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Income Tax Appellate Tribunal, DIVISION BENCH ‘B’, CHANDIGARH
Before: MS.DIVA SINGH & MS.ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘B’, CHANDIGARH BEFORE MS.DIVA SINGH, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER
ITA No.364/Chd/2017 (Assessment Year :2007-08) Sh. Sheo Ram, Vs. The Income Tax Officer, Village Jaroda, Ward 3, Jagadhari. Yamunanagar. PAN: FHCPS9095D (Appellant) (Respondent)
Appellant by : Shri Rohit Goel Respondent by : Shri Ashish Abrol, DR Date of hearing : 09.01.2018 Date of Pronouncement : 09.04.2018
ORDER PER ANNAPURNA GUPTA, A.M.: This appeal has been preferred by the assessee against
the order of Ld. Commissioner of Income Tax (Appeals),
Panchkula (hereinafter referred to as (‘Ld.CIT(Appeals)’)
dated 14.9.2015.
At the outset it may be pointed out that there was
delay of 457 days in filing the appeal before us. An
application requesting condonation of delay was filed on
23.3.2017. Referring to the same, the Ld. counsel for
assessee stated that the delay was on account of non
receipt of the original order passed by the CIT(Appeals)
dated 14.9.2015 and that the same was received
subsequently only on 5.12.2016 after a letter was filed by
the assessee to the CIT(Appeals) dated 28.10.2016 asking
for a copy of the order, if any, passed in the case. It was
pointed out that on receipt of this application by the
assessee, the administrative officer of the CIT(Appeals) vide
office letter dated 5.12.2016 ,sent a copy of the order to the
assessee after which the appeal was filed within stipulated
time. The Ld. counsel for assessee, therefore, stated that
the delay in filing the appeal could not be attributed to any
fault on the part of the assessee but due to the late receipt
of the order of the CIT(Appeals).
The Ld. DR, on the other hand opposed the
condonation of delay application stating that the order was
dispatched from the office of the CIT(Appeals) by Speed Post
on 17.9.2015 and had not been received back. The Ld. DR
drew our attention to the communication received from the
office of the CIT(Appeals), Panchkula in this regard, on
being asked by the Registry of the I.T.A.T. to intimate the
exact date on which the order was served on the assessee.
The Ld. DR also drew our attention to the copy of the Speed
Post received mentioning the fact of the dispatch of the
order on the aforestated date to the assessee which was
enclosed alongwith the reply filed by the office of the
CIT(Appeals), in response to the request of the Registry in
this regard.
In response to the same, the Ld. counsel for assessee
reiterated that the copy of the original order which was
claimed to be dispatched on 17.9.2015 was never received
by the assessee and was received only on a request made to
the CIT(Appeals) for providing a copy vide assessee’s letter
dated 28.10.2016. It was also stated that a letter was also
written under the RTI Act to the Central Public Information
Officer and Superintendent, Post Office, Ambala for
confirming the delivery of post dated 21.9.2015, in response
to which the assessee was informed that records relating to
booking and delivery of Speed Post were preserved only for
a period of six months and, therefore, no record of the
delivery of the CIT(Appeals)’s order to the assessee was
available with the department of Post Office. All the above
facts were stated by the assessee on oath in the form of an
affidavit which was produced before us. The Ld. counsel for
assessee further referring to the application for condonation
of delay pointed out that the assessee was an illiterate
person having only agricultural income as his source of
income and was, therefore, not required to file his return of
income. It was further pointed out that in the impugned
assessment year no return was originally filed and it was
only when notice u/s 148 was received that the return was
filed and when the assessment was framed, making addition
to the income of the assessee, the service of a professional
were engaged for filing appeal against the said order. The
Ld. counsel for assessee referring to the application for
condonation of delay stated that the assessee was never
aware of the intricacies of income tax matters and did not
follow up the status of appeal proceedings from the counsel
and that it was only when a phone call was received from
the Income Tax office for depositing the demand then the
assessee contacted his counsel in the month of November,
2016 enquiring the status of appeal. The Ld. counsel for assessee stated
that in view of the background of the assessee, the delay be condoned.
We have heard both the parties and find that the assessee is an
illiterate agriculturist who has never filed his return in the past. We find
that these statements were made on affidavit by the assessee and were
never rebutted by the Revenue. We further find that in the present
peculiar facts and circumstances of the case, no advantage can be drawn
by the assessee by filing the appeal late, nor any disadvantage is caused
to the Revenue if the delay is condoned. In fact there is no vested right
with the Revenue that on account of late filing of appeal by the assessee
the Revenue is ousted from its settled position. Therefore, being satisfied
with the explanation of the assessee, we deem it appropriate to condone
the delay. This order was pronounced in open court in the presence of
both the parties and hearing of the appeal was thereafter directed to be
proceeded with.
We shall now proceed to adjudicate the appeal before us.
Brief background of the case is that the Assessing Officer had
information about sale of half share of land by the assessee in village
Jaroda, Yamunanagar for Rs.7,51,95,313/- to one M/s Jewel Projects
Pvt. Ltd., New Delhi on 20.3.2007. Since the land was a capital asset,
falling within 8 km. of the municipal limit, the capital gain on such sale
was taxable and, therefore, the Assessing Officer issued notice u/s 148
of the Act for taxing the capital gain earned by the assessee on the
impugned transaction. In response to the same, the return was
filed by the assessee declaring Long Term Capital Gains of
Rs.41,17,969/- on account of the said transaction. During
assessment proceedings thereafter the Assessing Officer
confronted the assessee with the fact that complete capital
gain on account of the aforesaid transaction had not been
disclosed by the assessee but in fact capital gain pertaining
to the amount received by the assessee on account of the
said transaction in the impugned year in cash amounting to
Rs.1,50,000 and vide cheque dated 15.3.2017 amounting to
Rs.32,67,969/- had been disclosed. The Assessing Officer
noted that the remaining amount of Rs.3,41,79,688/-
received vide undated cheque No.009611 and realised by
the assessee on 14.8.2008 had not been considered for the
purpose of returning the capital gain, which in fact had
been offered to tax in the next year i.e. assessment year
2009-10. Due reply was filed by the assessee , after
considering which the Assessing Officer held that in the
facts of the present case wherein the sale consideration was
partly paid and partly promised, the immovable property is
to be deemed to have been transferred on execution and
registration of sale deed if the possession has been given to
the buyer as per the provisions of section 54 of the Transfer
of Property Act. The Assessing Officer noted that the
assessee had deposed before the Registering Authority that
the possession of land had been handed over to the vendee.
He, therefore, held that the claim of the assessee that there
would be two different dates for effecting the transfer in the
present case, was not tenable and accordingly, whole of the
sale consideration of Rs.3,68,96,010/- (assessee’s share)
was held to be taxable in the impugned assessment year.
Aggrieved by the same, the assessee filed appeal before
the Ld.CIT(Appeals), who upheld the order of the Assessing
Officer ,dismissing the assessee’s appeal.
Aggrieved by the same, the assessee has come up in
appeal before us raising following effective grounds:
“1. The learned CIT (Appeals) has erred in taw and facts in confirming an addition of Rs. 3,68,96,060/-made by AO as long term capital gain on sale of agriculture land measuring 109 kanal 7.5 marla for a consideration of Rs. 3,75,97,657/- by holding the transfer of land in the year under consideration despite the fact that only 10% of the sale consideration was received during the year and balance 90% consideration was received on 14.08.2008 i.e. AY 2009-10. 2. That learned CIT (Appeals) has erred in law and facts in not allowing the benefit of investments in new agriculture land amounting Rs. 3,08,96,330/- u/s 54B & construction of house amounting Rs. 43,00,000/- u/s 54 F invested subsequent to the receipt of money against sale of agriculture land. 3. That learned CIT (Appeals) has erred in law and facts in adopting indexed cost of land valued on the basis of land value on 1-4-1981 at Rs. 7,01,597/-. 4. That learned CIT (Appeals) has erred in law and faces in confirming the AO action by not allowing the benefit of improvement cost of land. 5. That authorities below has erred in law and facts in reopening the assessment u/s 148. 9. No arguments vis-a-vis Ground No.5 were made before
us. The same is therefore dismissed.
