Monica Chakraborty, Kolkata V. I.T.O.Ward-31-(3), Kolkata

ITA 117/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7530 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-06-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 23-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER JCITSRDR
• Assessee Lawyers: SUMIT KUMAR B COM H ACS
• Keywords: Sale consideration of property below Jantri Value
• Section: 56(2)(vii)(b); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.117/KOL/2019 ASSESSMENT YEAR:2014-15 MONICA CHAKRABORTY 18B, BHOWANIPUR, KOLKATA-700 020 [ PAN NO.AERPC 9902 J ] / V/S . INCOME TAX OFFICER WARD-31(3), 10B, MIDDLETON ROW, 4 TH FLOOR, KOLKATA-71 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SUMIT KUMAR, B.COM (H), ACS /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 27-06-2019 /DATE OF PRONOUNCEMENT 26-07-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2014-15 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-09, KOLKATAS ORDER DATED 31.01.2018 PASSED IN CASE NO.286/CIT(A)-9/WD-31(3)/2016-17/KOL, INVO LVING PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. ASSESSEES SOLE SUBSTANTIVE GRIEVANCE CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION ADDING THE AMOUNT IN ISSUE OF 24,69,200/- U/S 56(2)(VII). THE CIT(A)S DETAILED FINDINGS AFFIRMING THE IMPUGNED A DDITION READS AS UNDER:- I HAVE GONE THROUGH THE ASSESSMENT ORDER, GROUNDS OF APPEAL AND THE CASE WAS DISCUSSED WITH THE A/R OF THE APPELLANT. GROUND NO.1 TO 4 RELATES TO ADDITION OF RS.24,69,20 0 U/S. 56(2)(VII)(B) OF ACT. THE APPELLANT STATES THAT ITS CASE IS COVERED BY PR OVISO TO SECTION 56(2)(VII)(B) OF ACT, WHICH PROVIDES THAT WHERE DATE OF AGREEMENT FIXING THE AMOUNT OF CONSIDERATION AND DATE OF REGISTRATION ARE NOT THE SAME, THE STAMP DUTY VALUE ITA NO.117/KOL/2019 A.Y. 2014-15 MONICA CHAKRABORTY VS. ITO WD-31(3), KOL . PAGE 2 ON THE DATE OF THE AGREEMENT MAY BE TAKEN FOR THE P URPOSE OF THIS SUB-CLAUSE, PROVIDED THE AMOUNT OF CONSIDERATION OR A PART THER EOF HAS BEEN PAID BY ANY MODE OTHER THAN CASH ON OR BEFORE THE DATE OF AGREE MENT. HOWEVER IT IS SEEN THAT NO COMPLIANCE WITH THIS PRO VISO HAS BEEN MADE. THE APPELLANT HAS NOT BEEN ABLE TO PROVE THAT ANY PAYME NT HAS BEEN MADE BY ANY MODE OTHER THAN CASH ON OR BEFORE THE DATE OF AGREE MENT BEING 16/05/2007. THE RELEVANT PARA OF THE AGREEMENT READS AS UNDER: THEY HAVE GIVEN A SUM OF RS.15,000/-( RUPEES FIF TEEN THOUSAND ONLY) AS ADVANCE TO THE DEVELOPER FIRMS AND THE RES T AMOUNT PAID A SUM OF RS.9,85,000 (RUPEES NINE LAKHS EIGHTY FIVE THOUS AND ONLY) WHICH IS TO BE PAID DURING CONSTRUCTION WORK. IN VIEW OF THE SAME, THE GROUNDS OF APPEAL RELATING TO ADDITION OF RS.24,69,200 ARE DISMISSED. 3. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS. THE LEARNED COUNSEL HAS FILED A DETAILED NOTE THAT THE ASSESSEE / PURCHASER SOUGHT TO BE ASSESSED U/S 56(2)(VII) OF THE ACT ON ACCOUNT OF DIFFERENCE BET WEEN AGREEMENT VALUE AND CONVEYANCE DEED VALUATION FALLING ON 16.05.2007 AND 23.07.2014 AMOUNTING TO 24,62,900/- INVOLVING SUM OF 10 LAC AND 54,50,000/-; RESPECTIVELY INVOLVED A SETTLEMENT DEED BETWEEN HERSELF / TENANT AND THE LA NDLORD AS WELL AS THE BUILDER / DEVELOPER M/S KAMLA DEVELOPERS AGREEING TO BUILD RE SIDENTIAL UNIT IN LIEU OF HER TENANCY RIGHTS. LEARNED COUNSEL PLEADS THAT THE ASS ESSING OFFICER AS WELL AS CIT(A) HAVE ERRED IN APPLYING THE IMPUGNED STATUTORY PROVI SION. IT IS FURTHER HIGHLIGHTED THAT THE ASSESSEE HAD PAID ONLY 18.87% OF THE AMOUNT AS AGAINST OTHER SHAREHOLDER M/S AUROBINDO CHAKRABORTY HAVING INCURRED THE REMAINING PART OF THE CONSIDERATION. I FIND THAT NEITHER OF THE LOWER AUTHORITY HAS CONSIDERED ALL THESE FACTUAL DETAILS IN RESPECT OF ORDERS. 4. COMING TO VALUATION ASPECT, I FIND THAT SEC. 56( 2)(VII)(B) PROVISO MAKES IT CLEAR THAT THE ASSESSING OFFICER MAY ALSO MAKE REFERENCE TO THE DVO AS IN SEC. 50C(2) OF THE ACT. LEARNED DEPARTMENTAL REPRESENTATIVE AT THI S STAGE SUBMITS THAT THE ASSESSEE HAD NEVER RAISED SUCH VALUATION PLEA IN LOWER PROCE EDINGS. I FIND NO MERIT IN THE INSTANT ARGUMENT AS HON'BLE JURISDICTIONAL HIGH COU RTS DECISION IN (2014) 372 ITR 83 (CAL) SUNIL KUMAR AGARWAL VS. CIT HOLDS THAT SUCH A REFERENCE IS MANDATORY EVEN IF ITA NO.117/KOL/2019 A.Y. 2014-15 MONICA CHAKRABORTY VS. ITO WD-31(3), KOL . PAGE 3 AN ASSESSEE DOES NOT PRAY FOR THE SAME BEFORE THE A SSESSING OFFICER. I ACCORDINGLY DEEM IT APPROPRIATE TO RESTORE THE INSTANT LIS BACK TO THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT. THE ASSESSEE SHALL BE ENTITLED TO RAISE ALL FACTUAL / LEGAL PLEAS IN CONSEQUENTIAL PROCEEDINGS. 6. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN OPEN COURT ON 26/07/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 26/07/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-MONICA CHAKRABORTY 18B, BHOWANIPUR, KOLK ATA-20 2. /RESPONDENT-ITO WD-31(3), 10B, MIDDLETON ROW, 4 TH FL, KOLKATA-71 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',