Madhu Bhandari v. Commissioner Of Income Tax-Iii, Bangalore

N.V Vasudevan, J.M:— This appeal by the assessee is against the order dated 31.01.2011 of the Commissioner of Income-tax, Bangalore-III, Bangalore (“the CIT”) passed u/s. 263 of the Income-tax Act, 1961 (“the Act”) in relation to the assessment year 2006-2007.

2. There is a delay of 205 days in filing the appeal by the assessee. The reasons for delay in filing the appeal have been given in the application for condonation of delay in filing the appeal. The appeal is against the order passed u/s. 263 of the Act. It appears that the assessee was under the impression that the CIT has given direction to the Assessing Officer (“the AO”) to make the assessment afresh and therefore there was no necessity to file the appeal against the order u/s. 263. Later on, the assessee was advised that the Commissioner has revised the order of the AO and therefore the order u/s. 263 of the Act had to be challenged. Thereafter the assessee filed appeal before the Tribunal. Hence the delay in filing the appeal before the Tribunal.

3. Considering the reasons given in the application for condonation for delay, we are of the view that the delay has to be condoned. The assessee had filed an application for grant of stay against recovery of outstanding demand, pending disposal of the appeal by the assessee and this Tribunal had granted an order of stay. Even at that point of time, there was no objection by the revenue. In the circumstances, the delay is deemed to have already been condoned when the stay application was taken up for hearing and ordered. Even on this basis, the delay in filing the appeal has to be condoned. We accordingly condone the delay in filing the appeal by the assessee before the Tribunal.

4. As far as merits of the appeal are concerned, the material facts are as follows. The assessee is an individual. For the A.Y 2007-2008, she filed a return of income declaring total income of Rs. 2,93,886 after claiming exemption of long term capital gains u/s. 54F of the Act of Rs. 38,52,271. The assessee sold the property at HSR Layout for a consideration of Rs. 40 lakhs. The capital gain on such sale of property was Rs. 38,52,271. The assessee claimed that the capital gain had been invested in purchase of another residential property within the time allowed u/s. 54F of the Act and therefore exemption u/s. 54F should be allowed. The assessee could not substantiate such a claim before the AO and therefore the claim for exemption u/s. 54F of the Act was not allowed by the AO.

5. The ld. CIT in exercise of his powers u/s. 263 of the Act was of the view that the aforesaid order of the AO was erroneous and prejudicial to the interests of revenue. The CIT on perusal of the records noticed that though the consideration for transfer as recorded in the instrument of transfer was Rs. 40 lakhs, the registering authorities for the purpose of stamp duty had adopted the value of the property at Rs. 60 lakhs. According to the ld. CIT, in view of the provisions of section 50C of the Act, the full value of consideration received on transfer ought to have been adopted at Rs. 60 lakhs and capital gain computed accordingly. Since the AO has accepted the sale consideration of Rs. 40 lakhs mentioned in the instrument of transfer as full value of consideration received on transfer, the ld. CIT was of the view that there was under-assessment of capital gain chargeable to tax. Accordingly, a show cause notice dated 31.08.2010 was issued to the assessee by the ld. CIT.

6. In reply, by letter dated 05.10.2010 the assessee submitted that as per the agreement entered into with the purchaser of the property, the sale consideration was Rs. 40 lakhs and that the same was received by the assessee as follows:—

(a) 04.04.2005 Rs. 10,000 As advance)

(b) 30.01.2005 Rs. 39,90,000 By cheque No. 030106 dt. 31.01.2006

The assessee further pointed out that the guidelines value were revised by the State Govt. Notification dated 18.07.2005 w.e.f 14.10.2005 The assessee therefore submitted that the value of Rs. 40 lakhs has to be accepted as proper and the proposed revision by the ld. CIT should not be made.