Further, Challenging the action of the CIT(Appeals) in
confirming the addition of Rs.3,68,96,060/- made by the
Assessing Officer as Long Term Capital Gains earned by the
assessee during the impugned year on account of sale of
land, in ground No.1, the Ld. counsel for assessee during
the course of hearing before us stated that the issue was
squarely covered by the judgment of the Chandigarh Bench
of the I.T.A.T. in group of cases with the lead case being
Shri Rajiv Kumar Vs. ITO in ITA No.17/Chd/2016 dated
29.6.2016 and which decision was subsequently followed in
the case of Sh.Purshottam Kumar, Smt.Payal Kumari and
Sh.Parveen Kumar Vs. ITO, Ward ,1,Yamunanagar in ITA No
968 to 971/Chd/2014 & 1185/Chd/2012 dated 17-08-
16.Copies of both the orders were placed before us.
Drawing our attention to the order passed in the case of
Rajiv Kumar (supra), Ld.Counsel for the assessee stated
that in the said case also the facts were identical with that
of the assessee wherein the land was acquired by builders
making only part payment of around 10% of the entire
consideration and promising to pay the balance vide
undated cheque and getting the sale deed registered in their
favour. It was pointed out that in the said case it was
brought to the notice of the Bench that the builders had
tried to dupe innocent agriculturists in this manner by
acquiring their lands by making meager payment of the
aggregate sale consideration, promising to pay the balance
in future, which in fact was never paid to the agriculturists.
It was pointed out that the agriculturists on being so duped
had filed case before the Hon'ble Punjab & Haryana High
Court who had ordered an investigation in the matter and
after considering the report of the investigator had directed
the Builders to make payment of the balance amount to the
agriculturists, which was paid and thus realized by the
assessee only in the succeeding year. It was pointed out to
the Bench in the said case that in the year when the sale
deed was registered the intention of the buyers was clearly
not to make payment of the entire agreed amount. It was
also pointed out that it was agreed to handover the
possession only when the complete payment was made to
the sellers on failure of which the sale deed would be
cancelled. The Ld. counsel for assessee pointed out from the
order that taking note of these averments made before it
and considering the evidences placed before it
substantiating the stated facts, the I.T.A.T. held that the
transfer could not be said to have taken place in the
impugned year but only when the final payment was
received by the assessee. It was pointed out that the
I.T.A.T. on this basis deleted the addition made by the
Assessing Officer of the entire capital gains in the year of
registration of the sale deed. The Ld. counsel for assessee
stated that the facts in the present case were identical to
that in the case of Rajiv Kumar & Others (supra),
Purshottam Kumar & Tejinder Kumar and a chart pointing
out identical facts was placed before us as under:
No. PARTICULARS Facts of Rajiv Facts of Facts of Facts of Sheo Ram Kumar ITA No. Tajinder Purshotam 17/CHD/2016 Kumar Kumar ITA ITA No.968 & No.19/CHD/ 969/CHD/20 2016 14 1. Date of 20-3-2007 20-3-2007 20-3-2007 20-3-2007 Registration of Sale Deed 2. Total value of sale 5,50,00,000 5,44,15,625 2,95,28,125 3,75,97,656 consideration 3. Date of Receipt of 25-3-2007 15-3-2007 20-3-2007 15-3-07 Advance Payment 4. Amount of Receipt 50,00,000 4946875 2693375 32,67,969 of Advance Payment 6. Date of Receipt of 16-6-2008 15-6-2008 16-6-2008 14-8-2008 Final Payment 7 Amount of Final 5,00,00,000 4,94,68,750 2,68,43,750 3,41,79,688
Payment 8 Clause in Sale Yes Yes Yes Yes Deed that in case of cheque not encashed sale deed will be cancelled 9 Writ Petition filed No but petition Yes No but No but petition before Punjab & filed by petition filed filed by Tajinder Haryana High Tajinder Kumar by Tajinder Kumar in Criminal Court in Criminal Kumar in Misc. No. 36372-M Misc. No. Criminal decided on 31-5- 36372-M Misc. No. 07 by P&H HC decided on 36372-M matter was 31-5-07 by decided on referred to SP Ynr P&H HC matter 31-5-07 by and further in was referred to P&H HC CWP 1908 of 2009 SP Ynr and matter was a SIT was formed further in CWP referred to SP under ADGP Crime 1908 of 2009 a Ynr and Branch to cover all SIT was formed further in farmers with a under ADGP CWP 1908 of direction to the Crime Branch 2009 a SIT Collector by Court to cover all was formed to prevent third farmers with a under ADGP party rights on direction to the Crime land or Collector by Branch to dispossession of Court to cover all farmers to whom prevent third Farmers with full sale party rights on a direction to consideration has land or the farmers not been paid. dispossession with a of farmers to direction to whom full sale the Collector consideration by Court to has not been prevent third paid. party rights on land or dispossession of farmers to whom full sale consideration has not been paid. 10 Date of Mutation of 31-3-2007 31-3-2017 31-3-2017 31-3-2017 Land in favour of Buyer 11 Date of Handing 16-6-2008 15-6-2008 16-6-2008 14-8-2008 over of Possession to buyer Company as evident from P&H HC order in CWP 1908 of 2009 dated 5-2-2009
The Ld. counsel for assessee, therefore, stated that the
issue was covered in favour of the assessee in view of the
aforesaid judgment of the I.T.A.T in the case of Rajiv
Kumar(supra) & Purshottam Kumar(supra).
