Capital gains to be paid on property sold below circle rate

Tax queries 608 views 2 replies

I came to be the owner of a property in 2006 for a purchase value of Rs.200,000.This is a small property,its condition is very rundown with a very old wooden construction and its ground floor plus the first floor each have independent tenants and because they have occupied the property for at least 35 years,it is not possible to evict them.
All this has resulted in the property having very low resale value.I have sold the property for about 3,60,000 to one of the tenants.

The problem is that the circle rate(Jantri)valuation of the property comes to Rs14,00,000.
This might result in a very large tax demand in the future.
Are there any remedies to avoid such demand?

Thanks in advance,

Khalid.

 

Replies (2)

His Lordship, Mr. Justice Y.K. Sabharwal in cases Mahesh Chandra Agarwal V. Union of India and other cases (1998) 231 ITR 318, 445-447 (Delhi) has summarized the conclusions on various legal issues involved in the proceedings for pre-emptive purchase. Some of them are:

  • Under Valuation of apparent consideration is at least 15% with a view to evade tax or conceal income.
  • Rebuttable presumption of tax evasion, where fair market value exceeds the apparent consideration by 15%.
  • Passing the orders of pre­emptive purchase carries with it the stigma of tax evasion, which affects the reputation of the concerned parties and hence such orders shall not be made lightly and in routine.
  • Burden of establishing that the fair market value is more than 15% of apparent consideration lies on Appropriate Authority and never shifts. Only the responsibility shifts from one to another.
  • Parties are entitled to get the entire material relied upon by Appropriate Authority including valuation reports on record.
  • If the material placed by the parties before Appropriate Authority shows there is no occasion for under valuation of property with no view to evade tax or conceal income, passing the orders of pre-emptive purchase is not permitted.
  • Since no appeal is provided for in the Act, the authority is required to be more cautious to subjective satisfaction of the objective facts.
  • Except in glaring and clear cases of gross under valuation and large-scale tax evasion pre-emptive purchase orders with bona fide tenancy of long standing cannot be made.
  • If the explanation offered to show cause notice that there is no evasion is honest the plea is to be accepted.
  • While determining the fair market value of the tenanted property, no comparison can be made with the sale instance of vacant property.
  • In determining the fair market value of the property, regard must be had to the field realities such as long delays in getting possession of the property from bona fide tenants protected by rent laws and in cases where suit for possession is filed under Transfer of Property Act.
  • For determining under valuation and evasion of tax, events as on the date of agreement of sale are to be considered.
  • If seller needs urgent money and agrees to sell the property at value less than market value, pre-emptive purchase order is not permissible.
  • The plea of distress sale and at the same time the plea that the property was agreed to be sold at market value are not destructive, and can be raised as alternative pleas.

Cases in favour of assessees in case of distress sale:

1. B.R. Herman & Mohatta (I) P. Ltd vs, DIT ITA No.6427/M/2010  at https://indiankanoon.org/doc/119384518/

2. Sri Rajumar Kumbhat (Deceased), ... vs Assessee  at https://indiankanoon.org/doc/92595995/

Favourable conditions in such cases:

1. Eviction suit agaist tenant in an court   

2. Valuation report from government approved valuer as on or before the date of sale/transfer...


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