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TMI Blog2023 (2) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made and evidence produced by the appellant with regard to the impugned additions. The CIT(A) has grievously erred in law and on facts in confirming the impugned addition for the reasons not raised by AO so that it was exceeding his jurisdiction and illegal. 2.1 The Ld. CIT(A) has grievously erred in law and on facts in confirming addition of Rs.65,39,434/- as long term capital gains made by AO. The findings given by CIT(A) for upholding the impugned addition of Rs.65,39,434/-were presumption, surmises and contrary to law as well as evidence on record. 2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld addition of Rs.65,39,434/- as long term capital gains made by AO. 2.3 The Ld. CIT(A) has grievously erred in law and on facts in rejecting the contention of the appellant that he had l/12th and not l/9th share in the land sold. The computation furnished to CIT(A) was not he admission on his part with regards his share or SDV of the land sold but the alternative contention, without prejudice to the main contention. 3.1 The appellant does not admit the conclusions/ findings given by both the lower authorities in so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stamp duty value of the property as on the date of sale of Rs.10,05,21,500/- as per section 50C of the Act; the assessee's share in the property was taken at 1/9th; ii) Indexed cost of acquisition of the property pertaining to assesses share was taken by the AO at Rs.7,44,733/- as against Rs.13,47,416/- claimed by the assessee. The AO had restricted indexed cost of acquisition to the extent of the property noted to be sold of 8,741 sq.meters as per the registered sale deed. The assessee, on the other hand, had claimed indexed cost of acquisition of property of 14,569 sq.meters claiming that, to the extent of 5528 sq.meters, the property had been acquired by the Government for weaker sections, and therefore, only the balance of 8,741 sq.meters was sold to the third party during the year. iii) The claim of exemption under section 54F of Rs.21 lakhs was denied to the assessee. The comparison of the capital gain returned by the assessee, and that computed by the AO as tabulated at page no.5 of the assessment order is as under: Particulars As per AO As per the assessee Sales consideration received by the assessee Rs.1,11,69,055/- Rs.55,55,555/- Less: Indexed cost o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand proceedings by the ld.CIT(A) vide letter dated 17.2.2016 and 2.2.2016, which was placed before at PB Nos.79 and 62 respectively. The ld.counsel for the assessee pointed out that the AO had been pointed out the share of nine co-owners in the letter dated 2.12.2016 as under: Sr. No. Name of the seller PAN Share in Property 1. JadibenBhulabhaiVenidas CPYPP6625P 1/3rd 2. NirubenParshottamdas ACSPP9068P 1/12th 3. Pratimaben Alias Pratibhaben 'Parshottamdas AGAPP0480B 1/12th 4. NitinbhaiParshottamdas ABJPP8038P 1/12th 5. KiranbhaiParshottamdas AEIPP0638K 1/12th 6. PopatbhaiDhanjibhai AHEPP9746K 1/12th 7. JagdishbhaiDhanjibhai APCPP3224Q 1/12th 8. UshabenRajendrabhai BJEPP1175M 1/12th 9. AlkabenBhaskarbhai AVAPP9963A 1/12th 7. He contended that 1/12th share arose to the assessee on account of the fact that his mother was owner of 1/3rd share in the property, which had devolved onto her from her father and on her demise, her share had devolved to the assessee alongwith three coparceners, which resulted in1/12th share in the hands of each person. He contended that even the family-tree had been supplied to the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant during the course of appeal proceedings have been accepted, but there is no evidence or claim of the appellant regarding the share in the property. The appellant has not bothered to file the evidences as additional evidences, even though the appellant's additional evidences on other issues were duly accepted and sent to the A.O for his comments. The proceedings before the CIT(A) are not based on trial and error wherein the appellant keeps filing the evidences which were not produced before the A.O at all and for which the application under Rule 46A has not been made to the CIT(A). Therefore, the evidences filed by the appellant are not proper as the same has not been filed as per Rule, 46A of the I.T.Rules and accordingly rejected. No cognizance of these papers/evidences is being taken while deciding this appeal. It may also be mentioned here that no such ground of appeal has also been taken by the appellant either at the time of filing the appeal or during the course of appeal proceedings. It is a settled position of law that whatever are the grounds of appeal filed by the appellant can only be adjudicated upon by the undersigned, therefore, the arguments of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the date of entering into agreement to sell should have been adopted as per the provision of section 50C of the Act. We do not find any merit in the same. The ld.counsel for the assessee in support of his contention has drawn our attention to the copy of the agreement to sell/memorandum of understanding entered into by the assessee with Vishwas Developers dated 10.9.2015,a copy of which was placed before us in PB Page no.95 to 101 dated 5.20210 (English Translation). He also drew our attention to the contentions made before the ld.CIT(A) to prove that actual agreement to sell had been entered into with the said party after the MOU was entered