The Ld. DR per contra, however, pointed out the
following distinguishing facts in the present case with that
in the case of Rajiv Kumar (supra):
1) In the case of Rajiv Kumar (supra), on the day the
sale deed was registered i.e. 20.3.2007, the buyers had
executed an affidavit which was duly attested by the
Executive Magistrate, Jagadhri in which the buyers
had specifically affirmed that the sale deed of the land
had been registered but the spot possession would be
given at the time when the company would be making
the total payment of the post dated cheque of the
assessee. That in the case of assessee there is no
such fact on record but in fact as per the facts brought
out in the assessment order and the CIT(Appeals)’s
order, the possession of the land had also been handed
over to the buyers as per the sale deed executed.
2) That no evidence had been brought on record by
the assessee that the assessee’s land was also covered
in the civil case which was filed before the Hon’ble
High Court wherein direction was given by the Hon’ble
High Court, after constituting an SIT on the issue, to
the buyers to make payment of the balance amount to
the sellers of the land.
At this juncture, the Ld. counsel for assessee admitted
that factual finding with regard to the assessees land being
included and covered in the disputed lands before the High
Court, were not available on record but at the same time,
contended that the same could be established by the
assessee by placing relevant material and evidence on
record subject to verification by the department of the
same. The Ld. counsel for assessee requested, therefore,
that the issue be restored to the Assessing Officer so as to
enable the assessee to establish the identity of the facts of
the present case with that in the case of Rajiv Kumar
(supra). As for the affidavit regarding postponement of
handing over of possession of land by the sellers to the
buyers only on receipt of complete consideration, the Ld.
counsel for assessee stated that no such affidavit was filed
in the case of Parshotam Kumar which was also an identical
case decided on the lines of Rajiv Kumar(supra) following
the said decision.
The Ld. DR did not object to the request of the
Ld.Counsel for the assessee.
Considering the above, in the interest of justice, we
restore the issue back to the Assessing Officer for the
limited purpose of enabling the assessee to establish the
identity of the facts of the present case with that in the
case of Rajiv Kumar(supra) and Purshotam Kumar (supra)
and direct the Assessing Officer to verify the claim of the
assessee in this regard and thereafter pass an order in
accordance with law. This ground of appeal is, therefore,
allowed for statistical purposes.
In view of the restoration of ground of charging of
entire capital gain to tax in the impugned year to the
Assessing Officer, we find that the remaining grounds i.e.
Ground No.2 to 4, with regard to the claim of exemption u/s
54B & 54F of the Act, considering fair market value of
property and relating to grant of benefit of cost of
improvement of land, cannot be adjudicated at this
juncture. These issues are, therefore, also restored to the
Assessing Officer to be adjudicated upon afresh after
deciding the main issue in the present appeal as per our
directions with regard to ground No.1 raised by the
assessee. The grounds of appeal Nos.2 to 4 are also,
therefore, allowed for statistical purposes.
In the result, the appeal of the assessee is partly
allowed for statistical purposes.
Order pronounced in the Open Court. Sd/- Sd/- (DIVA SINGH) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 9th April, 2018 *Rati* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR Assistant Registrar, ITAT, Chandigarh