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Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED, ACCOUNTANT MEMEBR & SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMEBR
PER WASEEM AHMED, AM:
The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-7, Ahmedabad, arising in the matter of assessment order dated 29.03.2014 passed by Assessing Officer under s. 143(3) of the Income Tax Act, 1961 (here- in-after referred to as "the Act") relevant to the Assessment Year 2011-2012.
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The assessee has raised the following grounds of appeal:
“1.1 The order passed u/s.250 on 13.01.2016 for A.Y. 2011-12 by CIT(A)-7, Abad upholding partly the additions/disallowances made by AO is wholly illegal, unlawful and against the principles of natural justice.
2.1 The Ld.CIT(A) has grievously erred in law and -on facts in confirming the following disallowances/additions:
(a) FMV as on 01.04.1981 of Chankheda land (b) FMV as on 01.04.81 of Tribhovan Park Bungalow - (c) Stamp duty value U/S.50C Rs.42,91,837/- (d) Exemption u/s.54F - (e) Unexplained loan and gifts Rs. 12,63, 000/- (f) Unexplained cash deposits in bank Rs. 5,90, 000/
2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the above said additions/disallowances.
3.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the. reference made u/s.55A for valuation as on 01.04.1981 to DVO made by AO as well as the valuation determined by DVO at Rs.183/- per sqm in respect of land at Chandkheda bearing survey No. 621/3.
3.2 That-in the facts, and circumstances of the case as well as in law, the Ld.CIT(A) ought not have confirmed the fair market value as on 01.04.1981 in respect of Chandkheda land at Rs.183/- per sqm.
4.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the reference made u/s.55A for valuation as on 01.04.1981 to DVO made by AO as well as the valuation determined by DVO at Rs.402/- per sqm in respect of bungalow no. 23 at Tribhovan Park Society, Sabarmati, Ahmedabad.
4.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not have confirmed the fair market value as on 01,04.1981 in respect of bungalow no. 23 at Tribhovan Park Society, Sabarmati, Ahmedabad at Rs.402/- per sqm estimated by DVO.
5.1 The Ld.CIT(A) has grievously erred in law and on facts in not allowing the exemption U/S.54F claimed during the asst. proceedings by letter dated 26.03.2014, though the issue was well settled and fully covered by the decision of jurisdictional court in case of Mitesh Impex Ltd.
6.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the loan and gifts aggregating to Rs. 12,63,000/-, though appellant had fully furnished details and discharged the burden cast upon him to explain the source.
7.1 he Ld.CIT(A) has grievously erred in law and on facts in confirming the addition of RS.5,90,000/- towards cash deposits on various dates, though the appellant had fully explained the same.”
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The 1st interconnected issue raised by the assessee is that the learned 3. CIT-A erred in confirming the order of the AO by sustaining the addition made under the head capital gain.
The necessary facts are that the assessee in the present case is an individual and filed his return of income declaring income under the head salary, other sources and long-term capital loss. The assessee was the owner of 2 properties. One of them was the land and the other one was the bungalow. The assessee was the owner in the land to the tune of 10% only. Both the properties were acquired by the assessee before 1st day of April 1981 which were sold in the year under consideration. The necessary details of both the properties along with sales and other details stand as under:
S Particulars To Date of Date of Sales Purchases Improvement Trans Gain / Loss r tal sale purchase value fer . qu (Rs.) Cost an tit y Value Indexed Value Indexed 1 31, 24/05/10 01/04/81 2000000 687600 4888836 -2888836 Tribhovan Park Co. Op. Housi. Sabarmati, A’bad. 2 Survey No. 05/04/10 01/04/81 2509888 292000 2076120 433768 621/3 Sim – Chandkheda , A’bad Index of 2010-11: 711 Total -2455068
4.1 The assessee has also furnished the valuation report obtained from the registered valuer in support of the value of the properties declared as on 1 April 1981 who valued the same at Rs. 582 per square meter for the land and the Bungalow at Rs. 6,87,600.00 only. However, the AO was not satisfied with the valuation of both the properties done as on 1 April 1981. As per the AO, it was valued at a very exorbitant value. Thus, the AO made reference under the provisions of section 55A of the Act to the District Valuation Officer who valued the land at ₹ 183 per square meters and the bungalow at ₹ 2,67,805 as on 1 April 1981.
