Rekhaben Jasmatbhai Vidiya, Surat vs Department Of Income Tax

ी एन0एस0 सैनी, लेखा सद य एवं ी कुल भारत, या%यक सद य के सम& BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER आयकर अपील सं./ ITA No. 2225/Ahd/2011 %नधा)रण वष)/Assessment Year: 2008-2009

ITO, Ward-3(4) Smt.Rekhaben Jasmatbhai Vidiya Surat. Vs 6, Vaibhav Bunglows, City Gymkhana Road Piplod, Surat.

PAN : AARPV 5448 E

अपीलाथ,/ (Appellant) -.यथ,/ (Respondent)

Revenue by : Shri Nimesh Yadav, Sr.DR Assessee(s) by : Shri M.K. Patel

सन ु वाई क तार ख/ Dateof Hearing : 26/03/2015 घोषणा क तार ख / Date of Pronouncement: 10/04/2015

आदे श/O R D E R

PER N.S. SAINI, ACCOUNTANT MEMBER: This is an appeal filed by

the Revenue against the order of the Commissioner of Income-Tax-II, Surat dated 1.7.2011.

2. The only ground of appeal of the Revenue reads as under:

[1] On the facts and circumstance of the case and in law, the Ld. CIT(A)-II, Surat has erred in deleting the addition of Rs.73,65,080/- towards unaccounted investment in properties u/s. 69B of the I.T. Act without noting that the assessee failed to adequately explain the vast: differential between the jantri value and the documented price in substantiation of her claim.

[2] On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have upheld the order of the Assessing Officer.

ITA No.2225/Ahd/2011 2 2. Brief facts of the case are that the AO found that the assessee has purchased agricultural land located at Village - Sonari, Surat for an amount of Rs.8,51,000/- by registered document. The Sub-Registrar valued the above property at Rs.40,06,800/- and charged additional stamp duty of Rs.1,54,640/- in addition to the original stamp duty of Rs.1,70,000/-. The AO, therefore, opined that the value of the property was Rs.40,06,800/- which was accepted by the both the parties. He further observed that the assessee also purchased agricultural land in village Unn, Surat, R.S.No.227, Block No.288 and registered in the office of sub-Registrar, Udhna, Surat, and the document was registered at value of Rs.21,00,000/-. The Sub-Registrar, Udhna valued the property at Rs.63,10,080/- and charged stamp duty of Rs.3,10,000/-

which was paid. He observed that the stamp duty charged by the stamp valuation authority was not disputed by the parties. This shows that value of the property was Rs.63,10,080/-. Accordingly, the AO issued show cause notice for making addition of differential amount of Rs.31,55,800/- and Rs.42,10,080/-. The assessee submitted that she has not paid any extra money, over and above, the amount shown in her books of accounts. The assessee relied on the decision of the Ahmedabad Bench of the Tribunal in ITA No.1749/Ahd/2008 and 2104/Ahd/2010. The AO did not accept the explanation of the assessee and held that the assessee has not recorded the correct value of the investment in its regular books of accounts and source of extra investments remained unexplained. Therefore, the AO made addition of Rs.73,65,080/- under section 69B of the Act.

3. On appeal, the CIT(A) deleted the addition by observing that the AO had not brought any evidence on record to show that an amount of Rs.73,65,080/- was paid by the assessee to the seller of the property, over and above, the amount appearing in the sale deed. He relied on the decision of Ahmedabad Bench of the Tribunal in the case of Shri ITA No.2225/Ahd/2011 3

Premjibhai Gopalbhai Patel, ITA No.2104/Ahd/2010 with CO No.171/Ahd/2010 for the Asstt.Year 2006-07, order dated 29.10.2010 wherein it was held that apart from relying upon the rates adopted by stamp valuation authority, there is no other material to support the addition. The rates adopted by the stamp valuation authority cannot be taken by itself as the price, for which the property was purchased.

4. Being aggrieved, the Revenue is in appeal before us.

5. The DR supported the order of the AO, on the other hand, the AR of the assessee submitted that the Hon'ble Gujarat High Court in the case of CIT Vs. Sarjan Realities Ltd., (2013) 40 taxmann.com 398 (Guj) has held that "section 50C of the Act by a deeming fiction substitutes the consideration received on sale of a capital asset by stamp duty valuation. Such deeming fiction, however, is applicable only in case of a seller for the purpose of section 48 of the Act." Hence, it was the submission of the assessee that the section 50C was not applicable to the case of the assessee, as the assessee was the purchaser of the agriculture land, and therefore, order of the CIT(A) should be confirmed.

6. After considering the rival submissions, and perusing the orders of the lower authorities and material available on record, we find that the undisputed facts in the instant case is that the AO made addition of Rs.73,65,080/- under section 69B of the Act towards unaccounted investment in purchase of agricultural land by the assessee, as he found that the stamp valuation was higher than the consideration mentioned in the sale deed. Therefore, he made addition of the differential amount between the value adopted for registration by the Sub-Registrar and value mentioned in the registered sale deed.

7. On appeal, the CIT(A) following the decision of Ahmedabad Bench of the Tribunal in the case of Shri Premjibhai Gopalbhai Patel (supra) ITA No.2225/Ahd/2011 4

wherein it was held that besides that stamp duty valuation, there was no other material on record to show that the assessee had actually paid any amount, over and above, the amount mentioned in the registered sale deed, and therefore, the addition made was not sustainable, and deleted the addition.

8. The DR could not point any defect in the above findings of the CIT(A) nor could bring on record any material to show that the assessee had actually paid any amount more than what was disclosed as apparent consideration in the relevant sale deed. Further, we find that the assessee is a purchaser of the agricultural land in this case. The Hon'ble Gujarat High Court in the case of Sarjan Realities Ld. (supra) has held that section 50C was applicable only in the case of seller for the purpose of section 48 of the Act. Since the assessee was the purchaser of agricultural land, therefore, in view of the above decision, the provisions of section 50C were not applicable in the case of the assessee. Therefore, we confirm the order of the CIT(A) and dismiss the ground of the appeal of the Revenue.

9. In the result, the appeal of the Revenue is dismissed. Order pronounced in the Court on Friday, the 10th April, 2015 at Ahmedabad.

Sd/- Sd/- (KUL BHARAT) ( N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Ahmedabad; Dated 10 /04/2015