7. The ld. CIT, however, did not agree with the submissions of the assessee by observing in para 4 of the impugned order as under:—

“4. I have considered the facts of the case and assessee's submission. As per the provisions of Sub-Section (1) of Section 50C of the Income tax Act, 1961 where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government i.e, Stamp Valuation Authority for the purpose of payment of Stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of computation of income from capital gains, be deemed to be the full value of the consideration received or accruing as a result of such transfer. In respect of the transfer under consideration the value adopted/assessed by the Stamp Valuation Authority for the purpose of payment of Stamp Duty has been taken at Rs. 60 lakhs. Therefore, as per the provision of Sub-Section (1) of Section 50C of the Income Tax Act, 1961 full value of the consideration received or accrued as a result of the transfer of the immovable property situated at Sarjapur Road, Bangalore shall be taken at Rs. 60 lakhs. The assessee's argument that the Government Notification dated 18/7/2005 has not resulted in ‘increase in sale consideration has no relevance in so far as application of provisions of Section 50C for adopting the consideration at Rs. 60 lakhs is concerned. I, therefore, hold that for the purpose of computation of income from capital gains on sale of immovable property situated at Sarjapur Road, Bangalore u/s 48 of the Income Tax Act, 1961, the full value of consideration received or accrued as a result of the transfer shall be taken at Rs. 60 lakhs in view of the provisions of section 50C of the Income Tax Act, 1961. The assessee has not raised any objections regarding proposed charging of interest under section 234A of the Income Tax Act, 1961 as per the notice under section 263. I, therefore hold that the assessee has no objection of proposed charging of interest under section 234A of the Income Tax Act, 1961. Accordingly, I hold that interest under section 234A of the Income Tax Act, 1961 shall be charged as per law.”

8. The ld. CIT accordingly revised the order of the AO and directed the AO to give effect to his directions as mentioned in the impugned order u/s. 263 of the Act and compute capital gain accordingly.

9. Aggrieved by the order of the ld. CIT, the assessee has preferred the present appeal before the Tribunal.

10. The ld. counsel for the assessee submitted that the property was agreed to be sold on 04.04.2005 and on that date, the guidelines value for the purpose of stamp duty and registration was Rs. 700 per sq.ft On 18.07.2005, the Government revised the guidelines value effective from 14.10.2005 by which the guidelines value was enhanced to Q1,500 per sq.ft The sale deed was registered on 31.01.2006 The ld. counsel for the assessee brought to our notice the decision of the ITAT Vishakapatnam Bench in the case of Moole Rami Reddy v. ITO 2011-TIOL-135-ITAT- VIZAG, wherein the ITAT has taken a view that where on the date of agreement, the value adopted by the registering authorities for stamp duty purposes and the value shown in the agreement for sale are identical and where there is an increase in the guidelines value between the date of agreement and registration of sale deed, then the provisions of section 50C cannot be invoked and the guidelines value prevailing on the date of registration of the property cannot be substituted as the full value of consideration received on transfer of capital asset for the purposes of computing capital gain. It was further argued that the AO has taken a possible view on the computation of capital gain and therefore the ld. CIT in exercise of powers u/s. 263 of the Act cannot seek to substitute his view with that of the AO. It was also argued that the provisions of section 50C of the Act did not lay down that the value adopted for the purpose of payment of stamp duty is conclusive in that under section 50C(2) of the Act, the assessee has right to dispute the same. It was argued that when the power u/s. 263 of the Act is exercised, the assessee will lose the right to dispute the value adopted for the purpose of payment of stamp duty, because the power to make a reference to the DVO lies only with the AO in terms of section 50C(2) of the Act. Finally it was submitted that the date of registration will always relate back to the date of agreement and therefore the value as on the date of agreement alone should be adopted and in this regard reference was made to the decision of the Hon'ble Supreme Court in Gurbax Singh v. Kartar Singh 254 ITR 112 (SC).

