GURDASMAL B CHAWLA, MUMBAI V. ACIT CEN CIR 10, MUMBAI

ITA 1372/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3463 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 29-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Additional evidence
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G , BENCH, MUMBAI , BEFORE SHRI R.K.GUPTA, JM & SHRI N.K.BILLAIYA , AM ITA NO . 1372 / MUM/ 20 1 2 ( ASSESSMENT YEAR : 200 8 - 0 9 ) SHRI GURDASMAL B. CHAWLA, 87, JEEVAN NIWAS, 5 TH FLOOR, WORLI SEAL FACE, WORLI, MUMBAI - 25 VS. ACIT, CENT.CIR - 10, MUMBAI PAN/GIR NO. : A ABPC 1547 P ( APPEL LANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. SATISH MODY /REVENUE BY : MR. D.K.SINHA DATE OF HEARING : 1 2 TH JUNE, 201 3 DATE OF PRONOUNCEMENT : 19 TH JUNE, 2013 O R D E R PER SHRI R.K.GUPTA, JM : TH IS APPEAL HA S BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 3 - 2 - 2012 PASSED BY THE LEANED CIT(A) - 37 , MUMBAI RELATING TO THE ASSESSMENT YEAR 200 8 - 09 . 2 . GROUNDS NO. 1 & 4 WERE NOT PRESSED, THEREFORE, THEY ARE DI SMISSED AS NOT PRESSED. 3 . GROUNDS NO. 2 & 3 RELATE TO REJECTING THE ASSESSEES CLAIM TO ADMIT ADDITIONAL EVIDENCE IN RESPECT OF THE PURCHASE DATE OF PUNE PROPERTY, BEI NG 3 - 4 - 1993. THERE IS ONE MORE GROUND I.E. GROUND NO. 5, WHICH IS AGAINST CONFIRMING THE ADDITION OF RS. 1,27,045/ - . SIMILAR FACTS ITA NO . 1372 /201 2 2 ARE INVOLVED IN ALL THESE GROUNDS, THEREFORE, THEY ARE DISPOSED OF TOGETHER. 4 . THE FACTS IN THIS REGARD ARE THAT THE ASSESSEE WAS OWNING THE PROPERTY NAMELY FLAT AT BODARAM BHAVAN, ON PLOT BEARING ON 16 C.A. SURVEY NO. 984 OF DADAR NAIGOAN DIVISION OF THE SCHEME NO. 57 OF SEWREE WADALA ESTATE. THIS FLAT WAS PURCHASED IN OCTOBER 1958 FOR RS. 17,489/ - . THE ASSESSEE HAD RETURNED THE C APITAL GAIN OF RS. 60,03,636/ - . HOWEVER, THE AO APPLIED SECTION 50C AS THE STAMP DUTY VALUATION SHOWED THE PRICE OF RS. 61,72,450/ - . ACCORDINGLY, DIFFERENT WAS TAKEN BY THE ASSESSEE. THERE WAS ANOTHER PROPERTY AT EAST GALLERIA STREET, PUNE. THE AO AS AGAINST THE SALE PRICE AS PER THE DOCUMENT OF RS. 16 LAKHS REWORKED THE CAPITAL GAIN AT RS. 10 LAKHS AS SHORT TERM CAPITAL GAIN ON THE BASIS OF STAMP DUTY VALUATION. DURING THE ASSESSMENT PROCEEDING, IT WAS CONTENDED THAT THE PROPERTY WAS OWNED BY THE ASSESSEE EAR LIER, HOWEVER, THE REGISTRATION OF THE PROPERTY TOOK SOMETIME IN THE YEAR OF 2004, WHICH WAS SOLD IN THE YEAR OF 2007. THE AO WAS NOT SATISFIED WITH THE CONTENTION THAT THE PROPERTY WAS PURCHASED LONG BACK AND LONGER TERM CAPITAL GAIN SHOWN BY THE ASSESSEE IS TO BE ACCEPTED. THE AO WAS OF THE VIEW THAT THE PROPERTY GOT REGISTERED IN THE YEAR 2004, WHICH WAS SOLD IN 2007, THEREFORE, THE SHORT TERM CAPITAL GAIN HAS TO BE LEVIED. ACCORDINGLY, HE RECOMPUTED THE INCOME OF THE ASSESSEE. 5 . BEFORE THE CIT(A) , CE RTAIN ADDITION AL EVIDENCES WERE FILED, WHICH WERE NOT ACCEPTED BY THE CIT(A) BY GIVING HIS FINDING IN PARA 4.1. THE ITA NO . 1372 /201 2 3 CIT(A) NOTED THAT AMPLE OPPORTUNITY WAS GIVEN BY THE AO AND NO REASON HAS BEEN EXPLAINED AS TO WHY THESE ADDITIONAL EVIDENCES WERE NOT PRODU CED BEFORE THE AO. ACCORDINGLY, HE REJECTED THE ADDITIONAL EVIDENCES AND CONFIRMED THE ACTION OF THE AO. 6 . AFTER HEARING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE AO TO EXAMINE AFRESH THE ISSUES INVOLVED IN GROUNDS NO. 2, 3 & 5. WE ARE NOT SATISFIED WITH THE OBSERVATIONS OF CIT(A) THAT NO REASON HAS BEEN EXPLAINED AS TO WHY THESE ADDITIONAL EVIDENCES WERE NOT PRODUCED BEFORE THE AO. IF BY ANY REASON THESE DOCUMENTS COULD NOT BE PRODUCED BUT TO MEET THE END OF JUSTICE, LEARNED CIT(A) SHOULD HAVE CONSIDERED THE SAME. IT IS ALSO A MATTER OF FACT THAT THE REGISTRATION OF PROPERTY IS A PROCEDURE AND IF THE ASSESSEE PROVES THAT THE PROPERTY WAS PURCHASED LONG BACK THEN THE PURCHASE DATE SHOULD HAVE BEEN CONSIDERED BY THE AO. TECHNICALITY SHOULD NOT COME INTO THE WAY OF SUBSTANTIAL JUSTICE. 7 . IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF THE AO TO PASS A FRESH ORD ER AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD AND AFTER CONSIDERING ALL THE MATERIAL FACTS AND EVIDENCES. WE ORDER ACCORDINGLY. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO . 1372 /201 2 4 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19TH DAY OF JUNE 2013 SD/ - ( ) ( N.K.BILLAIY A ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 19/06/ 2013 . /PKM , PS COPY OF T HE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI