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Income Tax Appellate Tribunal, DELHI BENCH “F”: NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI PRASHANT MAHARISHI
O R D E R PER PRASHANT MAHARISHI, A. M. 1. This is an appeal filed by the assessee against the order of the ld CIT(A)-I, New Delhi dated 28.10.2016 for the Assessment Year 2013-14. 2. The assessee has raised the following grounds of appeal:- “1. On the facts and circumstances of the case, the order passed by the learned CIT(A) is bad, both in the eye of law and on the facts.
2. On the facts and circumstances of the case, the order passed by the learned CIT(A) is bad in law as the same is a non-speaking and non- reasoned order.
3. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in not taking into consideration the detailed written submissions and arguments put forth before him while passing the impugned order.
4. (i) On the facts and circumstances of the case, the learned CIT(A) has erred in upholding the addition of Rs. 98,20,000/- made by the AO under the head income from other sources. (ii) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming the action of the AO in holding that assessee was not the owner of the property which he has sold during the year under consideration.
Ram Kumar Singh ChauhanVs DCIT (Assessment Year: 2013-14) (iii) That the above said conclusion has been reached in total ignorance of the law and the evidences put forth by the assessee in support of its contention.
5. On the facts and circumstances of the case, the learned CIT(A) as well as AO have erred both on facts and in law in misinterpreting the provision of Section 2(47) of the Act read with Section 53A of the Transfer of Property Act. 6. (i) Without prejudice to the above and in the alternative, the learned CIT(A) has erred in ignoring the provisions of Section 45 of the Income Tax Act, whereby the gain arising on transfer of the capital asset is chargeable as capital gain in the year in which the transfer takes place, and not as income from other sources. (ii) On the facts and circumstances of the case, the learned AO as well as CIT(A) have erred both on facts and in law in ignoring the fact that capital asset includes not only the residential house but also any right in a property held by an assessee which it has transferred during the year.
7. On the facts and circumstances of the case, the learned AO as well as CIT(A) have erred both on facts and in law in holding that assessee has not acquired specific right in property No. D-157, Sector 50, Noida in the absence of such number being mentioned in the Agreement to Sell, ignoring the fact that in the Agreement to Sell the specific application number for which the agreement was entered into was mentioned.
On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in sustaining the disallowance of exemption, despite the fact that the assessee fulfilled all the conditions to be eligible to get exemption under Section 54 of the Act.
In the alternative and without prejudice to above, the learned AO as well as CIT(A) have erred in not allowing exemption under Section 54F of the Act in respect of the investment in another residential property.
Without prejudice to the above and in the alternative, the learned CIT(A) has grossly erred in sustaining the addition made by the AO regardless of the fact that if the assessee is precluded to be the owner of the property, the income from the sale of the property could not be taxed in the hand of the assessee.”
Brief facts of the case is that the Assessee is an individual deriving salary income and income from other sources filed his return of income on 23.07.2013 for Rs. 1576570/-. During the course of assessment proceedings it was noted that Assessee has sold a residential plot No. D-157 Sector 50 for Rs. 1 crore whose market value was Rs. 10987000/- vide transfer deed dated 26.09.2012. The Assessee claimed to have purchase it on 02.08.2002 for Rs 5 lac. Assessee purchased residential property at Page | 2 Ram Kumar Singh ChauhanVs DCIT (Assessment Year: 2013-14) Noida for Rs. 1.30 crores on 28.09.2012 and claimed exemption u/s 54F of Rs. 6632274/-. During the course of assessment proceeding AO noted that the sale deed dated 26.09.2012 were signed by one Mukesh Kumar as actual owner and Assessee is a witness. However, the sale proceeds of Rs. 1 crore was received in the bank account of the Assessee. Thus, AO asked Assessee to prove the ownership of the asset. Assessee submitted that the impugned property was purchased by agreement to sale dated 02.08.2002 and purchase consideration and further installments from 2002 to 2011 were paid by the Assessee. The ld Assessing Officer noted that agreement to sale is an unregistered document, there is no mention of address of the property and an agreement to sale was without possession. On reading of para no. 3 he noted that the balance of Rs. 320000/- was to be paid by Assessee to Mr. Mukesh Kumar on execution of final transfer deed which was never executed. The Assessee also submitted a tripartite agreement dated 20.09.2012 between Mukesh Kumar, Assessee and SB Residency Pvt. Ltd which was also not the registered agreement. Thus, AO held that Assessee was not owner of the property. He further noted that for a period of time Assessee has claimed investment in above property of Rs. 1778214/-. Out of which payment dated 28.10.2002 was made by Assessee in the name of Mukesh Kumar. Further, as per agreement to sale dated 02.08.2002 only Rs. 180000/- was paid by the Assessee as an advance and balance amount of Rs. 320000/- was to be paid on execution of final transfer deed which was never executed. The AO reduced from the sale consideration of Rs. 1 crore a sum of Rs. 180000/- and taxed Rs. 9820000/- as income from other sources. Thus, AO treated the capital gain shown by the Assessee as income from other sources worked out at Rs. 9820000/-. As the AO did not consider the income of the Assessee under the head capital gain, but as income from other sources, deduction u/s 54/ 54F was not considered. Consequently, assessment u/s 143(3) of the Act was passed on 17.02.2016 at total income of Rs. 11396566/- against the returned income of Rs. 1576570/-.
Assessee aggrieved preferred an appeal before the ld CIT(A), who upheld the order of the ld AO holding that it is absurd to claim the capital gain on sale Page | 3 Ram Kumar Singh ChauhanVs DCIT (Assessment Year: 2013-14) transaction where the Assessee is merely a witness. Thus, the Assessee aggrieved has preferred this appeal.
The ld Authorised Representative submitted that Mr. Mukesh Kumar was provisionally allotted a plot of land by Noida as per allotment letter dated 30.03.2002. Subsequently, on 02.08.2002 there is an agreement between Mukesh Kumar and Assessee for purchase of property allotted to mr. Mukesh Kumar by the Assessee. The lease deed was executed between NOIDA in favour of Mr. Mukesh Kumar wherein, total consideration of premium and installments were determined. Assessee paid sum of the expenses by cheque and sum in cash. On 20.09.2012 a tripartite agreement was entered into between Mukesh Kumar, Assessee and SB Residency Pvt. Ltd for a sale consideration of Rs. 1 crore. The Assessee received Rs. 9450000/- through cheque in his bank account and Rs. 550000/-through cash. He submitted that by entering into an agreement to sale on 02.08.2002 the Assessee acquired the right to get the above property registered in his name. when Mr. Mukesh Kumar sold the property, Assessee earned the total sale consideration. Thus, Assessee acquired the right in the above property which is a capital asset u/s 2(14) of the Act transfer of which is chargeable to tax as capital gain. He submitted that the issue is squarely covered in favour of the Assessee by the decision of the Hon’ble Delhi High Court in case of JK Kashyap Vs. ACIT 302 ITR 255. He further submitted that Assessee has shown the cost of acquisition which should be granted as deduction to the Assessee after indexation. With respect to exemption u/s 54F he submitted that all the conditions of that section are fulfilled. Therefore, Assessee should be granted the above deduction. He further submitted that identical issue has been decided by the coordinate bench in Savita Gupta Vs. ITO following the decision of Hon’ble Delhi High Court in JK Kahsyap (supra) therefore, the issue is squarely covered in favour of the Assessee.
The ld Departmental Representative relied upon the order of the ld AO and CIT(A).
We have carefully considered the rival contentions and also perused the orders of the lower authorities. The facts of the present case are identical to Page | 4 Ram Kumar Singh ChauhanVs DCIT (Assessment Year: 2013-14) the facts of the case of Savita Gupta (supra). In that decision it has been held in para No. 16 as under:- “16. We have carefully considered the rival contentions and perused the orders of the lower authorities. Looking at the facts culled out by us , admittedly in the present case the agreement to sale dated 22/9/2004 was without possession and the transfer deed were not registered in the name of the assessee till that property was sold by Mr Liladhar Jha to Mrs Indrawati & Others. The learned assessing officer has held that for these reasons consideration received by the assessee is not chargeable to tax as capital gain but as income from other sources. In fact according to the provisions of section 2 (14) the capital asset means property of any kind held by an assessee whether or not connected with his business or profession. Therefore, by entering into the agreement to sale on 22/9/2004 the assessee acquired the right to get this property registered in her name or her nominees’ name. For acquisition of the above right, the assessee has paid consideration on 22/9/2004 and subsequently deposited all the dues of Noida development authority. When the seller sold the above property to the third party, assessee received all the consideration in his bank account, which has not been disputed by the learned assessing officer. Therefore, the assessee earned the total consideration received on sale of the property by the original seller to Mrs. Indrawati and others. Assessee being witness in the sale deed does not go against the assessee. It is not in dispute that assessee has paid substantial sum to NOIDA for transfer deed registered in the name of Mr. Liladhar Jha . All these facts show that assessee has acquired right in the property on 22/9/2004. Such right is also a property u/s 2(14) of the act and hence capital asset, transfer of which is chargeable to tax as capital gain. It has been held by the honourable Delhi High Court in 302 ITR 255 in JK Kashyap vs Asst Commissioner of income tax that under section 2(47) extinguishment of any right in a capital asset was also considered to be transfer for the purpose of the Act. Since the property had not been transferred in the name of the assessee, the assessee became a party to the agreement as a witness having acquired interest in the property by virtue of the earlier agreement. Even if the assessee had not become the owner of the property due to litigation, the fact remained that he paid consideration for acquiring interest in the property and that interest was ultimately relinquished by him in favour of the new vendee by virtue of the agreement and the consideration received by him for relinquishing his right in the property, thus attracted the provisions of section 45(1) of the Act making him liable to capital gains tax. Further as such right was held by assessee since 22/9/2204 and transferred on 5/10/2012 assessee was liable to long-term capital gains tax. Hence the action of the ld AO in taxing the sum of Sale consideration of Rs 7531058/- and its confirmation by the ld CIT (A) is reversed. Further the ld AO has found that cost of acquisition of the above property shown by the assessee of INR 1 486554/– cannot be granted an Page | 5