11. The ld. DR in reply submitted that the plea of the assessee that the property was agreed to be sold as on 04.04.2005 is not correct. In this regard, the ld. DR submitted that even in the sale deed, there is no reference to the date of the agreement. It was also submitted that no such agreement was ever produced either before the AO or in the course of proceedings u/s. 263 of the Act. It was the submission of the ld. DR that the contention of the assessee that there was an agreement for sale on 04.04.2005 is purely an after-thought and has been propounded by the assessee with a view to take advantage of the decision of the ITAT Vishakapatnam Bench in the case of Moole Rami Reddy (supra). In all respects, the ld. DR relied on the order of the ld. CIT.

12. In reply, the ld. counsel for the assessee submitted that the AO having passed an order u/s. 143(3) of the Act is deemed to have applied his mind even on the aspect of provisions of section 50C of the Act. In this regard, reliance was placed on the decision of the Hon'ble Delhi High Court in the case of Cit v. M/S. Vikas Polymers 341 ITR 537 (Del) wherein it was held that it is not necessary that each and every aspect should be referred to in the order of assessment and that if there were due enquiries made, the order of the AO cannot be termed as erroneous and prejudicial to the interests of revenue. With regard to the argument of the ld. DR that there was no agreement dated 04.04.2005 ever produced before the revenue authorities, the ld. Counsel for the assessee submitted that a specific plea was taken in reply to the show cause notice u/s. 263 of the Act regarding existence of an agreement. The ld. CIT did not call for the agreement and therefore no fault can be found with the assessee.

13. We have considered the rival submissions. On the aspect regarding the exercise of jurisdiction u/s. 263 of the Act, we find that the AO has not examined the applicability of section 50C of the Act. Nothing has been brought on record to show that any such enquiry had been made by the AO in the course of assessment proceedings. In view of the specific provisions of section 50C of the Act, the AO ought to have examined this aspect and failure to do so renders the order of assessment erroneous and prejudicial to the interests of revenue. We therefore hold that ld. CIT was justified in initiating proceedings u/s. 263 of the Act.

14. With regard to the merits of the order of the ld. CIT, the plea of the assessee is that the agreement for sale of property was entered into on 04.04.2005 and as on that date the value adopted for the purpose of stamp duty by registering authorities was only Rs. 40 lakhs and when the property was registered on 31.01.2006, the guidelines value was increased by the State Govt. w.e.f 14.10.2005 and therefore the provisions of section 50C could not be applied in the case of the assessee. The assessee has further relied on the decision of ITAT Vishakapatnam Bench. In this regard we find that even in reply to the show cause notice, the assessee has not produced any agreement for sale dated 04.04.2005 Even in the sale deed, there is no mention to the agreement for sale having been made on 04.04.2005 In those circumstances, the plea of the assessee that there was an agreement dated 04.04.2005 and that the value of the property as on that date was only Rs. 40 lakhs for the purposes of stamp duty, cannot be accepted. In the circumstances, we are of the view that the decision of the ITAT Vishakapatnam Bench supra cannot be applied to the facts of the present case.

15. We, however, find merit in the submission of the ld. counsel for the assessee that the guidelines value adopted for the purposes of stamp duty and registration is not conclusive and that the assessee will have a right to dispute the same. In this regard, we find that the provisions of section 50C(2) of the Act provide for a reference to the DVO, if the assessee makes a claim that the guidelines value for the purpose of stamp duty exceeds the fair market value of the property as on the date of transfer. Since the AO has not made any enquiries with regard to the application of section 50C of the Act, the assessee had no occasion to exercise his right u/s. 50C of the Act. In the circumstances, we are of the view that it would be just and appropriate to modify the order passed by the ld. CIT u/s. 263 of the Act. The direction of the ld. CIT to adopt the full value of consideration received on transfer at Q60 lakhs and thereafter compute the capital gain is modified to the extent that the AO is directed to make a reference to the DVO in accordance with the provisions of section 50C of the Act and thereafter compute the capital gain on transfer of capital asset. The AO will afford opportunity of being heard to the assessee. Thus, the order u/s. 263 of the Act is modified as stated above. The appeal of the assessee is accordingly partly allowed.

16. In the result, the appeal by the assessee is partly allowed.