M/S RAJASTHAN AGENCIES PVT. LTD.,JAIPUR vs. INCOME TAX OFFICER, WARD-3-2, JAIPUR

per section 53A of transfer of property Act, where the transferee in part

performance of the contract has taken possession of the property and

willing to perform his part of the contract then the transferor shall be

debarred enforcing against the transferee any right in respect of the

property of which the transferee has taken or continued in possession.

From the agreement dated 11.04.2007 it is evident that the assessee

has taken the possession of the property and was willing to perform his

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

part of contract. In fact the entire consideration of Rs. 50 lacs as per

agreement was paid by the assessee by 29.09.2008 and thus, there is

transfer of land to the assessee u/s 2(47) of the Act on 11.04.2007. The

ld. AR has further contended that the sale deed dated 13.04.2010

mentions the cheque number and dates as well as the amount by which

the assessee paid the consideration. Therefore, when the assessee paid

the consideration as per agreement dated 11.04.2007 then the

transaction of transfer of land was completed on 11.04.2007 enabling

the assessee to enjoy the immovable property in question. The

agreement to sale dated 11.04.2007 coupled with possession and

payment of sale consideration has effect of transfer and enabling

enjoyment of immovable property in favour of the assessee. Therefore,

as per the provisions of section 2(47) of the Act the date of acquisition

of property by the assessee is 11.04.2007. Section 2(47) stipulates a

defacto transfer of any immovable property. A transfer is completed if

the conditions as provided u/s 2(47) (vi) are satisfied though title may

not have been transferred in law, there is in substance a transfer of title

in fact. The assessee in the present case has become defacto owner of

the property in as much as agreement to sale coupled with possession

thereof has enabled it to enjoy the land as its owner and thus in

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

substance there is a transfer though may not be in law. Accordingly, the

holding period needs to be considered from 11.04.2007 and

consequently the gain arising on sale of the land is a long term capital

gain.

section 53A of transfer of property Act cannot be applied in the case the

assessee where the property cannot be transferred legally until and

unless the same is converted from agricultural land to non agricultural

one. The sellers of the agricultural land belongs to Scheduled caste

community and therefore, as per section 42 of Rajasthan Tenancy Act

1955 any the sale, gifts or bequeath of the land is prohibited in favour

of any person who is not a member of Scheduled caste and schedule

Tribe. The purchase agreement dated 11.04.2007 is not legally

enforceable and therefore would not constitute transfer of land in

question as per the provisions of section 2(47) of the Act. The ld. DR

has further submitted that as per Registration Act, 1908 any contract

for transfer of immovable property for the purpose of section 53A of

transfer of property Act shall be registered if the said contract has been

executed on or after commencement of registration and other related

law Amendment Act 2001 and therefore, if the agreement for transfer

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO of land is required to be registered. He has relied upon the orders of the authorities below. 5. We have considered the rival submissions as well as relevant material on record. The assessee claimed to have purchased the agricultural land measuring 2.74 hectare at Newata, Tehsil Sanganer, Jaipur vide agreement dated 11.04.2007 for a consideration of Rs. 50 lacs. As per clause-2 of the agreement the assessee paid Rs. 40,00,000/- vide three pay orders dated 10.04.2007 and one cheque dated 11.04.2007 of Rs. 10 lacs each. The details of the payments given in clause 2 are as under:- ;g fd izFke i{k foØsrk us izfrQy foØ; dh dqy /kujkf'k esa ls :i;s 40]00]000@& ¼v{kjs pkyhl yk[k :i;s ek=½ tfj;s is&vkMZj la[;k 081166 fnuakd 10 vizSy 2007 :i;s 10]00]000@& ¼v{kjs nl yk[k :i;s ek=½ is&vkMZj la[;k 081167 fnuakd 10 vizSy 2007 :i;s 10]00]000@& ¼v{kjs nl yk[k :i;s ek=½ o is&vkMZj la[;k 081168 fnukad 10 vizSy 2007 :i;s 10]00]000@& ¼v{kjs nl yk[k :i;s ek=½ rFkk pSd la[;k 837564 fnukad 11 vizSy 2007 :i;s 10]00]000@& ¼v{kjs nl yk[k :i;s ek=½ leLr is&vkMZj@pSDl ,p-Mh-,Q-lh- cSad fyfeVsM t;iqj dk bl ys[;i= dks fu’ikfnr djrs le; izkIr dj fy;s gS ftudks izkIr djuk izFke i{k foØsrkx.k bl ys[;i= esa Lohdkj djrs gSA 'ks’k jkf'k lqfo/kkuqlkj cjoDr iath;u ysuk r; gqvkA ;g fd f}rh; i{k vHkh foØ; i= dk iath;u djokuk ugha pkgrk gS blfy;s ;g bdjkjukek fy[kk x;k gSA Hkfo’; esa tc dHkh Hkh f}rh; i{k vius Lo;a ds uke vFkok vius }kjk funsZf'kr ftl fdlh Hkh O;fDr@O;fDr;ksa@laLFkk@dEiuh ds uke ,d ;k ,d ls vf/kd foØ; i= rS;kj djokdj nsxk rks izFke i{k f}rh; i{k }kjk rS;kj djok;s gq, foØ; i= vkfn ij vius gLrk{kj djds lEcfU/kr mi&iath;d dk;kZy; esa izLrqr dj nsxsa rFkk foØ; ewY; dh 'ks’k jkf'k izkIr dj rLnhd jftLVªh djok nsxsaA 8

