The BEML Employees Co-operative Society Ltd, Bengaluru V. Income Tax Officer, Ward-4(2)(2), Bengaluru

ITA 1107/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5950 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 26 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 05-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Principle of natural justice; Cost of acquisition; Fair market value; Set aside
• Section: 50C; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 1107 / BANG/201 8 ASSESSMENT YEAR : 2 0 1 3 - 14 M/S. THE BEML EMPLOYEES CO-OPERATIVE SOCIETY LTD., M/S. BEML BENGALURU COMPLEX, NEW THIPPASANDRA, BANGALORE 560 075. PAN: AAALT0689E VS. THE INCOME TAX OFFICER, WARD 4 [2] [2], BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI NARENDRA SHARMA, ADVOCATE R EVENUE BY : SHRI R.N. SIDDAPPAJI, ADDL. CIT (DR) DATE OF HEARING : 1 2 .0 3 .2019 DATE OF PRONOUNCEMENT : 22 .0 3 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-4, BANGALORE DATED 31.01.2018 FOR ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] 4 [HEREINAFTER CALLED SHORT CIT(A)], BENGALURU IN SO FAR IT IS AGAINST THE APPELLANT SOCIETY IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, FACTS AND CIRCUMSTANCES OF THE APPELLANT SOCIETY'S CASE. 2. THE EX-PARTE ORDER PASSED BY THE LEARNED CIT(A) IS BAD IN LAW AS THE APPELLANT SOCIETY WAS NOT AFFORDED A REASONABLE OPPORTUNITY OF HEARING, WHICH IS IN GRAVE VIOLATION OF PRINCIPLES OF NATURAL JUSTICE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE APPELLANT SOCIETY NO ASSESSABLE INCOME/LOSS OF THE RESIDENTIAL LAYOUT ACTIVITIES TRANSACTION AND CARRIED OUT FOR NO GAIN/LOSS BASIS AND U/S. 50C OF THE INCOME TAX ACT, 1961. (HEREINAFTER CALLED AS SHORT ACT) NOT APPLICABLE FOR TREATING A SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED CIT (A), IS NOT JUSTIFIED IN LAW IN LAW IN CONFIRMING THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER OF RS. 1,34,08,000, BEING INCOME OF LONG TERM CAPITAL GAINS UNDER THE PROVISIONS OF SECTION 50C OF THE ACT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.1107/BANG/2018 PAGE 2 OF 3 5. THE LEARNED CIT(A) ERRED IN LAW IN NOT GIVING PROPER COST OF ACQUISITION ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED CIT(A), FAILED TO APPRECIATE THAT THE APPELLANT SOCIETY DOES NOT COME IN THE PURVIEW OF THE PROVISIONS OF SECTION 50C OF THE ACT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. WITHOUT PREJUDICE THE LEARNED CIT(A) FAILED TO APPRECIATE THAT AMOUNT OF RS. 25,74,500/- AND RS. 22,14,300 RECEIVED FROM ITS MEMBER TOWARDS THE EXPENDITURE OF ASSET NOT FOR THE FAIR MARKET VALUE OF ASSET AND CONSEQUENTLY THERE COULD NOT BE ANY ADDITION, 50C OF THE ACT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT SOCIETY RECEIVED THE SITE ADVANCE/DEPOSIT FROM MEMBER'S AMOUNTS ARE REFLECTED IN THE BALANCE SHEET AND TREATED AS SITE DEPOSITS IN THE LIABILITY SIDE AND PAYMENT OF AMOUNT, TOWARDS LAYOUT COST, TREATED AS LAYOUT WORK IN PROGRESS ON THE ASSETS SIDE OF THE BALANCE SHEET. 9. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER AS PER THE PARITY OF REASONING OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF KARANVIR SINGH 349 ITR 692, THE APPELLANT SOCIETY DENIES ITSELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTION 234B AND 234C OF THE ACT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. FURTHER THE LEVY OF INTEREST UNDER SECTION 234B IT 234C OF THE ACT IS ALSO BAD IN LAW AS THE PERIOD, RATE, QUANTUM AND METHOD OF CALCULATION ADOPTED ON WHICH INTEREST IS LEVIED ARE ALL NOT DISCERNIBLE AND ARE WRONG ON THE FACTS OF THE CASE. 10. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBSTITUTE AND DELETE ANY OR ALL OF THE GROUNDS OF APPEAL URGED ABOVE. 11. FOR THE ABOVE AND OTHER GROUNDS TO BE URGED DURING THE HEARING OF THE APPEAL, THE APPELLANT SOCIETY PRAYS THAT THE APPEAL BE ALLOWED IN THE INTEREST OF EQUITY AND JUSTICE. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THE IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE. HE SUBMITTED THAT SUFFICIENT OPPORTUNITIES OF BEING HEARD WERE NOT PROVIDED BY CIT(A) AND MOREOVER,EVEN AS PER THE IMPUGNED EX-PARTE ORDER OF CIT(A), THE ISSUE IN DISPUTE IS NOT DECIDED BY HIM ON MERIT. HE SUBMITTED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. ITA NO.1107/BANG/2018 PAGE 3 OF 3 4. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A).HE DRAWN OUR ATTENTION TO PARA NO. 1 OF THE ORDER OF CIT(A) AND POINTED OUT THAT LD. CIT(A) HAS FIXED THE APPEAL FOR HEARING ON 3 OCCASIONS I.E. 21.12.2017, 12.01.2018 AND 22.01.2018 AND HENCE, NO FURTHER OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER PARA 1 OF THE IMPUGNED ORDER OF CIT(A), THIS IS NOTED BY CIT(A) THAT ASSESSEES AR ATTENDED PROCEEDINGS ON 3 OCCASIONS I.E. 21.12.2017, 12.01.2018 AND 22.01.2018 SEEKING FURTHER ADJOURNMENT. IN OUR CONSIDERED OPINION, FURTHER OPPORTUNITY SHOULD HAVE BEEN PROVIDED BY CIT(A) IN THE INTEREST OF JUSTICE. HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 22 ND MARCH, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.