Smt. Rekhaben Chandubhai Rameshbhai Patel, Surat V. The Income Tax Officer, Ward-2(2)(4), Surat

ITA 1304/AHD/2017

AI Insights

The case revolves around the dispute concerning the correct share of the assessee, Rekhaben Chandubhai @ Rameshbhai Patel, in a jointly owned property sold during the financial year 2007-08. The Assessing Officer initially treated her share as 1/13 based on the number of co-owners who executed the sale deed, without considering the actual shareholding derived from the ancestral property. The assessee contested this, providing evidence of her actual 1/32 share, which was based on the inheritance from her predecessor, Dayalbhai Patel. The Tribunal's decision corrected the Assessing Officer's error and acknowledged the tax paid under the Vivad Se Vishwas Scheme.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 128372 (ITAT-SURAT)
• Duration Of Justice: 5 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-03-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2017
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Valuation report
• Section: 143(3); 13

Judgement Text

आयकर अपीलȣय अͬधकरण, स ु रत Ûयायपीठ, स ु रत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT “SMC” BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER आ.अ.सं./ITA No.1304/AHD/2017 (AY 2008-09) (Hearing in physical Court) Rekhaben Chandubhai @ Rameshbhai Patel, Village Kuvad, Tal. Olpad, Surat PAN No: CJRPP 7666 R Vs Income Tax Officer, Ward- 2(2)(4), Aayakar Bhawan, Surat अपीलाथȸ/Appellant Ĥ×यथȸ /Respondent Ǔनधा[ǐरती कȧ ओर से /Assessee by Shri Tinish Mody, C.A राजèव कȧ ओर से /Revenue by Shri Vinod Kumar, Sr-DR सुनवाई की तारीख/Date of hearing 22.03.2023 उɮघोषणा कȧ तारȣख/Date of pronouncement 24.03.2023 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of Ld. Commissioner of Income-tax (Appeals)-1[for short to as “Ld.CIT(A)”] dated 31.03.2017 for assessment year 2008-09, which in turn arises out assessment order passed by Assessing Officer under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 27.11.2015. The assessee has raised the following grounds of appeal:- “[1] On the facts of the case, as well as law on the subject, the learned Assessing Officer erred in making addition of Rs.31,40,203/- for her share treating it as “On Money” received on the basis of the alleged Sauda Chitti. ITA No.1304/AHD/2017 (A.Y 08-09) Rekhaben C Rameshbhai Patel 2 [2] On the facts and circumstances of the case, as well as law on the subject, the learned Assessing Officer erred in not accepting the Indexed Cost of Acquisition claimed by the assessee at Rs.3,17,067/- as on 01-04-1981 on the basis of Valuation Report of the government Approved Valuer. [3] On the facts and circumstances of the case, as well as law on the subject, learned CIT(A)-1,Surat erred in confirming the addition made by the A.O as well as erred in adopting the Value of the property as per VDO’s report and thereby ignoring the value adopted by the government approved valuer.” 2. At the outset of hearing, Ld. Authorized Representative (Ld.AR) for the assessee submits that a very limited dispute is left in the present appeal whether the assessee has 1/13 or 1/32 shares in the joint property sold by assessee and other co-owners. The Ld. AR for the assessee submits that right from the beginning, he has been asserting the fact that Dayalbhai Patel was the original owner, who left behind eight of his legal heir, including late Chandubhai Dayalbhai Patel, who was having 1/8 th share in land bearing Revenue Survey No.116/2/b, Block No.161 situated in village Palanpor Village Taluka Choryasi, District Surat. Late Chandubhai Dayalbhai Patel left behind him his four legal heirs namely Sharda Chandubhai Patel, Haresh Chandubhai Patel, Rekhaben Chandubhai Patel and Ajay Chandubhai Patel thereby the assessee is having 1/4 th ITA No.1304/AHD/2017 (A.Y 08-09) Rekhaben C Rameshbhai Patel 3 share out of 1/8 th share of their predecessor thereby the assessee’s share is only 1/32 nd , in the property sold during the relevant financial year under consideration. The sale value as per Sale Deed is Rs.10,21,977/-. As per sale deed the assessee received Rs. 11,000/-, vide cheque No. 921901 on 21.05.2007 and Rs. 20,935/- vide cheque No. 730502 on 10.03.2008. Such consideration is exactly 1/32th share of total sale consideration of registered sale deed of Rs.10,21,977/-. The