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

Thus, it is clear that out of the total consideration of Rs. 50 lacs the

assessee paid Rs. 40 lacs at the time of agreement. The vendors have

also acknowledged receipt of the consideration of Rs. 40 lacs. As per

clause 5 of the agreement the possession of the land was handed over

to the assessee as under:- ;g fd mDr Hkwfe dk dCtk izFke i{k }kjk f}rh; i{k dks vkt bl bdjkjukek ds fu’iknu ds le; HkkSfrd :i ls lEHkyok fn;k gS f}rh; i{k mDr Hkwfe dh iSekbZ'k djkosa vkSj mldk ekufp= cukos rFkk fMekdsZ'ku djkosa mlesa izFke i{k dks dksbZ mtz] ;k ,srjkt ugha gksxkA

The balance consideration of Rs. 10 lacs was paid on 29.09.2008 thus,

it was not disputed that that part consideration was paid by the

assessee at the time of agreement dated 11.04.2007. The possession of

the land was also handed over to the assessee in part performance and

consequently the land was available to the assessee for enjoyment. It is

also not disputed that after the possession handed over to the assessee

the assessee carried out some development work and the said

expenditure was disallowed by the AO on the ground that it is prior to

the execution of sale deed dated 13.04.2010. There is no quarrel that

section 42 of Rajasthan Tenancy Act, 1955 prohibits sale, gift or

bequeath of agricultural land by a member of scheduled caste in favour 9

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

of a person who is a not a member of scheduled caste however, when

for the purpose of transfer of the property the land was converted from

agricultural to non agricultural use then, the provisions of section 42 of

Rajasthan Tenancy Act are undisputed not applicable once, the land

was converted to non agricultural use.

the of the Income Tax Act is wider than the term sale and it includes all

rights and privileges in the property either in praesenti or accruing in

future as vested in vendor. Once these rights vested in the vendor were

subject matter of the transfer, the vendor retains no right in the

property to be re-conveyed in the subsequent sale deed except the

obligation to get the property converted for non agricultural use and

execution of the sale deed. The intentions of the parties are relevant

and must be ascertained from a document as a whole. Where the deed

of transfer has been executed though in violation of law prescribing for

a previous sanction or subsequent validation by a competent authority

and though not registered would still attract the application of doctrine

of part performance. In the case in hand since, the agricultural land

could not be sold in view of section 42 of the Rajasthan Tenancy Act,

therefore, the parties entered into an agreement to sale dated

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

11.04.2007 and thereafter the lands were converted into non

agricultural land and more specific Farm House Land on 03.02.2010 and

05.02.2010 and thereafter the sale deed was executed by the vendors

on 13.04.2010. As it is clear from these act and events that it is

continuous process of transfer which begins with the agreement to sale

dated 11.04.2007, conversion of the land use on 03/05.02.2010 and

ultimately execution on sale deed on 13.04.2010. The sale deed dated

13.04.2010 is a performance of obligation under the agreement to sale

dated 11.04.2007, therefore, the conversion of the land after the

execution of agreement to sale is a post facto conversion and the

transfer would effects from the date of agreement to sale specifying all

the conditions as stipulated u/s 2(47) (v) of the Act r.w.s. 53A of the

Transfer of Property Act. Once, the sale deed is executed in pursuant to

agreement to sale and all the conditions stipulated u/s 2(47) of the Act

are satisfied it would constitute transfer and would be effective from the

date of agreement to sale itself.

1908 vide amendment Act 2001 an agreement for sale of any

immovable property without registration shall have no effect of transfer

however, the agreement in question has to be seen along with the sale

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

deed executed subsequently. It is not a case of transfer based only on

unregistered documents but in this case the parties to the agreement

have executed sale deed in performance of the agreement. Therefore,

the transfer of immovable property would be considered as a combined

act of agreement to sale and sale deed as a single transaction of

transfer with effect from the date on which such transaction was

intended and conceived by the parties to the transaction. Hence,

agreement to sale dated 11.04.2007, conversion of land use by JDA on

03.02.2010 and 05.02.2010 and execution sale deed dated 13.04.2010

are interlinked and inseparable chain of events necessary for

transaction of transfer. The contents of the sale deed dated 13.04.2010

clearly show that it is in furtherance of agreement dated 11.04.2007.

The sale deed clearly states that made of payment of consideration as

per the details given in the agreement dated 11.04.2007. Therefore, the

possession was handed over and consideration was received prior to

the date of sale deed. The sale deed in fact ratify the transaction of

transfer vide agreement dated 11.04.2007. The parties were very much

aware about the need of conversion of land use and accordingly applied

to JDA for conversion which was granted in the month of February,

2010 and thereafter the sale deed was executed. Hence, the transfer as

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

per provisions of section 2(47) of the Act is to be considered at the time

of agreement dated 11.04.2007. The intention of the parties can be

gathered from the terms of the agreement, subsequent performance by

the parties in terms of agreement getting the land converted to non

agricultural use and execution on sale which has reaffirmed the status

of the parties to the agreement and the transfer under the agreement

instead of altering the same. The Hon’ble Supreme Court in case of

Sanjay Lal vs. CIT 365 ITR 389 while considering the question as to

whether the date on which agreement for sale was executed could be

considered the date on which the property was transfer has held in

para 20 to 25 as under:- “20. The question to be considered by this Court is whether the agreement to sell which had been executed on 27th December, 2002 can be considered as a date on which the property i.e. the residential house had been transferred. In normal circumstances by executing an agreement to sell in respect of an immovable property, a right in personam is created in favour of the transferee/vendee. When such a right is created in favour of the vendee, the vendor is restrained from selling the said property to someone else because the vendee, in whose favour the right in personam is created, has a legitimate right to enforce specific performance of the agreement, if the vendor, for some reason is not executing the sale deed. Thus, by virtue of the agreement to sell some right is given by the vendor to the vendee. The question is whether the entire property can be said to have been sold at the time when an agreement to sell is entered into. In normal circumstances, the aforestated question has to be answered in the 13

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

negative. However, looking at the provisions of Section 2(47) of the Act, which defines the word "transfer" in relation to a capital asset, one can say that if a right in the property is extinguished by execution of an agreement to sell, the capital asset can be deemed to have been transferred. Relevant portion of Section 2(47), defining the word "transfer" is as under: '2(47) "transfer", in relation to a capital asset, includes,- (i)** ** **

(ii) the extinguishment of any rights therein; or. . . . . . . . . . . . .' 21. Now in the light of definition of "transfer" as defined under Section 2(47) of the Act, it is clear that when any right in respect of any capital asset is extinguished and that right is transferred to someone, it would amount to transfer of a capital asset. In the light of the aforestated definition, let us look at the facts of the present case where an agreement to sell in respect of a capital asset had been executed on 27th December, 2002 for transferring the residential house/original asset in question and a sum of Rs. 15 lakhs had been received by way of earnest money. It is also not in dispute that the sale deed could not be executed because of pendency of the litigation between Shri Ranjeet Lal on one hand and the appellants on the other as Shri Ranjeet Lal had challenged the validity of the Will under which the property had devolved upon the appellants. By virtue of an order passed in the suit filed by Shri Ranjeet Lal, the appellants were restrained from dealing with the said residential house and a law-abiding citizen cannot be expected to violate the direction of a court by executing a sale deed in favour of a third party while being restrained from doing so. In the circumstances, for a justifiable reason, which was not within the control of the appellants, they could not execute the sale deed and the sale deed had been registered only on 24th September, 2004, after the suit filed by Shri Ranjeet Lal, challenging the validity of the Will, had been dismissed. In the light of the aforestated facts and in

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

view of the definition of the term "transfer", one can come to a conclusion that some right in respect of the capital asset in question had been transferred in favour of the vendee and therefore, some right which the appellants had, in respect of the capital asset in question, had been extinguished because after execution of the agreement to sell it was not open to the appellants to sell the property to someone else in accordance with law. A right in personam had been created in favour of the vendee, in whose favour the agreement to sell had been executed and who had also paid Rs.15 lakhs by way of earnest money. No doubt, such contractual right can be surrendered or neutralized by the parties through subsequent contract or conduct leading to no transfer of the property to the proposed vendee but that is not the case at hand. 22. In addition to the fact that the term "transfer" has been defined under Section 2(47) of the Act, even if looked at the provisions of Section 54 of the Act which gives relief to a person who has transferred his one residential house and is purchasing another residential house either before one year of the transfer or even two years after the transfer, the intention of the Legislature is to give him relief in the matter of payment of tax on the long term capital gain. If a person, who gets some excess amount upon transfer of his old residential premises and thereafter purchases or constructs a new premises within the time stipulated under Section 54 of the Act, the Legislature does not want him to be burdened with tax on the long term capital gain and therefore, relief has been given to him in respect of paying income tax on the long term capital gain. The intention of the Legislature or the purpose with which the said provision has been incorporated in the Act, is also very clear that the assessee should be given some relief. Though it has been very often said that common sense is a stranger and an incompatible partner to the Income Tax Act and it is also said that equity and tax are strangers to each other, still this Court has often observed that purposive interpretation should be given to the provisions of the 15

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

Act. In the case of Oxford University Press v. CIT [2001] 247 ITR 658/115 Taxman 69 this Court has observed that a purposive interpretation of the provisions of the Act should be given while considering a claim for exemption from tax. It has also been said that harmonious construction of the provisions which subserve the object and purpose should also be made while construing any of the provisions of the Act and more particularly when one is concerned with exemption from payment of tax. Considering the aforestated observations and the principles with regard to the interpretation of Statute pertaining to the tax laws, one can very well interpret the provisions of Section 54 read with Section 2(47) of the Act, i.e. definition of "transfer", which would enable the appellants to get the benefit under Section 54 of the Act. 23. Consequences of execution of the agreement to sell are also very clear and they are to the effect that the appellants could not have sold the property to someone else. In practical life, there are events when a person, even after executing an agreement to sell an immovable property in favour of one person, tries to sell the property to another. In our opinion, such an act would not be in accordance with law because once an agreement to sell is executed in favour of one person, the said person gets a right to get the property transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed. 24. Thus, a right in respect of the capital asset, viz. the property in question had been transferred by the appellants in favour of the vendee/transferee on 27th December, 2002. The sale deed could not be executed for the reason that the appellants had been prevented from dealing with the residential house by an order of a competent court, which they could not have violated.

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO 25. In view of the aforestated peculiar facts of the case and looking at the definition of the term 'transfer" as defined under Section 2(47) of the Act, we are of the view that the appellants were entitled to relief under Section 54 of the Act in respect of the long term capital gain which they had earned in pursuance of transfer of their residential property being House No. 267, Sector 9-C, situated in Chandigarh and used for purchase of a new asset/residential house.” Thus, it was held by the Hon’ble Supreme Court that when agreement

to sale in respect of immoveable property is executed a right in

personae is created in favour of the vendee and thereby the vendor is

restrain from selling the property to someone else because the vendee

gets the legitimate right to enforce specific performance of the

agreement. In view of the above facts and circumstances of the case as

well as the decision of Hon’ble Supreme Court we hold that the transfer

of the land in question would be regarded as on the date of agreement

to sale dated 11.04.2007. The order of the authorities below qua this

issue are set aside.

