Sri Raj Kumar Baid, Kolkata V. ACIT/DCIT, Circle-36, Kolkata, Kolkata

ITA 1050/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3319 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 15-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 143(3); 50C

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI, M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 1050 / KOL / 20 17 ASSESSMENT YEAR :2012-13 SRI RAJ KUMAR BAID (POP. M/S RAMESHMOTORS), 9, MANGOE LANE, 1 ST FLOOR, R. NO29, KOLKATA-001 [ PAN NO.AEOPB 6625 A ] V/S . DCIT, CIRCLE-36, 110, SHANTI PALLY, EM BYE PASS, NEAR RUBY HOSPITAL, AAYAKAR BHAWAN, POORVA, KOLKATA-107 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SUNIL SURANA, FCA /BY RESPONDENT SHRI S. DASGUPTA, ADDL. CIT-DR /DATE OF HEARING 25-07-2018 /DATE OF PRONOUNCEMENT 24-08-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 CALLS INTO QUESTION CORRECTNESS OF COMMISSIONER OF INCOME TAX (APPEALS) -10, KOLKATAS ORDER DATED 30.03.2017 PASSED IN CASE NO.119/CIT(A)-10/CI R-36/15-16/KOL UPHOLDING ASSESSING OFFICERS ACTION MAKING LONG TE RM CAPITAL GAINS ADDITION OF 37,85,396/- AFTER INVOKING SECTION 50C AS WELL AS T HE DISALLOWANCE THE EXPENDITURE CLAIMED IN QUESTION OF 2 LAC ALLEGEDLY INCURRED ON TRANSFER OF PROPERTY AND CLAIM AS DEDUCTION INVOLVING PROCEEDIN GS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. LEARNED COUNSEL HAS FILED AN ADDITIONAL GROUND F IRST OF ALL PLEADING THEREIN THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN APPLYING SECTION 50C OF ITA NO.1050/KOL/2017 A. Y. 2012-13 SH RAJ KUMAR BAID VS. DCIT, CIR-36, KOL. PAGE 2 THE ACT QUA HIS RIGHT TO ACQUIRE THE FLAT / CAPITAL ASSET IN Q UESTION SINCE THE SAME IS NEITHER IN THE NATURE OF LAND NOR A BUILDIN G. LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSES ADMISSION OF THIS A DDITIONAL GROUND. HIS ARGUMENT IS THAT THE SAME RAISE ALTOGETHER NEW QUES TION OF LAW AND FACT WHICH CANNOT BE ENTERTAINED AT THIS STAGE BELATED STAGE A S PER HON'BLE APEX COURTS DECISION IN NTPC VS. CIT 229 ITR 383 (SC). WE FIND THE REVENUES SOLE CONTENTION AGAINST ADMISSION OF ASSESSEES ADDITION AL GROUND TO BE DEVOID OF MERIT. THIS TRIBUNALS SPECIAL BENCHS DECISION IN ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT (2012) 137 ITD 26 (MUM) HOLDS THAT WE CAN VERY WEL L ENTERTAIN SUCH AN ADDITIONAL GROUND FOR ASCERTAINING AN ASSES SEES CORRECT TAX LIABILITY IN TERMS WITH HON'BLE APEX COURTS DECISION HEREINABOV E. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THE FACT THAT THE ASS ESSEE SEEKS TO ARGUE NON- APPLICATION OF SECTION 50C ONLY IN CASE OF ONLY RIG HT TO ACQUIRE THE RESIDENTIAL FLAT IN QUESTION. WE THEREFORE ADMIT TAXPAYERS ADD ITIONAL GROUND. 3. THERE IS NO DISPUTE BETWEEN THE PARTIES ABOUT TH E BASIC FACT THAT ASSESSEE HAD BEEN ALLOTTED AN UNFURNISHED FLAT IN A SOCIETY WAY-BACK IN YEAR 1984. THE SAME REMAINED AS IT IS FOR A VERY LONG TI ME. THE ASSESSEE NEVER OCCUPIED THIS FLAT TILL SALE OF HIS ALLOTMENT RIGHT S ON 03.08.2011 IN THE RELEVANT PREVIOUS YEAR. THE ASSESSING OFFICER INVOKED SECTIO N 50C OF THE ACT TO MAKE REFERENCE TO THE DVO WHO ASCERTAINED ITS FAIR MARKE T VALUE TO BE 75,85,396/- AS AGAINST THE AGREED SALE CONSIDERATION OF 40 LAC. THIS FOLLOWED THE IMPUGNED LONG TERM CAPITAL GAINS ADDITION OF 37,85,396/- MADE IN THE ASSESSMENT ORDER DATED 26.03.2015 AS UPHELD IN THE LOWER APPELLATE PROCEEDINGS. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTION REGARDING APPLICABILITY OF SECTION 50C IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. THERE IS NO DISPUTE THAT THE ASSESSEE HAD ACQUIRED / TRANSFERRED HIS RIGHT A UNFURNISHED FLAT WHICH WAS NEVER REGISTERED IN HIS NAME. IT WAS THEREFORE ONLY IN THE NATURE OF AN ALLOTMENT RIGHT WHAT WAS TRANSF ERRED IN THE RELEVANT PREVIOUS YEAR FORMING SUBJECT-MATTER IN THE INSTANT LIS. THIS TRIBUNALS DECISION IN CASE OF M/S BANIARIA ENG. PVT. LTD. VS. ITO ITA NO.635/KOL/2018 DECIDED ITA NO.1050/KOL/2017 A. Y. 2012-13 SH RAJ KUMAR BAID VS. DCIT, CIR-36, KOL. PAGE 3 ON 04.07.2017 HOLDS THAT SECTION 50C OF THE ACT DOE S NOT APPLY EXCEPT IN A CASE INVOLVING TRANSFER OF LAND AND BUILDING FORMIN G THE RELEVANT CAPITAL ASSET FOR THE PURPOSE OF DETERMINATION OF FAIR MARKET VAL UE IN THE STATUTORY REFERENCE. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO PIN PO INT ANY EXCEPTION ON FACTS OR LAW. WE THUS ACCEPT ASSESSEES ADDITIONAL GROUND TO DELETE THE IMPUGNED LONG TERM CAPITAL GAINS ADDITION OF 37,85,396/-. 5. COMING TO THE LATTER ISSUE OF DISALLOWANCE OF 2 LAC DEDUCTION CLAIMED AS INCURRED FOR TRANSFER OF THE PROPERTY. MR. SURAN A IS VERY FAIR IN NOT PRESSING FOR THE SAME KEEPING IN MIND SMALLNESS OF THE AMOUN T. THE SAME IS THEREFORE REJECTED AS NOT PRESSED. 6. THIS ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 24/ 08/2018 SD/- SD/- ( %) (' %) (M.BALAGANESH) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 24 / 08 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SRI RAJ KUMAR BAID (PROP. M/S RAMESH MOT ORS), 9, MANGOE LANE, 1 ST FLOOR, R.NO.29 KOLAKTA-70001 2. /RESPONDENT-DCIT, CIR-36, 110, SHANTI PALLY, EM BYE PASS, NR. RUBY HOSPITAL AAYAKAR BHAWAN, POORVA, KOLKATA-107 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,