share of each and everyone as per their respective shareholding is shown on the sale deed. The Assessing Officer treated the share of assessee as 1/13 as the sale deed was executed by thirteen persons (13). However, during the first appellate stage before ld CIT(A), the assessing officer in his remand report dated 17.03.2017, in case of Smt. Shardaben C. Patel, who was having 1/8 th share has accepted such fact. The contents of such remand report is duly recorded in para-9 of the ld CIT(A). Further assessee has filed a family chart showing respective right of all the co-owners. The sale deed was executed by 13 persons, therefore, the Assessing Officer instead of appreciating the fact with regard to respective share ITA No.1304/AHD/2017 (A.Y 08-09) Rekhaben C Rameshbhai Patel 4 considered the parties as own by 13 shares. Late Dayalbhai Patel was the original owner who left behind eight legal heirs which is mentioned in the family chronologist filed at page-6 of the paper book. The assessee is one of the legal heirs of late Chandubhai Dayalbhai Patel who was having 1/8 th share. Thus the assessee and her four siblings Sharda Chandubhai Patel, Haresh Chandubhai Patel and Ajay Chandubhai Patel having 1/4 th share each thereby assessee became owner of 32%. The lower authorities failed to appreciate such fact. 3. The Ld. AR for the assessee further submits that though assessee has applied for Vivad Se Vishwas Scheme-2020 and Forms No.1 & 2 were issued by Ld. PCIT concerned in adopting 1/8 th share of assessee instead of 1/32th share and such mistake has not been rectified despite repeated representation and persuasion by assessee. The Ld. AR for the assessee submits that while opting Vivad Se Vishwas Scheme, the assessee paid due tax as per her share. The Ld. AR for the assessee submits that the Assessing Officer may be directed to give set off of tax paid by assessee while granting the order effect. ITA No.1304/AHD/2017 (A.Y 08-09) Rekhaben C Rameshbhai Patel 5 4. On the other hand, Ld. Senior Departmental Representative (Ld. Sr-DR) for the Revenue after going through the contents of remand report dated 31.01.2017 as recorded in para-9.2 of the order of Ld. CIT(A). and copy of sale deed and family chart that suitable direction may be given to the Assessing Officer to consider the share of assessee as 1/32 share in the property joint hold by predecessor in interest of assessee. 5. I have heard the submissions of ld. AR for the assessee and ld. Sr-DR for the Revenue and perused the materials available on record and the orders of lower authorities carefully. I find that Assessing Officer has not considered the ratio of consideration shown in the sale deed itself. I further find that before Ld. CIT(A), the assessee again specifically contended that she has 1/32 share instead of 1/13 share. I find that Ld. CIT(A) while considering the case of all co-owners treated the case of Shardaben D. Patel, who was having 1/8 th share. The Ld. CIT(A) also failed to appreciate that assessee and her other siblings are the legal heirs of late Chandubhai Dayalbhai Patel, who was having 1/8 th share in the land, thereby the assessee and her ITA No.1304/AHD/2017 (A.Y 08-09) Rekhaben C Rameshbhai Patel 6 siblings became the owner of 1/32 share only. The family chart of the assessee showing her share is scanned below. 6. Thus, on the basis of the limited submissions of both the parties, the appeal of assessee decided with limited direction that share of assessee is only 1/32 in land bearing Revenue Survey No.116/2/b, Block No.161 village Palanpor Taluka Choryasi, District Surat. I direct the Assessing Officer to consider the share of assessee of assessee as 1/32 and to grant the set off of tax already paid by assessee opting Vivad Se Vishwas Scheme. This ground of assessee’s appeal is allowed in terms of above direction. ITA No.1304/AHD/2017 (A.Y 08-09) Rekhaben C Rameshbhai Patel 7 7. As only limited prayer was made before me, thus, all other issued raised in the appeal are treated as not pressed. 8. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 24/03/2023. Sd/- (PAWAN SINGH) [Ɋाियक सद˟ JUDICIAL MEMBER] सूरत /Surat, Dated: 24/03/2023 Dkp. Out Sourcing Sr.P.S Copy to: 1. Appellant- 2. Respondent- 3. CIT(A)- 4. CIT 5. DR 6. Guard File True copy/ By order // True Copy // Senior Private Secretary/ Assistant Registrar, ITAT, Surat