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TMI Blog2016 (3) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... talks about the land bearing Khasra No.1584 क for the land measuring 1.986 Hectare. It is also for the assessee to establish as to whether he has refunded the entire amount to M/s Sanskar Foundation to whom he sold the land. If not, is there any claim raised by them for refund of the sale consideration on the ground that the assessee did not own the land, pending before any of the judicial forum. If no claim in this regard is raised by M/s Sanskar Foundation and the assessee has not refunded the sale consideration to M/s Sanskar Foundation, having realized that he is not the owner of the land, the assessee would be responsible to pay tax on the income realized on this alleged transfer. According to us, if provisions of section 50C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of the ld. CIT(A) pertaining to assessment year 2006-07. 2. Since these appeals were heard together, these are being disposed of through this consolidated order. For the sake of reference, we extract the grounds raised in these appeals as under:- GROUNDS RAISED BY THE ASSESSEE: 1. The Learned C.I.T., (Appeals), Lucknow erred while sustaining the charging of capital gain on the appellant. 1. (a)The Learned C.I.T., (Appeals), Lucknow erred while not considering that the appellant is not the legal owner of the land. 1. (b) The Learned C.I.T., (Appeals), Lucknow erred while not considering that the person from whom the appellant had purchased the property was not the legal owner of land, as such charging of capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of section 50C of the Income-tax Act, 1961 (hereinafter called in short the Act ) was invoked and the matter was referred to the DVO, who valued the property at ₹ 82,41,800/- and the Assessing Officer accordingly computed the long term capital gain at ₹ 72,58,724/- in the hands of the assessee. 5. The assessee has raised a plea before the Assessing Officer that the ownership of this land was disputed by the Court and the assessee was not held to be owner of the land. Therefore, he has no right to sell the land and the capital gain cannot be computed in the hands of the assessee. But this contention of the assessee was not rather considered by the Assessing Officer and he computed the long term capital gain in his han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. counsel for the assessee has placed reliance upon the order of the Tribunal in the case of Geeta Devi vs. Income Tax Officer in I.T.A. No. 496/LUC/2006 and also the judgment of Hon'ble High Court in the case of M/s Agarwal Brothers and Others vs. M/s Viniyog Vyapar and Others in Writ Petition No.29 (LA) of 1998. 8. The ld. D.R., on the other hand, has submitted that if the contention of the assessee that he was not the owner of the land and therefore, no capital gain accrued to it is accepted, then whatever money has been earned by the assessee in such transaction would be the income from other sources, if not capital gain. As per sale document, the assessee has sold this land for ₹ 45,17,500/- and according to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement does not reflect any relation with the impugned land sold by the assessee. Hence, no inference can be drawn from this agreement in order to adjudicate the issue whether the impugned land was purchased by the assessee and his brother from Shri. Raj Kumar. But from perusal of the order of the Tehsildar appearing at pages 3 to 6 of the compilation of the assessee, we find that this order was passed with respect to land bearing Khasra No.1584 क for land measuring 1.986 Hectare and the other Khasra No.1607 ग for land measuring 0.5310 Hectare. Therefore, with respect to land bearing Khasra No.1584 क measuring land 1.986 Hectare, the assessee cannot be called to be the owner of the land, as the land was mutated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee should be owner of the property. Though it has not been specifically held in these cases, but we find force in the contention of the assessee in this regard. But in the instant case, from the documents available on record, it is not clear whether the impugned land bearing Khasra No.1584 क measuring 1.986 Hectare and Khasra No.1584 ख measuring 0.101 Hectare land were purchased by the assessee and his wife, Smt. Paramjeet Kaur. 11. The onus is upon the assessee to establish through documents that the impugned land was purchased by the assessee and his wife. The, onus is also upon the assessee to establish that the other land bearing Khasra No.1584 ख for land measuring 0.101 hectare is still owned by them or it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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