AO as per Section 50C of the Income Tax Act. During the course of

assessment proceeding, the AO invoked the provisions of Section 50C of

the Act and adopted the full value consideration as per the stamp duty

valuation of Rs. 3.16 crores for the assessment year 2011-12 and Rs.

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

2,62,01,662/- for the assessment year 2012-13. On appeal, the ld.

CIT(A) has referred the matter of valuation to the DVO u/s 50C(2) of

the Act for determination of fair market value on the date of sale. The

assessee furnished the report of the registered valuer in support of its

claim that the fair market value of the property is much less than the

value adopted by the stamp duty authority. The DVO, however

determined the fair market value of the land at the value as adopted by

the stamp duty authority for registration of sale deeds. Consequently

the ld. CIT(A) has confirmed the addition made by the AO on this

account.

Sub-Registrar and DVO have considered the land as meant for

residential use and accordingly applied the rate of Rs. 2,000/- and 2300

per sq. mt. respectively. He has contended that as per clause-3 of the

lease deed issued by JDA, the land can be used only for farm house and

not for any other purpose. Further, as per clause 4 of the lease deed

there is a reference to the government order dated 04.10.2002 &

21.07.2003 whereby the minimum size of farm house is specified to be

3000 sq. mt. and permitted built up area at 5% and therefore, the

value adopted by the DVO is apparently incorrect when the land in

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

question is permitted only for farm house purpose. There is a restriction

on the minimum size of farm house as well as built up area which is

only 5%. The ld. AR has then referred to the letter dated 14.07.2014 of

collector of stamp wherein it was clarified that the land is meant for

farm house. In the meant time the Government issue notification of

acquisition of the land for the road purpose and therefore, at the time

of sale of the land in question was under the process of the acquisition

by the Government and consequently the fair market value of the land

is affect by the acquisition notification and will be less than the normal

rates of the land. He has also referred to the Circular No. 3385 dated

14.07.2014 and submitted that the Government has clarified DLC rate

application on the agricultural land used for farm houses however, the

DVO has denied the applicability of the said circular as it is subsequent

to the date of sale. Hence, the ld. AR has submitted that the registered

valuer has determined the fair market value of the land by considering

all these factors which should have been accepted by the authorities

below.

determined the valuation after considering the objection of the assessee

as well as the valuation report of the registered valuer submitted by the

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

assessee. The fair market value of the property has to be determined

on the date of sale deed and therefore, the circular dated 14.07.2014

was not available at the time of sale deed and consequently is not

applicable in the case of the assessee. He has relied upon the orders of

the authorities below.

material on record. We find that the stamp duty authority has adopted

the rates as provided for residential purpose whereas undisputedly the

land in question was allowed only for farm house purpose. As per the

orders of the competent authority the construction on the farm house

land cannot exceed more than 5%, therefore, all these facts are

relevant for determining the fair market value as per section 50C(2) of

the Act when the assessee has raised the objection against the adoption

of full value consideration as adopted by the stamp duty authority. We

further note that the land in question was under acquisition by the

Government and this itself is a very relevant factor to be taken into

consideration for the purpose of determining the fair market value. The

Property has been bifurcated into two parts as a road has been carved

out passing through the property after acquisition of the land. The DVO

has adopted the DLC rate as applied by the stamp duty authority

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

without carried out any exercise of the determining the fair market

value of the land in question. It is pertinent to note that there are

various factors which effect the fair market value of land in question

including the land use, the restriction of built up area, subsequent

circular issued by the Government prescribing the rates for the stamp

duty authority in respect of the farm house as per the size of the farm

house but have not been considered by DVO. Therefore, these aspects

are required to be taken into consideration while determining the fair

market value of the land in question. We find that the DVO has not

given a due waitage to these factors while determining the valuation,

therefore, the same is not sustainable. Accordingly, in the facts and

circumstances of the case we set aside this issue to the record of the

AO/DVO for determination of fair market value after considering all the

relevant factors such as the land use, restriction of built up area, the

circular dated 14.07.2014 specifying as per rates for the farm house

land in accordance with the area of the land and acquisition by

Government. The circular dated 14.07.2014 is a useful and relevant

guidance for determining the fair market value. Needless to say the

assessee be given an opportunity of hearing before deciding this issue.

