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TMI Blog2020 (12) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the builder in the subsequent years. The Tribunal considering the aforesaid facts in the said case has restored the matter to the file of the Assessing Officer for the limited purpose of enabling the assessee to establish the similarity of the facts of the case with that of the case of Shri Rajiv Kumar [ 2016 (7) TMI 184 - ITAT CHANDIGARH] and directed AO to verify the claim of the assessee in this regard and thereafter to pass and order in accordance with law. The issue relating to the claim of deduction u/s. 54B and 54F of the Act was also restored to the file of the Assessing Officer to be adjudicated upon afresh. Whether land belonged to the ''HUF'' and not to the assessee? - We are not convinced with the said contention of the assessee. The land was in the name assessee in individual capacity and the same was sold to the builder by the assessee in his individual capacity as there was no mentioned that the land was being sold by the assessee as Karta of 'HUF' - proceeds of the sale were also deposited/retained by the assessee in his individual capacity and further the land so purchased out of the proceeds of the sale was also in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warg Sukh Buildhome Pvt. Ltd. for a total consideration of ₹ 3,75,71,875/- on 4.4.2007 and land measuring 13 Kanal 10 Marla to M/s. Amit Jain Builders Pvt. Ltd. for a total consideration of ₹ 92,81,250/- on 13.4.2007. The Assessing Officer, however, held that since the land sold was situated within the M.C. limit of Jagadhari, the assessee was liable for Capital Gain Tax. He, therefore, reopened the assessment of the assessee u/s. 147 of the Income Tax Act, 1961 (in short 'the Act') and show caused the assessee as to why the Capital Gains earned on the sales of the property be not subjected to Capital Gains tax. In reply, the assessee contended that the land sold was ancestral property of the assessee and, therefore, the said property belonged to 'HUF' of the assessee and that the notice u/s. 148 and assessment u/s. 147 of the Act should have been issued/framed in the name of the 'HUF'. That the notice as well as assessment proceedings in the name of the assessee were bad in law. However, the said contention was rejected by the Assessing Officer. The Assessing Officer, thereafter, assessed the capital gains at ₹ 2,30,33,870/-. 5. Being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Punjab Haryana High Court and the Hon'ble High Court vide order dated 5.2.2009 (supra) had ordered an investigation into the matter and after considering the report of the Inspector had directed the builder to make the payment of the balance arrears to the sellers/farmers which was paid by the builder in the subsequent years. The Tribunal considering the aforesaid facts in the said case has restored the matter to the file of the Assessing Officer for the limited purpose of enabling the assessee to establish the similarity of the facts of the case with that of the case of Shri Rajiv Kumar (supra) and directed the Assessing Officer to verify the claim of the assessee in this regard and thereafter to pass and order in accordance with law. The issue relating to the claim of deduction u/s. 54B and 54F of the Act was also restored to the file of the Assessing Officer to be adjudicated upon afresh after deciding the main issue of the year of taxability of the capital gains. 8. The relevant part of the order of the Tribunal in the case of Sheo Ram vs ITO' (supra) is reproduced as under;- 10. Further, Challenging the action of the CIT(Appeals) in confirming the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 Kumar ITA No. 17/CHD/2016 Facts of Tajinder Kumar ITA No.19/CHD/ 2016 Facts of Purshotam Kumar ITA No.968 969/CHD/20 14 Facts of Sheo Ram 1. Date of Registration of Sale Deed 20-3-2007 20-3-2007 20-3-2007 20-3-2007 2. Total value of sale consideration 5,50,00,000 5,44,15,625 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of Mutation of Land in favour of 31-3-2007 31-3-2017 31-3-2017 31-3-2017 Buyer 11 Date of Handing over of Possession to buyer Company as evident from P H HC order in CWP 1908 of 2009 dated 5-2-2009 16-6-2008 15-6-2008 16-6-2008 14-8-2008 11. 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). 12. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. In the result, the appeal of the assessee is partly allowed for statistical purposes. 9. The Ld. DR has also submitted that the matter be restored to the file of the Assessing Officer for verification of the facts and that if facts of this case are identical to that of the case of Shri Rajiv Kumar (supra), the matter be decided as per the findings arrived at in the case of Shri Rajiv Kumar (supra). 10. Considering the rival submissions of both the parties, the issue of the relevant year of the taxability and the consequent deduction c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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