4.2 Besides the above the AO has also obtained valuation of the properties in question from the collector of stamp duty valuation. As per the information
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received from the collector office, the Jantri Value was applicable in Gujarat from the year 1999 and the value as on 1 January 1999 of the said land was at ₹ 80 per square meters only. Thus the AO observed the difference between the valuation done by the District Valuation officer and the collector of stamp duty. As per the DVO the rate per square meters of land was at ₹ 183 as on 1 April 1981 whereas the rate provided by the collector of Ahmedabad was at ₹ 80 in the year 1999. As per the AO the value of the land as on 1 April 1981 must have been much lesser than the value provided by the collector of stamp duty office @ ₹ 80 which is applicable from the year 1999. Thus the AO revised the capital gain shown by the assessee in the manner as discussed below:
“4.10 Accordingly, in the absence of Jantry rate of land for F.Y. 1981-82, the Jantry rate as on 01.04.1999 of Rs.80 is taken and working of the capital gain on the basis of said rate is worked out as under
Rs. 80 X 5863 So. Mt. = Rs. 469440/- (Total value of the land) = Rs. 42,254/- (1/11th assessee's share) Rs. 4,69.440 11.11% (Share)
Sr. Particulars Date of sale Date Of Sales Value Purchase Value Purchase Capital Gain No. purchase Indexed 1. Land Sur. No. 05.04.2010 01.04.1981 Rs.25.09.888/- Rs.42,254/- Rs.77,230/- Rs.24,32,658/- 621/3
Index of 2010-11 : 711 Index of 1999 : 389
In view of the above, an amount of Rs. 24,32,658/- is considered as long term capital gain from the sale of above mentioned land.”
4.3 Likewise, the AO also found that the Assistant Valuation Officer of the Income Tax Department has considered the value of the building as on 1 April 1981 at ₹ 2,67,805.00 only. According to the AO, the capital gain needs to be revised after considering the value of the property taking cost of acquisition as on 1 April 1981 at ₹ 2,67,805.00 instead of 6,87,600.00 shown by the assessee. The AO further has also adopted the sale consideration by taking the stamp duty value in the manner provided under section 50C of the Act. As such, the AO has revised the long-term capital gain with respect to the impugned bungalow by observing as under:
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Sale Consideration Value of Rs.20,00,000/- Rs. 42,91,837/- However, as per 50C of the IT Act, the said value taken of Rs.42,91,837/- (Rs.210300 Stamp Duty Paid / 4.9% Stamp Duty) Less :- Cost of Acquisition Rs. 19,04,093/- Indextion Cost Rs.2,67,805X711 = Rs.19,04,093/- 100
LONG TERM CAPITAL GAIN Rs. 23,87,744/-
4.4 In view of the above the AO has determined the long-term capital gain from the sale of land and the bungalow at Rs. 24,32,658.00 and 23,87,744.00 respectively aggregating to ₹ 48,20,402.00 and added to the total income of the assessee.
Aggrieved assessee preferred an appeal to the learned CIT(A) .
The learned CIT(A) after considering the order of the AO and submission of the assessee directed the AO to recalculate capital gain on sale of land after taking value as on 1st April 1981 at Rs. 183 per square meters as valued by the DVO whereas the learned CIT(A) confirmed the working of the capital gain of the AO with regard to sale of bungalow.
Being aggrieved by the order of the learned CIT(A) the assessee is in appeal before us.
7.1 The learned AR before us filed a paper book running from pages 1 to 468 and submitted that the assessee has declared the value of the land as on 1-4-1981 based on the valuation report which is higher than the value of the land as worked by the AO. But there was no power to the AO under the statute for the year under consideration to reject such value determined by the registered valuer as on 1st April 1981. Therefore the AO was bound to accept the value determined by the registered valuer as on 1st April 1981. In this regard, the learned AR relied on the judgment of Hon’ble Gujarat High Court in the case of CIT Vs. Gauranginiben S. Shodhan Indl reported in 367 ITR 238.
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The learned AR also drew attention on pages 120 to 135 where the valuation report was placed.
7.2 On the other hand the learned DR vehemently supported the order of the authorities below.
We have heard the rival contentions, and the perused the materials available on record. Admittedly, the assessee transferred two properties being land and bungalow and the cost of the same as on 1 April 1981 was valued by the registered valuer which were not believed by the AO for the reason that the registered valuer not provided the basis of valuation and evidence thereto. In the opinion of the AO the value made by the registered valuer was exorbitant. Thus the AO referred the issue to the DVO under the provision of section 55A of the Act. Thus, the issue before us arises for our adjudication whether the AO can substitute the value determined by the registered valuer as on 1st April 1981 in the given facts and circumstances. For this purpose we refer to the provisions of section 55A of the Act as applicable for the year under consideration which reads as under:
[Reference to Valuation Officer. 4355A.With a view to ascertaining the fair market value of a capital asset for the purposes of this Chapter 44, the 45[Assessing] Officer may refer the valuation of capital asset to a Valuation Officer— (a) in a case where the value of the asset as claimed by the assessee is in accordance with the estimate made by a registered valuer, if the 45[Assessing] Officer is of the opinion that the value so claimed is less than its fair market value ;
(b) in any other case, if the 45[Assessing] Officer is of opinion— (i) that the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than such per- centage 46-47 of the value of the asset as so claimed or by more than such amount 46-47 as may be prescribed in this behalf ; or (ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do,
8.1 A plain reading of the above provision reveals that the AO may refer the valuation of capital assets to a valuation officer where he’s of the opinion that the value so claimed by the assessee is less than its fair market value. It is an
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undisputed fact that the assessee did not claim the value of the impugned land as on 1st April 1981 which is less than the fair market value. As such the assessee has claimed higher value than the fair market value as per the AO. Thus in our considered view, the AO has no power to substitute the value of capital assets in the given facts and circumstances. Accordingly, the AO cannot substitute the value declared by the assessee as on 1st April 1981. In this regard, we draw support and guidance from the judgment of Hon’ble Gujarat High Court in the case of CIT Vs. Gauranginiben S. Shodhan Indl (supra) wherein it was held as under:
“15. Coming to the question of reference to DVO for ascertaining the fair market value as on 1.4.1981 also, we find that such reference was not competent. We have noticed that prior to the amendment in section 55A with effect from 1.7.2012 in a case, the value of the asset claimed by the assessee is in accordance with the estimate made by the Registered Valuer, if the Assessing Officer was of the opinion that the value so claimed was less than its fair market value as on 1.4.1981. It would not be the case of the Assessing Officer that the value of the asset shown as on 1.4.1981 was less than the fair market value. Such clause, therefore, as it stood at the relevant time, had no application to the valuation as on 1.4.1981. We are conscious that with effect from 1.7.2012, the expression now used in clause (a) of section 55A is "is at variance with its fair market value". The situation may, therefore, be different after 1.7.2012. We are, however, concerned with the period prior thereto. Clause (b) of section 55A is in two parts and permits a reference to DVO if the Assessing Officer is of the opinion that (i) the fair market value of the asset exceeds the value of the asset so claimed by the assessee by more than such percentage of the value of the asset so claimed or by more than such amount as may be prescribed in this behalf; or (ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do. Sub- clause(i) of clause (b) also for the same reasons recorded above, would have no bearing on the fair market value as on 1.4.1981. The Assessing Officer had not resorted to sub-clause(ii) of clause (b). In any case, clause (b) would apply where clause(a) does not apply since it starts with the expression "in any other case". In other words if assessee has relied upon a Registered Valuer's Report, Assessing Officer can proceed only under clause (a) and clause (b) would not be applicable. 16. In the present case, admittedly the assessee had relied on the estimate made by the Registered Valuer for the purpose of supporting its value of the asset. Any such situation would be governed by clause (a) of section 55A of the Act and the Assessing Officer could not have resorted to clause (b) thereof as held by the Division Bench of this Court in the case of Hiaben Jayantilal Shah v. ITO [2009] 310ITR 31/181 Taxman 191 (Guj.). In the said decision, it was held and observed as under:— "10. Under clause(a) of sec. 55A of the Act under the Assessing Officer is entitled to make the reference to the Valuation Officer in a case where the value of the asset as claimed by the assessee is in accordance with the estimate made by the Registered Valuer, if the Assessing Officer is of the opinion that the value so claimed is less than the fair market value. In any other case, as provided under clause(b) of Sec. 55A of the Act, the Assessing Officer has to record an opinion that (i) the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than such percentage or by more than such an amount as may be prescribed; or (ii) having regard to the nature of the asset and other relevant circumstances, it is necessary to make such a reference."
ITA No. 374/Ahd/2016 [Shri Arvindbhai Popatlal Patel Vs. ITO] A.Y. 2011-12 - 8 - 17. In the result, we see no reason to interfere. However, we have given our independent reasons and should not be seen to have confirmed the reasoning adopted by the Tribunal in the impugned judgment. Tax Appeal is dismissed.”
8.2 Thus there remains no ambiguity that there was no power under the statute to the AO to refer the matter to the DVO or to substitute the value of the impugned land as on 1st April 1981. Therefore we hold that the AO in the given facts and circumstances cannot substitute the value of the impugned land as on 1st April 1981.
8.3 Before parting, we want to make it flawless that there was an amendment under the provisions of section 55A of the Act by the Finance Act 2012 which reads as under:
[Reference to Valuation Officer.
7855A. With a view to ascertaining the fair market value of a capital asset for the purposes of this Chapter 79, the 80[Assessing] Officer may refer the valuation of capital asset to a Valuation Officer— (a) in a case where the value of the asset as claimed by the assessee is in accordance with the estimate made by a registered valuer, if the 80[Assessing] Officer is of opinion that the value so claimed 80a[is at variance with its fair market value]; (b) in any other case, if the 80[Assessing] Officer is of opinion— (i) that the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than such per centage81 of the value of the asset as so claimed or by more than such amount81 as may be prescribed in this behalf ; or (ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do,
8.4 A plain reading of the above-amended provisions reveals that the AO was given power to refer the matter to the valuation officer if he’s of the opinion that the value claimed by the assessee is at variance with the fair market value. Indeed the AO can refer the matter to the valuation officer if registered valuer value the property as on 1st April 1981 which is at variance with the fair market value. However such amendment is prospective in nature and therefore the same cannot be applied to the earlier years. In this regard, we find support and guidance from the judgment of Hon’ble Gujarat High Court in the case of CIT Vs. Gauranginiben S. Shodhan Indl (supra). The relevant
ITA No. 374/Ahd/2016 [Shri Arvindbhai Popatlal Patel Vs. ITO] A.Y. 2011-12 - 9 - extract of the judgment has already been extracted in the preceding paragraphs.
8.5 As the dispute before us relates to the year prior to the amended provisions of section 55A of the Act which is applicable prospectively. Therefore such amended provisions cannot be applied to the case on hand. Thus we are inclined to reverse the order of the learned CIT-A, and accordingly we direct the AO to work out the capital gain on sale of land and bungalow after taking the value as on 1st April 1981 as declared by the assessee. Hence the ground of appeal of the assessee is allowed.
The next issue raised by the assessee is that the learned CIT(A) erred in not allowing the claim of exemption under section 54F of the Act made during the assessment proceeding.
At the outset we note that we have allowed the main ground of the assessee with regard to value of the property as on 1st April 1981 which will result into long term capital loss in the hand of the assessee. Therefore, the issue of allowance of exemption under section 54F of the Act become redundant. Hence the ground of appeal of the assessee is hereby dismissed being infructuous.
The next issue raised by the assessee is that the learned CIT(A) erred in sustaining the addition of Rs. 12,63,000/- made under section 68 of the Act on account of loans or gifts.
The AO during the assessment proceeding found that the bank account of the assessee is credited for certain amount received from the following parties:
S. No Name of party Amount credited 1. Darshan Patel Rs. 4,96,100/-
ITA No. 374/Ahd/2016 [Shri Arvindbhai Popatlal Patel Vs. ITO] A.Y. 2011-12 - 10 - 2. Diptiben D Patel Rs. 3,76,100/- 3. Arvind D Patel Rs. 16,100/- 4. Arvind P Patel Rs. 2,50,000/- 5. Hasumatiben A Patel Rs. 1,25,000/- Total Rs. 12,63,300
The AO found that no detail was submitted by the assessee with regard to the amount credited from Shri Arvind D Patel and Arvind P Patel. In case of remaining parties’ details such confirmation, ITR and bank statement etc. were furnished. But on perusal of the same it was found that they were showing low income and there was cash deposited before the amount transferred to the assesse. Thus the credit worthiness of the creditor not established. Hence the AO added the same to the income of the assessee by treating the same as unexplained cash credit under section 68 of the Act.
On appeal by the assessee, the learned CIT(A) also confirmed the addition made by the AO.
Being aggrieved by the order of the learned CIT(A), the assessee is in appeal before us.