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

The AO while computing the capital gain has allowed the cost of

purchase at Rs. 47,42,800/- and cost of improvement at Rs. 20,000/-

aggregating to Rs. 47,62,800/- as against Rs. 56,70,055/- claimed by

the assessee. The AO restricted the claim of cost of improvement on

the ground that on verification of the ledger account it is found that

only an amount of Rs. 20,000/- was incurred after acquisition of the

property vide sale deed dated 13.04.2010. Thus, the AO has disallowed

the expenditure which was incurred prior to the sale deed and after the

date of agreement to sale dated 11.04.2007. The ld. CIT(A) has

confirmed the action of the AO.

material on record. Since, this issue of date of acquisition of the land in

question has been decided by us by holding that the assessee has

acquired the land vide agreement dated 11.04.2007 and therefore, the

expenditure incurred for improvement of the land after the said date of

acquisition is an allowable claim as per section 48 of the Income Tax

Act. Even otherwise if an expenditure is incurred by the assessee for

improvement of the land after the agreement to sale dated 11.04.2007

and prior to the sale deed dated 13.04.2010 the fact remains that the

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

expenditure was incurred for improvement of land by the assessee and

acquired by the assessee. Therefore we are of the considered view that

the expenditure incurred cannot be disallowed when the purchase

consideration paid by the assessee prior to the sale deed was accepted

and therefore, the expenditure incurred by the assessee prior to the

sale deed is also allowable claim. Accordingly, we decide this issue in

favour of the assessee.

assessee has stated at bar that the assessee does not press ground no.

4 and the same may be dismissed as not pressed. The ld. DR has raised

no objection if ground no. 4 of the assessee’s appeal is dismissed as not

pressed. Accordingly the ground no. 4 of the assessee’s appeal is

dismissed being not pressed.

following grounds:-

“1. The Ld. CIT(A) has erred on fact and in law in confirming the action of the AO in taking the date of purchase of land as 13.04.2010 as against the date of acquisition of land of 11.04.2007 when the land was purchased and the possession was received in terms of agreement to sale of even date and thereby, assessing the gain on sale of the land as Short Term Capital Gain instead of Long Term Capital Gain claimed by the assessee. 2. The Ld. CIT(A) has erred on fact and in law in adopting the sale consideration of the land u/s 50C at Rs. 2,62,01,662/- on the 23

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO

basis of the report of DVO which is based on the value determined by the Sub-Registrar and not the fair market value of the land as required u/s 50C(2). He has further erred in not appreciating the various objections raised by the assessee on the report of the DVO and also the fair Market value of the land determined by the registered valuer and thereby, upholding the capital gain determined by the AO at Rs. 2,20,38,183/-. 3. The Ld. CIT(A) has erred on fact and in law in holding that the agricultural land sold by the assesse is a capital asset by not considering that the land was situated beyond 8 kms of the municipal limits as per Notification No. 9447 dt. 06.01.1994. 4. The assessee crave to amend, alter and modify any of the grounds of appeal. 5. The appropriate cost be awarded to the assessee.”

as short term capital gain. This issue is common as raised by the

assessee in ground No. 1 of the appeal for the assessment year 2011-

12 the same stands adjudicated in favour of the assessee.

the DVO and adopted by the authorities below. This issue is also

common to the issue raised by the assessee in ground No. 2 for the

assessment year 2011-12. In view of our findings on this issue, this

issue stands adjudicated in terms of our findings and accordingly, set

aside to the record of AO/DVO.

ITA No. 680 &681/JP/2017 M/s Rajasthan Agencies pvt. Ltd. vs ITO 18. Ground No. 3, at the time hearing, the learned counsel for the assessee has stated at bar that the assessee does not press ground no. 3 and the same may be dismissed as not pressed. The ld. DR has raised no objection if ground no. 3 of the assessee’s appeal is dismissed as not pressed. Accordingly the ground no. 3 of the assessee’s appeal is dismissed being not pressed. In the result, both the appeals of the assessee are partly allowed.

Order pronounced in the open court on 25/01/2018 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:- 25/01/2018. *Santosh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- M/s Rajasthan Agencies Pvt. Ltd., Jaipur. 2. izR;FkhZ@ The Respondent- ITO, Ward-3(2), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 680 & 681/JP/2017} vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत