M/S MYRA REAL ESTATE PVT. LTD.,JAIPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh Hkkxpan] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 659/JP/2018 fu/kZkj.k o"kZ@Assessment Year : 2014-15 cuke M/s Myra Real Estate Pvt. Ltd., The ACIT, A-8, 1st Floor, Mall Road, Sector-1, Vs. Circle-4, Vidhyadhar Nagar, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAFCM 3772 K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (C.A.) jktLo dh vksj ls@ Revenue by : Shri J.C. Kulhari (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 11/07/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 13/07/2018 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 26.02.2018 of CIT (A), Jaipur for the assessment year 2014-15. The assessee has raised the following grounds as under:- “1. The Ld. CIT(A) has erred on facts and in law in confirming the addition of Rs. 41,94,426/- U/s 50C of the IT Act on account of difference between the sales consideration and the value adopted by the valuation officer without appreciating the fact that DLC rate do not represent the FMV of the property and assessee has brought evidence on record that even at the time of purchase of property, the DLC rate was higher than the FMV of the property. 2. The assessee craves to amend, alter and modify any of the grounds of appeal. 3. The appropriate cost be awarded to the assessee.”

The assessee has also filed an additional ground which reads as under:-

“The Ld. CIT(A) has erred on facts and in law in rejecting the contention of assessee that the property under consideration is stock-in-trade and therefore, section 50C is not applicable only for the reason that this issue is not contested before the AO and no such ground is taken before him even when the fact that the properly under consideration is stock-in-trade is evident from the annual accounts of assessee available on record.”

additional ground and carefully perused the relevant material on record.

In the additional ground the assessee has raised a legal issue of

applicability of Section 50C of the Act in case of sale of property in

question which was held as stock-in-trade. The ld. AR of the assessee

has submitted that the assessee while computing its income has shown

the profit from sale of land in question as business income which has

not been disturbed by the AO through, the Assessing Officer has made

an addition by applying the provisions of Section 50C of the Act. The ld.

AR has further contended that the assessee has raised this plea before

the ld. CIT(A) which was not entertained by the ld. CIT(A) on the

ground that the assessee did not raise this issue before the AO. The ld.

AR has submitted that no new fact is required to be investigated for

adjudication of this ground and therefore, the same may be admitted

on the basis of the fact available on record. He has relied upon the

decision of Hon’ble Supreme Court in case of CIT vs. NTPC Ltd. 229

ITR 383. The ld. AR has referred to the profit and loss account as well

as balance sheet and schedule-18 to show that the property in question

was part of stock-in-trade and therefore, the profit on sale of the said

property is business income of the assessee and provisions of Section

50C of the Act are not applicable. The ld. AR has further contended that

this property was purchased by the assessee in the auction of Jaipur

Development Authority (JDA) and the purchase consideration itself was

very less in comparison to the DLC rate on that date of purchase in

February, 2010.

ground raised by the assessee and submitted that the assessee did not

raise this plea before the Assessing Officer and even no such issue was

raised in the ground raised before the ld. CIT(A). Only submissions were made by the assessee before the ld. CIT(A) on this issue which

were not accepted by the ld. CIT(A). He has relied upon the order of

the authorities below.

materials on record we note that the additional ground raised by the

assessee is purely legal in nature and further all the facts and materials

are available on the assessment record for adjudication of this ground

and no new facts are required to be investigated. We find that the facts

which are recorded in the profit and loss accounts and balance sheet as

well as computation of income of the assessee are sufficient for

adjudication of this issue raised in the additional ground. Accordingly, in

view of the decision of Hon’ble Supreme Court in case of CIT vs. NTPC

Ltd. (supra) the additional ground raised by the assessee is admitted.

available on the assessment record and therefore, it requires the stand

of the Assessing Officer on the factual aspect of the property in

question being stock-in-trade and not capital asset as per the books of

accounts and computation of the assessee. Once it is found that the

property in question was held by the assessee as stock-in-trade all

through years then the provisions of Section 50C of the Act would not

apply for computation of the profit on sale of stock-in-trade. Section

50C of the IT Act is part of chapter iv of the Income Tax which deals

the computation of income from capital gain. Accordingly, once the

property in question is found to be stock-in-trade of the assessee then

full value consideration as per the provisions of Section 50C of the Act

would not germaine to the controversy. Hence, we set aside the matter

to the record of the Assessing officer to verify the record on the aspect

of the nature of the property in question being stock-in-trade of the

assessee and then decide the issue as per law in light of the above

observation.

In the result, the appeal filed by the assessee is allowed for

statistical purposes.

Order pronounced in the open court on 13/07/2018.

Sd/- Sd/- ¼Hkkxpan ½ ¼fot; iky jko½ (Bhagchand) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 13/07/2018. *Santosh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- M/s Myra Real Estate Pvt. Ltd., Jaipur. 2. izR;FkhZ@ The Respondent- ACIT, Circle-4, Jaipur. 3. vk;dj vk;qDr@ CIT 5

4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 659/JP/2018} vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत