Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, KOLKATA ‘A’ BENCH, KOLKATA
Before: Justice P.P. Bhatt & Shri P.M. Jagtap, Vice-
Per Bench:- This appeal filed by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals), Siliguri dated 20.11.2019, whereby he confirmed the action of the Assessing Officer in determining the long-term capital gain chargeable to tax in the hands of the assessee at Rs.2,16,48,185/- as against the long-term capital loss of Rs.18,74,37,484/- claimed by the assessee in the return of income.
The assessee in the present case is an individual, who filed her return of income for the year under consideration on 16.12.2016 declaring total income of Rs.1,92,140/-. The assessee vide a Gift Deed Assessment Year: 2016-2017 Jayasree Ghosh dated 29th July, 2015 had received two plots of land in L.R. Khatian No. 72/1, situated without Mouza Kalam, J.L. No. 76 under Gram Panchayat area, Pargana-Patharghata, P.S. Matigara, Sub-Division Siliguri in the District of Darjeeling from her husband Shri Rabindra Nath Ghosh. The assessee thereafter entered into an agreement with M/s Radiant Nirman Pvt. Limited for development of the said land on 16.09.2015. While computing the long-term capital gain arising from the said transaction, the value of land as on 01.04.1981 was adopted by the assessee at Rs.2,30,000/- per Katha as ascertained by the approved valuer and after deducting the indexed cost of acquisition as worked out at Rs.21,98,38,646/- from the sale consideration of Rs.3,24,01,162/-, long term capital loss of Rs.18,74,37,484/- was declared by the assessee in her return of income. Since the valuation of land as ascertained by the Approved Valuer as on 01.04.1981 @ Rs.2,30,000/- per Katha was found to be arbitrary and fictitious by the Assessing Officer, he made a reference to the District Valuation Officer, Kolkata for assessing the value of assessee’s land as on 01.04.1981. A notice under section 133(6) of the Income Tax Act, 1961 was also issued by the Assessing Officer to the Additional District Sub-Registrar (ADSR), Siliguri for providing the valuation of the assessee’s landed property as on 01.04.1981. Although no valuation report was received by the Assessing Officer from the DVO, Kolkata, a report was received by him from ADSR, Siliguri providing the data relating to sale of the similar immovable property in the same area in the year 1981. From the perusal of the said data, the Assessing Officer noted that the cost of one Katha of land in the same area was about Rs.11,250/-. Accordingly he worked out the cost of assessee’s land as on 01.04.1981 at Rs.9,94,725/- and the indexed cost of acquisition at Rs.1,07,52,977/- as against Rs.21,98,38,646/- claimed by the assessee. When this indexed cost of acquisition determined by him on the basis of the sale instances received from ADSR, Siliguri was confronted by the Assessing Officer to the assessee, the latter raised the following objections:-
Assessment Year: 2016-2017 Jayasree Ghosh (1) Value of land has been done of same area and not particular of my land. (2) Basis of valuation of land has not been disclosed.
(3) Evidences upon which has relied by ADSR for value of land has not been disclosed.
(4) Facts and classification of land whether agricultural, bastu, commercial, industrial etc. under which facts the value of land has been determined by the ADSR, Siliguri was not disclosed.
(5) Surrounding situation of land for value has not been revealed by the ADSR, Siliguri.
(6) Width of road, demand and approximate surroundings of land for which value has been made by the ADSR, Siliguri has not been revealed.
The Assessing Officer did not find the objections raised by the assessee to be sustainable as according to him, the indexed cost of acquisition adopted by him on the basis of the detailed and relevant sale data furnished by the appropriate authority was more authentic and reliable. He accordingly reduced the indexed cost of acquisition so determined by him at Rs.1,07,52,977/- from the sale consideration of Rs.3,24,01,162/- and computed the long-term capital gain chargeable to tax in the hands of the assessee at Rs.2,16,48,185/- in the assessment completed under section 143(3) vide an order dated 26.12.2018.
Against the order passed by the Assessing Officer under section 143(3), an appeal was preferred by the assessee before the ld. CIT(Appeals) challenging the addition made by the Assessing Officer by determining the long-term capital gain chargeable to tax at Rs.2,16,48,185/-. During the course of appellate proceedings before the ld. CIT(Appeals), it was pointed out on behalf of the assessee that the valuation of the assessee’s land as on 01.04.1981 was done by the DVO vide his report dated 20.05.2019 and since the indexed cost of acquisition Assessment Year: 2016-2017 Jayasree Ghosh as determined on the basis of the said valuation done by the DVO after completion of the assessment by the Assessing Officer was Rs.2,11,47,603/-, the long-term capital gain chargeable to tax was only Rs.15,34,997/- (taking into consideration the deemed sale value of Rs.2,26,82,600/-) as against the long-term capital gain of Rs.2,16,48,185/- computed by the Assessing Officer. The assessee also raised a new contention before the ld. CIT(Appeals) that the development agreement dated 16.09.2015 did not result in the transfer of her immovable property being land within the meaning of section 2(47)(v) of the Act and she, therefore, was not liable to pay any capital gain tax during the year under consideration. The submission made on behalf of the assessee on this aspect of the matter before the ld. CIT(Appeals) was as under:- “That mere possession to developer does not mean transfer u/s. 2(47)(v) of the Act as mere handing over the possession to developer does not come to the mischief of section 53A of the Transfer of Property Act, 1882 referred in section 2(47)(v) of the Act. The transfer in such a situation would take place upon the possession of the relevant flat being made over to the assessee by the developer No flat or constructed area has been transferred by the developer during the year and mere development agreement has been executed during the assessment year.
That chargeability to income tax under the Head CAPITAL GAINS operates on any profits or gains arising from the transfer of capital assets u/s.45(1) of the Act only and as there is no profit or gain just by executing development agreement, so, the assessee is not liable to pay any capital gain tax.
The judgment of Hon’ble High Court of Calcutta in case of PCIT –vs.- Infinity Infotech Parks Ltd. Reported in 307 CTR 105 squarely apply to our case. A copy of judgment is enclosed herewith and marked as Annexure-5 for ready reference”.
Assessment Year: 2016-2017 Jayasree Ghosh
The submission made by the assessee did not find favour with the ld. CIT(Appeals), who proceeded to confirm the action of the Assessing Officer in determining the long-term capital gain chargeable to tax in the hands of the assessee at Rs.2,16,48,185/- for the following reasons given in paragraph no. 4 of his impugned order:- “4. I have perused the assessment order, grounds of appeal and the submission made by the appellant on this issue. The ld. A.O. has added an amount of Rs.2,16,48,185/- under the head “Long Term Capital Gain” based on the information/data report furnished by the ADSR, Siliguri who is the appropriate authority of the State Government for the valuation of the land. The ld. A.O. has made detailed discussion in the assessment order after having made enquiries with the appropriate authorities and determined LTCG accordingly. During appeal proceedings, the appellant has submitted deed of gift, agreement paper, valuation report of a land owned by Shri Jayasree Ghosh etc. and certain other documents also. After having gone through the submission of the appellant and the assessment order, I am of the opinion that the ld. AO has assessed long term capital gain based on the actual facts received from the appropriate authorities of the State Government. Accordingly, the addition made by the AO amounting to Rs.2,16,48,185/- is hereby confirmed and the ground of appeal is dismissed”.
Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal on the following grounds:- “(1) For that the ld. CIT(A) was not justified in not holding that the incidence of capital gains did not arise in the instant year on mere handing of the land to the developer and/or execution of development agreement.
(2) For that on the facts and in the circumstances of the case, the ld. CIT(A) was not justified in confirming the addition made by the AO of Rs.2,16,48,185/- as long term capital gain on land as against the long-term capital loss claimed by the assessee of Rs.18,74,37,484/-.
(3) For that on the facts and in the circumstances of the case, the ld. CIT(A) was not justified in confirming the action of the ld. AO in computation of the indexed cost of Assessment Year: 2016-2017 Jayasree Ghosh
Rs.1,07,52,977/- as against the assessee’s claim of the indexed cost at Rs.21,98,38,646/-.
