FAIYAZ MOHAMMED, MUMBAI V. ITO WD 12(1)(4), MUMBAI

ITA 1110/MUM/2015

• Counselvise Citation: 111019914 RSA 2015
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 23-09-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 24-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Wrong claim
• Section: 50C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.1110/MUM/2015 ASSESSMENT YEAR: 2010-11 FAIYAZ A MOHAMMED, 46 & 48, CRYSTAL TOWER, MARUTI LANE, FORT, MUMBAI-400001 / VS. INCOME TAX OFFICER, WARD-12(1)(4), AAYAKAR BHAVAN, MUMBAI-400020 ( ! ' /ASSESSEE) ( # / REVENUE) PAN. NO. AFLMP7105A ! ' / ASSESSEE BY SHRI VIJAY MEHTA # / REVENUE BY SHRI B.YADAGIRI -DR $ #% & ' ' / DATE OF HEARING : 24/09/2015 & ' ' / DATE OF ORDER: 24/09/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 05/01/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND ARGUED BY SHRI VIJAY MEHTA, LD. COU NSEL FOR THE ASSESSEE, PERTAINS TO CONFIRMING THE ACTION OF THE FAIYAZ A. MOHAMMED ITA NO.1110/MUM/2015 2 ASSESSING OFFICER TAXING THE CAPITAL GAIN AS SHORT TERM CAPITAL GAIN AMOUNTING TO RS.19,44,992/- INSTEAD OF LONG TE RM CAPITAL GAIN OF RS.66,941/- WITHOUT CONSIDERING THE CLAIM OF THE ASSESSEE, WHICH WAS REVISED DURING ASSESSMENT PROCEEDINGS AND FURTHER WITHOUT CONSIDERING THE DAT E OF PURCHASE OF FLATS, ALLOTMENT DATED 18/04/2006. THE LD. COUNSEL PLACED RELIANCE UPON THE DECISION FROM HON BLE JURISDICTIONAL HIGH COURT IN CIT VS PRUTHVI BROKERS AND SHARE HOLDERS 349 ITR 336. IT WAS PRAYED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE LD. ASSESSING O FFICER. 2. ON THE OTHER HAND, THE LD. DR, SHRI B. YADAGIRI , STRONGLY DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE HIMSELF CLAIM ED SHORT TERM CAPITAL GAIN, WHICH WAS RIGHTLY DENIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. COMMISSIONER OF IN COME TAX (APPEALS). 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL DECLARED INC OME OF RS.5,11,260/-. DURING THE RELEVANT YEAR, THE ASSESS EE SOLD RESIDENTIAL PREMISES AT ORCHID ENCLAVE ON A SALES CONSIDERATION OF RS.64,07,500/- ON 20/08/2009 WHICH WAS BOOKED VIDE ALLOTMENT LETTER DATED 18/04/2006 AND PAYMENTS WERE MADE FROM THAT DATE ITSELF. THE CLAIM OF THE ASSESSEE IS THAT THE DATE OF ALLOTMENT OF FLAT SHOU LD HAVE BEEN TREATED AS THE DATE OF PURCHASE I.E. 18/04/2006 AND NOT 17/08/2009. THE ASSESSEE PLACED RELIANCE UPON THE FAIYAZ A. MOHAMMED ITA NO.1110/MUM/2015 3 DECISION OF THE TRIBUNAL IN THE CASE OF ACIT VS SMT . VANDANA RANA ROY (ITA NO.6173/MUM/2011) ORDER DATED 07/11/2012. WE FIND FORCE IN THE ARGUMENT OF THE A SSESSEE, BECAUSE, OUR VIEW IS SUPPORTED BY THE DECISION FROM HONBLE GUJARAT HIGH COURT IN CIT VS JINDAS PANCHAND GANDHI (2005) 279 ITR 552 (GUJ.) AND CIT VS ANILABEN UPEND RA SHAH (2003) 262 ITR 657 (GUJ.) FOR THE PROPOSITION THAT DATE OF ALLOTMENT IS RELEVANT DATE FOR COMPUTING CAPITAL G AINS. THE RATIO LAID DOWN IN JEETENDRA MOHAN VS ITO (2007) 11 SOT 594 (DEL.) FURTHER SUPPORTS OUR VIEW. EVEN OTHERWIS E, THE MANDATE OF THE CONSTITUTION IS TO LEVY AND COLLECT DUE TAXES AND EVEN IF THE ASSESSEE HAS MADE A WRONG CLAIM, IT IS THE DUTY OF THE ASSESSING OFFICER TO DECIDE IN ACCORDAN CE WITH LAW AND NOT AS PER THE CLAIM OF THE ASSESSEE, THEREFORE , WE REMAND THIS FILE TO THE FILE OF THE LD. ASSESSING O FFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AFRESH ON MERIT. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD. 2.2. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUN D WITH RESPECT TO ADDITION U/S 50C OF THE ACT, WHICH IS BA SED ON STAMP DUTY VALUATION, BY PLACING RELIANCE UPON THE DECISION IN NTPC VS CIT 229 ITR 383 (SC), UNION OF INDIA VS BRITISH INDIA CORPORATION LTD. 268 ITR 481 (SC) AND MAHINDR A & MAHINDRA LTD. VS DCIT (30 SOT 374) (SB) (MUM.). THU S, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALSO RE MANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMIN E THE CLAIM OF THE ASSESSEE AND DECIDE AFRESH IN ACCORDANCE WIT H LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD. FAIYAZ A. MOHAMMED ITA NO.1110/MUM/2015 4 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24/09/2015. SD/ - (RAMIT KOCHAR) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER $ % MUMBAI; ) DATED : 24/09/2015 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT 2. /0 -. / THE RESPONDENT. 3. 1 1 $ 2' ( +, ) / THE CIT, MUMBAI. 4. 1 1 $ 2' / CIT(A)- , MUMBAI 5. 4#5 /' , 1 +,' + 6 , $ % / DR, ITAT, MUMBAI 6. 7 % / GUARD FILE. / BY ORDER, 04,' /' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI