Sri Ashish Agarwal, Siliguri V. ITO, WD-1(1), SILIGURI, Siliguri

ITA 1287/KOL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9194 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 13-10-2015
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR CIT LD
• Assessee Lawyers: SOUMITRA CHOUDHURY LD
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

1 ITA NO. 1287/K/15 SRI ASHISH AGARWAL IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D B ENCH, KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1287/KOL/2015 A.Y 2011-12 SRI ASHISH AGARWAL.. ................................... APPELLANT PAN: AHGPA8330E C/O ASHISH WHEELS LTD SILIGURI INDUSTRIAL ESTATE SEVOKE ROAD SILIGURI -734001(JPG). -VS- INCOME TAX OFFICER... RESPONDENT WARD 1(1), SILIGURI. APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, LD. AR FOR THE A SSESSEE SHRI SAURABH KUMAR, ADDL. CIT, LD.DR FOR THE REVENU E DATE OF HEARING: 22-03-2017 DATE OF PRONOUNCEMENT: 2 4-03-2017 SHRI S.S. VISWANETHRA RAVI , JM: THIS APPEAL BY THE ASSESSEE IS AGAINST ORDER DT: 23 -07-2015 PASSED BY THE COMMISSIONER OF INCOME TAX-(APPEALS), SILIGURI FOR THE ASSESSMENT YEAR 2011-12. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED AS MANY A S SEVEN GROUNDS AMONGST WHICH, TWO EFFECTIVE GROUNDS EMERGE FOR OUR CONSIDERATION. FIRSTLY, WHETHER THE CIT-A IS JUSTIFIED IN CONFIRMING THE AD DITION ON ACCOUNT OF DETERMINING THE STCG [ SHORT TERM CAPITAL GAIN ] B Y ADOPTING THE VALUE AS INDICATED BY STAMP VALUATION AUTHORITY AT RS.46,64, 616/- AGAINST THE VALUE OF 2 ITA NO. 1287/K/15 SRI ASHISH AGARWAL RS.34,68,088/- OFFERED BY THE ASSESSEE. SECONDLY, T HE CIT-A ERRED IN NOT REFERRING THE ISSUE TO DVO AS REQUIRED U/SEC. 50C(2 ) OF THE ACT. 3. THE LD. AR SUBMITS THAT THE AO WITHOUT CONSIDERI NG THE FACTS TO THE EFFECT THAT THE SAID PROPERTY IS PART OF STOCK-IN-TRADE C OMPUTED THE CAPITAL GAIN AT RS.11,96,328/- IN TERMS OF SECTION 50C OF THE ACT. THE CIT-A CONFIRMED THE SAME BY OBSERVING THAT THERE WAS NO STOCK IN TRADE FOUND IN BALANCE SHEET. THE LD. AR OF THE ASSESSEE ARGUED THAT THE IMPUGNED ORDER OF THE CIT-A IS ARBITRARY AND ILLEGAL. 4. ON THE OTHER HAND, THE LD.DR RELIED ON THE ORDER S OF AO AND CIT-A. 5. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT AS RIGHTLY POINTED BY THE CIT-A THAT T HE ASSESSEE HIMSELF TREATED THE INCOME DERIVED FROM CAPITAL GAIN AS STCG AND D ECLARED AN INCOME OF RS.2,81,912/- AS STCG, IF WE TAKE INTO ACCOUNT THE SAME, CONSIDERING THE PROPERTY IN QUESTION AS STOCK-IN TRADE DOES NOT AR ISE AT ALL. HOWEVER, WE FIND THAT THE ASSESSEE RAISED GROUND NO.5 AS AN ALTERNAT IVE, CHALLENGING THE ORDER OF CIT-A ERRED IN NOT APPLYING THE PROCEDURE CONTEM PLATED IN SECTION 50C(2) IN REFERRING THE ISSUE TO DIST. VALUATION OFFICER. THE LD.AR ALSO ARGUED THAT IN CASE OF ASSESSEE COULD NOT PROVE THAT THE PROPERTY IN DI SPUTE IS NOT PART OF STOCK-IN- TRADE AND THE ISSUE MAY BE RESTORED TO THE FILE OF AO FOR HIS CONSIDERATION IN REFERRING THE ISSUE TO THE DVO. THE LD.DR ALSO AGR EED TO SUCH PROPOSITION IN RESTORING THE ISSUE TO THE FILE OF AO. ACCORDINGLY, WE RESTORE THE ISSUE TO THE FILE OF AO FOR HIS CONSIDERATION IN TERMS OF DISCUS SION ABOVE. THUS, THE EFFECTIVE GROUNDS AS MADE ABOVE ARE ALLOWED FOR STATISTICAL P URPOSES. 3 ITA NO. 1287/K/15 SRI ASHISH AGARWAL 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 24-03 -2017 SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 24-03-2017 COPIES OF THE ORDER FORWARDED TO : (1) THE ASSESSEE: SHRI ASHISH AGARWAL C/O ASHISH WH EELS LTD SILIGURI INDUSTRIAL ESTATE, SEVOKE ROAD, SILIGURI-734001(JALPAIGURI). (2) THE DEPARTMENT: THE INCOME TAX OFFICER, WARD 1( 1), SILIGURI, AAYKAR BHAWAN, MATIGARA, SILIGURI-734010. (3) COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE **PP/SPS BY ORDER ASSISTA NT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA