SMT SUDHA R. RANA, Nagpur V. CIT ( CENTRAL), Nagpur

ITA 135/NAG/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3170 (ITAT-NAGPUR)
• Duration Of Justice: 6 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 14-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 23-04-2012
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Sale consideration of property below Jantri Value; Set aside
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO.135/NAG./2012 (ASSESSMENT YEAR : 200809 ) SMT. SUDHA R. RANA FLAT NO.T2 & T3, ARC NEST MOHAN NAGAR, NAGPUR 440 001 PAN AFMPR4927G . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE1(1), AAYAKAR BHAWAN CIVIL LINES, NAGPUR 440 001 . RESPONDENT ASSESSEE BY : SHRI MANOJ MORYANI REVENUE BY : SHRI A.R. NINAWE DATE OF HEARING 23.03.2017 DATE OF ORDER 29.03 .2017 O R D E R PER SHAMIM YAHYA, A.M. THE PRESENT APPEAL PREFERRED BY THE ASSESSEE IS DIR ECTED AGAINST IMPUGNED ORDER DATED 16 TH JANUARY 2012, PASSED BY THE LEARNED COMMISSIONER (APPEALS)I, NAGPUR, FOR ASSESSMENT YE AR 200809. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED B ELOW: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN TAKING THE VALUE O F ` 239.53 LAKH WHICH IS THE VALUE FOR THE PURPOSE OF STAMP DUTY, A S THE FULL VALUE OF CONSIDERATION RECEIVED FOR THE PURPOSE OF CAPITA L GAINS INSTEAD OF ACTUAL SALE CONSIDERATION OF ` 140.00 LAKH. 2. THE LEARNED CIT(A) , NAGPUR ERRED IN NOT ADMITTING THE 2 SMT. SUDHA R. RANA ADDITIONAL GROUND WHICH READS AS UNDER IN SPITE OF THE FACTS THAT IT'S A LEGAL GROUND. 3. 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASS ESSING OFFICER ERRED IN TAKING THE VALUE OF RS.239.53 LACS WHICH IS THE VALUE FOR THE PURPOSE OF STAMP DUTY, AS THE FULL VA LUE OF CONSIDERATION RECEIVED FOR THE PURPOSE OF CAPITAL G AINS INSTEAD OF ACTUAL SALE CONSIDERATION OF RS.140.00 LACS.' 4. THE LEARNED CIT(A) , NAGPUR ERRED IN CONFIRMING THE ADDITION OF RS.3.40 LACS RECEIVED FROM SHRI. WASUDEO S. AGRA WAL AND SMT. POOJA AGRAWAL. 5. THE LEARNED CIT(A) , NAGPUR ERRED IN CONFIRMING THE ADDITION OF RS.41.00 LACS ON ACCOUNT OF ADVANCE RECEIVED FRO M M/S. R. V. DEVELOPERS AGAINST SALE OF LAND. 6. THE LEARNED CIT(A) , NAGPUR, ERRED IN CONFIRMING THE ADDITION OF RS.9.00 LACS ALLEGED TO HAVE RECEIVED FROM M/S. SWASTIK HOUSING DEVELOPERS & BUILDERS. 7. THE LEARNED CIT(A) , NAGPUR, ERRED IN NOT ALLOWING EXPENDITURE OF RS.1.00 LAC INCURRED ON BOUNDARY WALL AS COST OF IMPROVEMENT. 8. THE LEARNED CIT(A) , NAGPUR, ERRED IN NOT ALLOWING LEGAL EXPENSES OF RS.50,000/- INCURRED TOWARDS THE LITIGA TION AGAINST CLAIM FOR OWNERSHIP OF PROPERTY AS COST OF IMPROVEM ENT. 9. THE LEARNED CIT(A) , ERRED IN NOT CONSIDERING THE WRONG LEVY OF INTEREST U/SEC. 234A, 234B & 234C. 10. THE APPELLANT SEEKS PERMISSION TO ADD ANY OTHER GRO UND OF APPEAL OR AMEND OR ALTER THE AFORESAID GROUND OF AP PEAL. 2. AT THE OUTSET, IN THE PRESENT CASE, WE NOTE THAT TH E ASSESSEE IS AGGRIEVED THAT THE ASSESSING OFFICER HAS ERRED IN T AKING THE SALE VALUE OF ` 239.53 LAKH WHICH IS THE VALUE FOR THE PURPOSE OF STAMP DUTY AS THE VALUE OF CONSIDERATION RECEIVED FOR THE PURPOSE OF CAPITAL GAINS INSTEAD OF ACTUAL SALE CONSIDERATION OF ` 140 LAKH. 3 SMT. SUDHA R. RANA 3. ASSESSEES CONTENTION IS THAT THE STAMP VALUE DOES NOT REFLECT THE TRUE VALUE AND IT WAS INCUMBENT UPON THE AUTHORITIE S BELOW TO SEND THE MATTER FOR VALUATION TO THE DEPARTMENTS VALUER . IN THIS REGARD, THE LEARNED COUNSEL FOR ASSESSEE HAS PLACED RELIANCE UP ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN SUNIL KUMAR AGARWAL V/S CIT, [2015] 372 ITR 83 (CAL.). REFERRING TO THE ABOVE CA SE LAW, THE LEARNED COUNSEL FOR ASSESSEE PLEADED THAT IN ACCORDANCE WIT H THE ABOVE CASE LAW, IN THIS CASE ALSO, THE ASSESSING OFFICER SHOUL D HAVE SENT THE MATTER TO THE DVO FOR VALUATION. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE IN T HIS CASE IS AGGRIEVED THAT VALUATION AS PER STAMP VALUATION AUTHORITY HAS BEEN TAKEN AS A SALE CONSIDERATION WITHOUT REFERRING TO THE MATTER TO THE DVO AS THE MARKET VALUE REFLECTED BY THE STAMP VALUATION WAS N OT FAIR. WE FIND THAT THE PROPOSITION HERE IS THAT IN ORDER TO AVOID MISCARRIAGE OF JUSTICE, THE ASSESSING OFFICER SHOULD HAVE REFERRED THE MATTER TO THE DVO. THIS PROPOSITION GETS SUPPORTS FROM THE CASE L AW OF THE HONBLE CALCUTTA HIGH COURT IN SUNIL KUMAR AGARWAL (SUPRA). WE MAY REFER TO THE ABOVE CASE LAW (HEAD NOTES ONLY) AS UNDER: CAPITAL GAINSFULL VALUE OF CONSIDERATIONSPECIAL PROVISIONS ASSESSEE HAD SOLD A PIECE OF LAND BY TWO SEVERAL DE EDS OF CONVEYANCE AND INVESTED THE SALE PROCEEDS IN THE BO NDS AND ON THAT BASIS HE CLAIMED DEDUCTION U/S 54ECDISTRICT S UB REGISTRAR HAD ASSESSED MARKET VALUE OF THE LAND AND ON BASIS OF VALUATION 4 SMT. SUDHA R. RANA MADE BY THE DISTRICT SUB REGISTRAR A.O. HAD COMPUTE D LONG TERM CAPITAL GAINCIT(A) HAD UPHELD ORDER OF AOTRIBUNAL HAD ALSO DISMISSED ASSESSEE'S APPEALASSESSEE HAD CLAIMED TH AT PRICE OFFERED BY THE PURCHASER WAS THE HIGHEST PREVAILING PRICE IN THE MARKET AND VALUATION MADE BY THE DISTRICT SUB REGIS TRAR WAS FOR THE PURPOSE OF STAMP DUTY, THEREFORE, WAS NOT THE P REVAILING PRICE OF THE LAND IN QUESTION. ASSESSEE HAD ALSO CLAIMED THAT VALUATION MADE BY THE DISTRICT SUB REGISTRAR FOR THE PURPOSE OF STAMP DUTY WAS FAR IN EXCESS THAN THE MARKET VALUE OF THE PROP ERTY. HELD, VALUATION BY DEPARTMENTAL VALUATION OFFICER, CONTEMPLATED U/S 5 WAS REQUIRED TO AVOID MISCARRIAGE OF JUSTICE LEGISLATURE DID NOT INTEND THAT CAPITAL GAIN SHOULD BE FIXED MERELY ON BASIS OF VALUATION TO BE MADE BY DISTRICT SUB REGISTRAR FOR PURPOSE OF STAMP DUTYLEGISLATURE HAD TAKEN CARE TO PROVIDE ADEQUATE MACHINERY TO GIVE FAIR TREATMENT TO CITIZEN/TAXPAYERNO INFERENC E COULD BE MADE AS AGAINST THE ASSESSEE THAT HE HAD ACCEPTED T HAT THE PRICE FIXED BY THE DISTRICT SUB REGISTRAR WAS THE FAIR MA RKET VALUE OF THE PROPERTYOPTION OUGHT TO BE GIVEN TO ASSESSEE TO HA VE VALUATION MADE BY DEPARTMENTAL VALUATION OFFICER CONTEMPLATED UNDER SECTION 150CA10, DISCHARGING A QUASI JUDICIAL FUNCTION, HA D THE BOUNDEN DUTY TO ACT FAIRLY AND TO GIVE A FAIR TREATMENT BY GIVING HIM AN OPTION TO FOLLOW THE COURSE PROVIDED BY LAWORDER I NCLUDING ORDERS PASSED BY CIT(A) AND AO WERE ALL SET ASIDE MATTER WAS REMANDED TO AOAO WAS DIRECTED TO REFER MATTER TO DEPARTMEN TAL VALUATION OFFICER IN ACCORDANCE WITH LAW AND AFTER SUCH VALUA TION WAS MADE, ASSESSMENT WAS TO BE MADE DENOVO IN ACCORDANCE WITH LAW ASSESSEE'S APPEAL WAS ALLOWED. 4. FOLLOWING THE ABOVE PRECEDENCE, WE HOLD THAT THE VA LUATION IN THIS CASE ALSO DESERVES TO BE SENT FOR VALUATION BY THE DVO, HENCE, WE RESTORE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO DO THE NEEDFUL AS ABOVE. 5. THE OTHER ISSUES RAISED IN THIS APPEAL REVOLVE AROU ND THE MAIN ISSUE AS ABOVE AND THEY RELATE TO THE EXPENDITURE R EGARDING COST OF IMPROVEMENT, TREATMENT OF ADVANCE, ETC. IN OUR CONS IDERED OPINION, WHEN THE MAIN ISSUE IN DISPUTE IS RESTORED TO THE F ILE OF THE ASSESSING 5 SMT. SUDHA R. RANA OFFICER, IN ALL FAIRNESS, OTHER ISSUES MAY ALSO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL CONSIDER AFRESH AFTER ADJUDICATING THE FIRST ISSUE AS MENTIONED ABOVE. NE EDLESS TO ADD, THE ASSESSING OFFICER SHALL PROVIDE ADEQUATE OPPORTUNIT Y OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.03.2017 SD/ - RAM LAL NEGI JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER NAGPUR, DATED: 29.03.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, NAGPUR