15.1 The learned AR for the assessee before us submitted that the assessee has discharged primary onus cast under section 68 of the Act by furnishing confirmation from the creditor, their bank statement and copy of ITR. The assessee is not required to prove the sources of source. Therefore no addition under section 68 of the Act needs to be made.
15.2 On the other hand the learned DR vehemently supported the order of the authorities below.
We have heard the rival contentions of both the parties and perused the materials available on record. The provision of section 68 of the Act fastens the
ITA No. 374/Ahd/2016 [Shri Arvindbhai Popatlal Patel Vs. ITO] A.Y. 2011-12 - 11 - liability on the assessee to provide the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. The assessee in order to prove the identity and credit worthiness of creditor and genuineness of transaction has furnished the details such as copy of ITR, copy of ledger account confirmation, bank statements, etc. The authorities below also not doubted the identity of the creditor and genuineness of the transaction. The addition was made only for the reason that the AO was not satisfied with the credit worthiness of the creditors. The view of the AO was based on fact that there were cash deposit in the bank of the creditors. It is well settled position of law that the assessee is only required to prove to sources of credit in his/her/it books of accounts not the sources of source. In our considered view the credit worthiness of the creditors cannot be doubted merely on the basis that there were cash deposit in their bank account unless some adverse material brought on record. Further, if AO has any reservation with regard to the credit worthiness, the AO should have conducted independent enquiry from the parties or brought contrary materials on record. Thus, in view of the above and after considering the facts in totality, we are of the view that the assessee has discharged primary onus cast under section 68 of the Act and onus shifted on the AO to bring contrary material by making independent inquiries but the AO failed to do so. Hence, we hereby set aside the order of the learned CIT(A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is hereby allowed.
The last issue raised by the assessee is that the learned CIT(A) erred in sustaining the addition made by the AO for ₹5 lakhs representing the deposit of cash in the bank account.
It was found that there cash aggregating to Rs. 5.9 lakh deposited in the bank of the assessee on different dates. The assessee during the assessment proceedings submitted that cash was deposited out of the agriculture income. However, the assessee failed to file the documentary evidence suggesting that the assessee has earned income from the agricultural activity. Therefore, the
ITA No. 374/Ahd/2016 [Shri Arvindbhai Popatlal Patel Vs. ITO] A.Y. 2011-12 - 12 - AO in the absence of evidence of agricultural activity treated the deposit of cash for ₹5.9 lakhs, as unexplained income of the assessee and therefore added the same to the total income of the assessee.
Aggrieved assessee preferred an appeal to the learned CIT(A) who has also confirmed the order of the AO by observing as under:
“11. Ground of appeal Nos. 9.1 & 9.2 are in respect of addition of Rs.5,90,000/- on account of cash deposits on various dates. The AO did not accept that the same was out of agricultural income in the absence of any evidence on agricultural land-holding or income from agricultural produce. The appellant has not offered any explanation in respect of this ground during the appellate proceedings and hence the addition is confirmed. Grounds of appeal Nos. 9.1 & 9.2 are therefore dismissed.”
Being aggrieved by the order of the learned CIT(A), the assessee is in appeal before us.
20.1 The learned AR before us contended that the cash was deposited out of the agricultural operations which is exempted income and therefore the same cannot be added to the total income of the assessee.
20.2 On the other the learned DR vehemently supported the order of the authorities below.
We have heard the rival contentions of both the parties and perused the materials available on record. The onus lies upon the assessee to justify the cash deposit in the bank account represents the agriculture income. But the assessee has failed to submit any documentary evidence before the lower authorities. At the time of hearing before us, a question was also put up to the learned AR for the assessee why the agriculture income was not included in the total income of the assessee for the purpose of calculating the tax. The learned AR could not make any satisfactory reply. Thus in the absence of sufficient documentary evidence, we do not find any merit in the argument advanced by
ITA No. 374/Ahd/2016 [Shri Arvindbhai Popatlal Patel Vs. ITO] A.Y. 2011-12 - 13 - the learned AR appearing on behalf of the assessee. Accordingly the ground raised by the assessee is hereby dismissed.
In the result appeal filed by the assessee is partly allowed.
This Order pronounced in Open Court on 29/08/2022
Sd/- Sd/- (SIDDHARTHA NAUTIYAL) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad: Dated 29/08/2022 True Copy S.K.SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।