(4) For that on the facts and in the circumstances of the case, the ld. CIT(A) was not justified in confirming the action of the ld. AO in not considering the fair market valuation of the registered valuer as on 01.04.1981, which is based on actual facts and situation of land.
(5) Without prejudice to the above grounds, the ld. CIT(A) ought to have the directed the AO to compute the indexed cost of acquisition of land sold as per the value determined by the DVO”.
We have heard the arguments of both the sides and also perused the relevant material available on record. In support of the issue raised in Ground No. 1, the ld. Counsel for the assessee has submitted that the agreement entered into by the assessee on 16.12.2015 with M/s. Radiant Nirman Private Limited for development of her land did not result in any transfer of the said immovable property within the meaning of section 2(47)(v) of the Act and the execution of the said development agreement, therefore, did not give rise to any capital gain, which was chargeable to tax in the hands of the assessee during the year under consideration. In support of this contention, he has relied on the decision of the Hon’ble Calcutta High Court in the case of PCIT –vs.- Infinity Infotech Parks Limited [307 CTR 105]. It is, however, observed that the assessee herself had declared long-term capital loss in her return of income for the year under consideration as arising as a result of the execution of the development agreement with M/s. Radiant Nirman Pvt. Limited on 16.12.2015 and even during the course of assessment proceedings, no such case was made out by the assessee that there being no transfer of her land as a result of the said development agreement within the meaning of section 2(47)(v) of the Act, there was no capital gain arising from the said transaction, which was chargeable to tax in her hands for the year under consideration. It appears that this claim was made by the Assessment Year: 2016-2017 Jayasree Ghosh assessee for the first time during the course of appellate proceedings before the ld. CIT(Appeals) but the same was not specifically considered by the ld. CIT(Appeals), inasmuch as, there was no finding or decision whatsoever given by the ld. CIT(Appeals) on this aspect of the matter in his impugned order. As rightly contended by the ld. D.R., this issue thus has not been considered and decided either by the Assessing Officer or by the ld. CIT(Appeals) on merit by examining/verifying the terms and conditions of the relevant development agreement. Since the same goes to the root of the matter, we consider it fair and proper and in the interest of justice to send it back to the Assessing Officer for such examination/verification. The impugned order of the ld. CIT(Appeals) is accordingly set aside and this matter is restored to the file of the Assessing Officer for deciding the same on merit in the light of the decision on Hon’ble Jurisdictional High Court in the case of Infinity Infotech Parks Limited (supra) after examining/verifying the relevant facts and evidence. The Assessing Officer is directed to give sufficient and proper opportunity of being heard to the assessee before deciding this issue.
As regards the other issue involved in this case as raised in Grounds No. 2 to 5 relating to the computation of long-term capital gain, it is observed that the same will become infructuous if the assessee succeeds on the issue raised in Ground No. 1, which has been restored by us to the file of the Assessing Officer for fresh consideration. However, if the assessee fails to succeed on the said issue, the computation of long- term capital gain arising to the assessee as a result of execution of development agreement during the year under consideration will become relevant. In this regard, the ld. Counsel for the assessee has submitted that since the valuation report prepared by the DVO as on 20.05.2019 in response to a reference made by the Assessing Officer under section 55A of the Act was not available with the Assessing Officer when he completed the assessment as on 26.12.2018, the Assessing Officer may be directed to Assessment Year: 2016-2017 Jayasree Ghosh consider the same while determining the long-term capital gain chargeable to tax in the hands of the assessee. We find merit in this contention of the ld. Counsel for the assessee. The Assessing Officer is accordingly directed to re-compute the long-term capital gain chargeable to tax in the hands of the assessee after taking into consideration the valuation report of the DVO dated 20.05.2019 and after giving the assessee proper and sufficient opportunity of being heard.
In the result, the appeal of the assessee is treated as allowed for statistical purposes to the extent indicated above. Order pronounced in the open Court on August 12, 2020.