the decisions discussed above, we find no reason to sustain the addition made by the Commissioner of Income Tax (Appeals). Accordingly, ground No. 1 raised in the appeal by the assessee is allowed.
In ground No. 2 of the appeal, the prayer of assessee is that the credit of self assessment tax paid by the assessee Rs.3,50,000/- which is duly reflected in Form No. 26AS has not been given while framing the
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assessment. In support of the contention raised, the assessee has filed copy of challan vide with the aforesaid amount was deposited. This issue needs verification. The ground No. 2 of the appeal is restored to the file of Assessing Officer for ascertaining the correct amount of advance tax paid by the assessee. If the assessee has paid Rs.3,50,000/-, the Assessing Officer is directed to give the credit of same after due verification. Accordingly, ground No. 2 raised in the appeal is allowed for statistical purpose.
In the result, the appeal of assessee is allowed in the terms aforesaid.
Order pronounced on Thursday, the 18th day of April, 2019.
Sd/- Sd/- (अननऱ चतुवेदी / Anil Chaturvedi) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 18th April, 2019. RK आदेश की प्रनतलऱवऩ अग्रेवर्त / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A)-1, Nashik 3. 4. The Pr. Commissioner of Income Tax-1, Nashik ववभागीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, “एक-सदस्य मामऱा” बेंच, 5. ऩुणे / DR, ITAT, “SMC” Bench, Pune. गार्ड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रनत // True Copy// आदेशानुसार / BY ORDER,
ननजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune