Shri Bhanubhai K.Amrelia, Surat V. The Income tax Officer,Ward-3(3), Surat

ITA 1161/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1485 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Keywords: Sale consideration of property below Jantri Value; Gift; Fair market value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER. ITA. NO.1161/AHD/2013 (ASSESSMENT YEAR:2009-10) SHRI BHANUBHAI K. AMRELIA 25, SHRUNGAR SOCIETY, PARLE POINT, ATHWALINES, SURAT - 395007 APPELLANT VS. THE INCOME TAX OFFICER, WARD-3(3), SURAT RESPONDENT PAN: ABQPA9699C /BY APPELLANT : SMT. URVASHI SHODHAN, A.R. /BY RESPONDENT :SHRI NARENDRA SINGH, SR. D.R. /DATE OF HEARING : 31.05.2016 /DATE OF PRONOUNCEMENT : 31.05.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-IV, SURAT, DAT ED 28.02.2013 FOR A.Y. 2009-10 ON FOLLOWING GROUNDS. ITA NO.1161/AHD/13 A.Y. 09-10 [SHRI BHANUBHAI K. AMRELIA VS. ITO] PAGE 2 1. THAT A GRAVE ERROR OF LAW AS WELL AS OF FACT HA S BEEN COMMITTED BY THE LEARNED COMMISSIONER (APPEALS) IN SO FAR AS CONFIRMING THE ASSESSMENT ORDER OF THE ASSESSING OFFICER WHO HAS ASSESSED CAPITAL GAINS IN THE ASSESSMENT YEAR 2009-2010 WHICH IN FACT AND AS PER LAW WAS ASSESSABLE IN THE ASSESSMENT YEAR 2008- 2009. 2. THAT THE LEARNED COMMISSIONER (APPEALS) HAS FAIL ED TO TAKE COGNIZANCE OF THE FACT THAT THE LEARNED DEPARTMENTAL VALUATION OFFICER HAS VALUED THE IMMOVABLE PROPERTY WITHOUT FACTORING IN SEVERE COVENANTS RUNNING WITH THE IMMOVABLE PROPERTY BEFORE ADOPTING THE FAIR MARKET VALUE OF THE PROPER TY AS PER THE REPORT OF THE SAID DEPARTMENTAL VALUATIO N OFFICER. 3. THAT THE LEARNED COMMISSIONER (APPEALS) HAS ERRE D IN SO FAR AS TREATING A TRANSFER OF IMMOVABLE PROPERTY WHICH IS MADE OUT OF NATURAL LOVE AND AFFECTION BY THE ASSESSEE TO HIS DAUGHTER AND WHICH IS REVOCABLE IN NATURE AS FALLING WITHIN THE AMBIT OF SECTION 50C O F THE INCOME TAX ACT,1961. 4. THAT THE LEARNED COMMISSIONER (APPEALS) HAS ERRE D IN NOT CONSIDERING THE FAIR MARKET VALUE IN SO FAR AS IT EXCEEDS THE VALUE AS DECLARED BY THE YOUR HUMBLE APPELLANT AS GIFT MADE BY A FATHER TO HIS DAUGHTER OUT OF NATURAL LOVE AND AFFECTION AND THUS BEING NON TAXABLE AND HAS THUS ERRED IN INSTEAD CONSIDERING T HE SAID VALUE AS CAPITAL GAINS BY INVOKING THE DEEMING FICTION OF SECTION 50C. 2. DURING THE YEAR, ASSESSEE HAD SOLD A PLOT NO.25 AT SHRUNGAR CO-OPERATIVE SOCIETY LTD., PARLE POINT, SU RAT. INQUIRIES MADE WITH STAMP REGISTRAR RECEALED THAT J ANTRI RATE FOR PLOT WAS RS.81,91,100/-. ASSESSING OFFICER INV OKED THE ITA NO.1161/AHD/13 A.Y. 09-10 [SHRI BHANUBHAI K. AMRELIA VS. ITO] PAGE 3 PROVISIONS OF SECTION 50C OF THE ACT AND ADDED RS.51,91,100/-. 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE A UTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F ASSESSEE AND HAVING CONSIDERED THE SAME, CIT(A) GRANTED PART IAL RELIEF TO THE ASSESSEE. 2.2 BEFORE US, LD. AUTHORIZED REPRESENTATIVE IN FIR ST GROUND ASSESSEE HAS RAISED THE ISSUE OF YEAR OF TAXABILITY OF CAPITAL GAINS AS A RESULT OF TRANSFER IN QUESTION BY INVOKI NG THE DEEMING FICTION OF SECTION 50C OF THE ACT IN FINANC IAL YEAR 2008-09. ASSESSING OFFICER HAS ASSESSED CAPITAL GAI N IN THE A.Y. 2009-10. ACCORDING TO ASSESSEE, IT WAS TO BE ASSESSED IN A.Y.2008-09 BECAUSE SALE DEED WAS EXECUTED IN THE Y EAR RELEVANT TO A.Y. 2008-09 AND THE REGISTRATION OF DO CUMENT IS NOT THE BASIS FOR ASCERTAINING THE TIME OF TRANSFER OF PROPERTY. THIS VIEW IS FORTIFIED BY THE DECISION OF ITAT B BENCH IN CASE OF SHRI AMIT KUMAR VS. ITO & ORS. IN ITA NOS. 1281 & 1281/ AHD/2013. AGREED TO THE CONCLUSION OF ASSESSEE, WE HOLD THAT ESSENCE OF TRANSFER IS THE DATE OF EXECUTION OF DOC UMENT WHICH FALLS IN A.Y. 2008-09 AND NOT A.Y. 2009-10 AS ASSES SED BY ITA NO.1161/AHD/13 A.Y. 09-10 [SHRI BHANUBHAI K. AMRELIA VS. ITO] PAGE 4 REVENUE AUTHORITIES. SO, IN THE INTEREST OF JUSTIC E, WE SET ASIDE THE ISSUE TO ASSESSING OFFICER WITH DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OP PORTUNITY OF HEARING TO THE ASSESSEE. SINCE, WE ARE RESTORIN G THE MATTER TO ASSESSING OFFICER ON THE ISSUE AS DISCUSSED ABOV E, SO, WE ARE REFRAINING TO COMMENT ON MERITS OF ISSUE AT HAN D. 3. AS A RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON THIS THE 31 ST DAY OF MAY, 2016. SD/- SD/- (N. K. BILLAIYA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD: DATED 31/05/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE $%&%'( ) / CONCERNED CIT 4 )- / CIT (A) ,-./00'(1 '(123& / DR, ITAT, AHMEDABAD 4/5678 / GUARD FILE. BY ORDER / 1 /2% '(123&