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TMI Blog2017 (10) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the case at that stage and the reference was returned. After hearing both the sides and in the interest of justice and equity, find it appropriate to restore the matter to the file of the Assessing Officer to be decided de novo after obtaining valuation report from the DVO. - ITA No. 306/JP/2017 (A. Y 2008-09) - - - Dated:- 4-10-2017 - SHRI BHAGCHAND, ACCOUNTANT MEMBER Assessee by : Shri Vijay Gupta. Revenue by : Smt. Poonam Roy (DCIT) ORDER PER: BHAGCHAND, A.M. This is an appeal filed by the assessee emanates from the order of the ld. CIT(A)-2, Jaipur dated 17/03/2017 for the A.Y. 2008-09, wherein the assessee has raised following grounds of appeal:- 1. On the facts and circumstances of the case and in law, the ld. CIT(A) was not justified in holding the addition of ₹ 41,80,805/- under the head capital gain made by the A.O. The action of ld. CIT(A) is illegal and deserved to be set aside. The ld. CIT(A) has erred both in facts and in law. 2. On the facts and circumstances of the case, the ld. CIT(A) grossly erred in HOLDING AN ADDITION OF ₹ 1,00,000/- under the head income from other sources. The action of the ld. CIT(A) is ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gain Income the provisions of Section 50-C is not applicable in the case of the assessee. In this regard it has been stated that the right in property was sold without handing over the possession of the property (as it was already acquired by RIICO) and the title of the property was already in dispute with RIICO and was under judicial review by the competent authorities/courts. The contention of the assessee is not acceptable, as the transaction took placed well before the decision of the Hon ble Supreme Court. Firstly the property was purchased by the assessee and then sold out further and received sales consideration. The property was sold out by the assessee and sale deed was also got executed with the stamp authorities. When there is clear cut transaction of sale of immovable property it cannot be said and acceptable that it was a transfer of sale of rights only. In view of the facts of the case it is a transfer within the meaning and purview of Section 2(47) of the IT Act, 1961 and the assessee is liable to pay Capital Gain Tax and section 50C of the IT Act is applicable in the case. Section 50C is applicable on transfer of capital assets being land or building or both. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tamp authorities during the assessment proceedings. However in last juncture of the proceedings vide his letter dated 02.02.2016 submitted on 03.02.2016, the assessee has objected the value of the property adopted by the stamp authorities. The assessee should have objected the same well before in time which was not done so. However the matter was referred to the Departmental Valuation Officer and reference was sent to DVO vide this office s letter No 2243 dated 05.02.2016 for determining the fair market value of the property in view of the objection raised by the assessee. The DVO, Jaipur vide his letter No 183 dated 10.02.2016 returned back the proposal stating therein that I would like to inform you that the statuary references normally require 120 days. As a number of case are to be disposed off by this office before 31.03.2016 being time barring case, it would not be possible to take up this case at this stage. Therefore reference in original is hereby returned. The Assessing Officer did not accept the contention of the assessee and made an addition of ₹ 41,80,805/- as long term capital gain. 3. The ld. CIT(A) has dismissed the appeal of the assessee by holding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had been acquired by the RliCO/State Government and if not freed/released by the Government purchasers will only be entitled to compensation from the RllCO/State Government. On the above basis, it is claimed that the transaction between society, Harbhajan Singh, Ramji Lai to Bhupendra Kumar to the ultimate purchaser are only transfer of rights. Reliance was ''''W placed on the case of Tara Chand Jain Vs. IT dated 09.10.2015 of ITAT, Jaipur and Atul G. Puranik Vs. ITO of ITAT, Mumbai. Further, request has been made for reference to valuation officer as certain factors needed to be considered for its valuation. Moreover, it was also mentioned that the assessee was not trying to circulate black money as buyer of rights was Addl. DGP who is not expected to indulge in such a transaction. On the basis of all the above, it was submitted that invocation of section 50C was not in order. During the proceedings, the Authorized Representative was required to produce the notification by which the Government of Rajasthan/RIICO had acquired the property as also the evidence and date on which physical possession was acquired by the government but the Authorized Representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Society is contesting only for a limited piece of land measuring 17 Bighas 9 Biswas which had been acquired and given to DGDC by the RIICO. The case of the society is that in view of the observations made by the Supreme Court in its order, it has pleaded its case in this petition on the basis that the other land which had been acquired had been released or it stood de facto released and the government was itself a party to it in releasing the acquired land and large number of lands of this nature de facto stood released from acquisition inasmuch as houses have been constructed thereon; the Government itself has acquiesced with such construction and has also taken steps for regularisation of such construction and the decision which was taken by the JDA in the meeting headed by the Chief Minister was implemented qua all others except the land of petitioner Society, merely because the petitioner society s land had been given to DGDC/RIICO. This small piece of land which is claimed by the society in the facts and circumstances of the case, can very well be restored to the Society and to that extent, land allotted to DGDC can be curtailed without having any adverse impact on the prospe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, the ld DR has submitted that the assessee has sold the plot of land, which was allotted to him by a Cooperative society and the sale deed clearly mentions in this regard, therefore, there is no merit in the claim of the assessee. 6. After hearing both the sides, I hold that this was a transfer of a plot, which was allotted to the assessee by a cooperative society, therefore, there is no substance in the pleadings of the assessee. The facts and circumstances of the case are clearly shows that the provisions of Section 50C of the Act are applicable and it was a transfer of a capital asset being plot of land. 7. The second argument of the ld AR of the assessee was that, although, the assessee has submitted that the value adopted by the stamp valuation authority was on a higher side and the assessee has requested to the Assessing Officer to refer the matter to the Valuation Officer. The Assessing Officer dismissed the claim of the assessee for the reason that the assessment was getting time barred and there is no time left for the DVO to estimate the fair market value. For ready reference, the provisions of Section 50C(2) of the Act read as under: 50C (2) Withou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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