by demonstrating the fact that after entering into agreement to sell, the purchaser had paid premium to the Government for conversion of land from agriculture to non-agriculture and all permission for conversion of the said land was also taken thereafter. He contended that all these events substantiated the fact of acceptance of agreement to sell. Our attention was drawn to the submission made to the ld.CIT(A) in this regard produced at page no.5 of his order as under: Now in respect of the agreement for sale I would like to submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the ld.CIT(A) at page no.8 to 10 as under, pointing out to us various infirmity in the agreement to sell casting doubt on the genuineness of the same. "The other argument of the appellant is regarding valuation as per Sec.50C of the I.T.Act. The appellant has filed a copy of the agreement for sale. However, on going through this agreement to sale, the following facts were noticed :- (1)This agreement has been shown to have entered into on 5/2/2010, however, on going through the whole agreement it is noticed that it is entered on a stamp paper dated 6/10/2009. This agreement is simply signed by all the parties without any date. However, in the last, the date has been mentioned as 5/2/2010 but there is a clear overwriting on the date with the pen which clearly shows that the date shown in the Agreement is not authentic. The appellant never produced the original Agreement to sale so that this fact could have been verified. Therefore, prima facie it appears that the date has been overwritten by using a pen to suit the appellant's explanation. (2) The so-called memorandum of agreement for sale has not been registered with any of the authorities. It has been made on a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced before the A.O as a proof. Even on verification of the final sale deed, it can be seen that nowhere in the sale deed any mention about the alleged sale agreement made by the owners. Therefore, the agreement to sale filed by the appellant cannot be relied upon in view of the above mentioned factors. 12. We have heard rival contentions and we do not find any merit in the contentions of the ld.counsel for the assessee. The infirmity pointed out by the ld.CIT(A) vis-à-vis the agreement to sell have remained uncontroverted before us. The agreement to sell has been found to have stamped on 6.10.2009 while the agreement was entered into much later on 5.2.2010. There is also over-writing on the date mentioned in the agreement to sell. Most importantly, the original agreement to sell was never produced before the Revenue authorities. The fact that as per prevailing law of the State of Gujarat, a partnership firm could not have purchased an agriculture land, this agreement to sell between a partnership firm(M/s Vishwas Builders)as the buyer and the assessee as seller was in any case invalid. Further, the agreement to sell finds no mention in the final sale deed entered into betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased by the appellant either on or after 28/5/2011 or on or before 28/5/2014. In this case it is an undisputed fact that the appellant has entered, into an agreement for purchase of the property on 31/7/2013. It has also been provided in this agreement that the flat would be completed within 14 months from the date of execution of the banakhat. As has clearly been held by the A.O in the assessment order, this fact has not been disputed by the appellant either before the A.O or before the undersigned. Therefore, the 14 months are taken in to account from the date of banakhat, it is clear that the flat would be available to the appellant only on 30/9/2014 which is beyond two years from the date of sale of the original assets. It has clearly been provided by the appellant during the course of appeal proceedings that the sale deed of the flat was executed only on 10/9/2015 which is even one year after the time stipulated as per the banakhat entered into by the appellant. As per the provisions of the Act the deduction is allowable if the appellant has brought a property within two years of the sale of the original asset. Since this is a beneficial provision the Hon'ble High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the issue. It is not denied that the assessee had made complete investment of Rs. 21 lacs for purchase of property well within the stipulated time. It is only that the construction was completed later on and sale deed entered into on completion of construction. Courts have held the conditions for claiming exemption u/s 54F of the Act to be fulfilled in such circumstances. The Hon'ble Karnataka High Court in the case of CIT Vs Smt. Shantha Kumari (2015) 233 taxmann.com 347(Kar) has held that if after making complete payment merely because a registered sale deed has not been executed be it because construction was not completed in all respects, that would not disentitle the assessee from claiming the benefit u/s 54F of the Act. In view of the above, we hold that the assessee has substantially complied with the provisions of section 54F of the Act by making complete investment in purchase of flat. The assessee we hold is eligible to claim deduction u/s 54F of the Act of the amount invested of Rs.21 lacs. 16. In view of the above discussion, the contention vis-a-vis share of the assessee' in the property sold being 1/12th is accepted, as also his claim to deduction u/s 54F of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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