Shri Nagendra Singh Legal Heir of Late Smt. RatanKanwar, Bikaner V. ITO, Ward-2(1), Bikaner

ITA 142/JODH/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1960 (ITAT-JODHPUR)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 16-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C BADHOK
• Assessee Lawyers: R N JANGID
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Application of stay; Valuation report; Set aside; Capital Gains
• Section: 50C; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, JODHPUR BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO. 142/JODH/2019 ASSESSMENT YEAR: 2012-13 SHRI NAGENDRA SINGH VS. THE ITO LEGAL HEIR OF LATE WARD-2(1) SMT. RATAN KANWAR BIKANER W/O LATE THAKUR MANGAL SINGH SANKHU HOUSE, KUCHILPURA, BIKANER & STAY APPLICATION NO. 09/JODH/2019 (IN ITA NO. 142/JODH/2019) ASSESSMENT YEAR: 2012-13 SHRI NAGENDRA SINGH VS. THE ITO LEGAL HEIR OF LATE WARD-2(1) SMT. RATAN KANWAR BIKANER W/O LATE THAKUR MANGAL SINGH SANKHU HOUSE, KUCHILPURA, BIKANER PAN NO. CEWPK6430C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.N. JANGID DEPARTMENT BY: SHRI K.C. BADHOK, CITDR DATE OF HEARING : 27/11/2019 DATE OF PRONOUNCEMENT : 27/11/2019 O R D E R PER N.K. SAINI, VICE PRESIDENT : 2 THIS IS AN APPEAL BY THE LEGAL HEIR OF THE DECEASED ASSE SSEE AND IS DIRECTED AGAINST THE ORDER DT. 18/03/2019 OF THE LD. CIT(A), B IKANER. AN APPLICATION FOR STAY OF THE OUTSTANDING DEMAND IS ALSO MOVED. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE ID. CIT(A) HAS ERRED IN SUSTAINING ADDITION OF RS. 12,23,53,290/- UNDER THE HEAD LONG TERM CAPITAL GAINS INVOKING PROVISION OF SECTION 50C OF IT. ACT, 1961 IGNORING VITAL FACTS OF THE PROPERTY SOLD AS FOLLOWS:- (I) THE VALUATION ADOPTED BY THE REGISTERING AUTHOR ITY WAS IN DISPUTE BEFORE THE RAJASTHAN KAR BOARD (THE APPELLATE AUTHORITY) AND SAID APPEAL (IN 2 ND ROUND) IS STILL PENDING. (II) IN THE 1 ST ROUND OF APPEAL RAJASTHAN KAR BOARD AJMER VIDE ORD ER DATED 31/03/2014 HAS DIRECTED TO MAKE VALUATION OF PROPERTY TRANSACTED B Y THE ASSESSEE ON RENT CAPITALISATION METHOD. (III) THE REGISTERING AUTHORITY DID NOT FOLLOW THE ORDER OF KAR BOARD AND RE DETERMINED THE VALUE AT THE SAME FIGURE VIDE ORDER DATED 28/06/201 7, AS ORIGINALLY ADOPTED. (IV) THE ASSESSEE HAS FURNISHED A VALUATION REPORT PREPARED ON THE BASIS OF RENT CAPITALISATION METHOD. (IV) THE PROPERTY TRANSACTED IS IN ADVERSE POSSESSI ON OF SEVERAL TENANTS WHO ARE IN THE 3RD GENERATION OF ORIGINAL TENANT AND THEREFORE IF COUL D NOT BE SOLD AS DLC RATE NOTIFIED BY THE STATE GOVERNMENT. 2. THE ID. CIT (A) OUGHT TO HAVE ISSUED CLEAR DIREC TION TO DELETE INTEREST CHARGED U/S 234B OF LT. ACT 1961 INSTEAD OF ISSUING VAGUE DIRECTION TO RECA LCULATE INTEREST U/S 234B WHEREAS NO SUCH INTEREST IS CHARGEABLE. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NO. 2 THEREFORE THE SAME IS DISMISSED AS NOT PRE SSED. 4. VIDE GROUND NO. 1 THE ONLY GRIEVANCE OF THE ASSESSE E RELATES TO THE SUSTENANCE OF ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LONG TERM CAPITAL GAIN (LTCG) BY INVOKING THE PROVISIONS OF SECTION 50C OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). 5. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THIS ISSUE WAS EARLIER DECIDED BY THIS BENCH OF THE TR IBUNAL VIDE ORDER DATED. 04/09/2015 IN ITA NO. 532/JODH/2014 FOR THE A.Y. 2012-13 WHEREIN C ERTAIN SPECIFIC DIRECTIONS WERE GIVEN TO THE ASSESSING OFFICER FOR ADOPTING THE VALUATI ON OF THE PROPERTY. LD. COUNSEL FOR 3 THE ASSESSEE POINTED OUT THAT EARLIER THE ASSESSEE APP ROACHED TO RAJASTHAN KAR BOARD AGAINST THE VALUATION ADOPTED BY THE COLLECTOR AND THE RAJASTHAN KAR BOARD VIDE ORDER DT. 31/03/2014 SET ASIDE THE EARLIER VALUATION AND RESTORED THE MATTER TO THE FILE OF THE COLLECTOR WITH CERTAIN DIRECTIONS. IT WAS ALSO POINT ED OUT THAT SUB REGISTRAR AGAIN ADOPTED THE SAME VALUATION WHICH WAS EARLIER ADOPTED. I T WAS STATED THAT THE LEGAL HEIR OF THE DECEASED ASSESSEE AGAIN APPROACHED TO THE R AJASTHAN KAR BOARD WHEREIN THE MATTER IS STILL PENDING. HE DREW OUR ATTENTION TOW ARDS PAGE NO. 26 TO 32 OF THE ASSESSEE'S COMPILATION WHICH ARE THE COPIES OF THE ORD ER SHEET ENTRIES OF RAJASTHAN KAR BOARD, AJMER IN APPEAL NO. 1060 / 2017 FILED BY THE L EGAL HEIR OF THE ASSESSEE. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MATT ER IS STILL PENDING FOR DETERMINATION OF VALUATION WHICH WAS DIRECTED TO BE ADO PTED TO THE ASSESSING OFFICER VIDE ORDER DT. 04/09/2015 IN ITA NO. 532/JODH/2014 BY THIS BENCH OF THE TRIBUNAL. HE REQUESTED TO RESTORE THE MATTER TO THE FILE OF THE AS SESSING OFFICER. 7. THE LD. SR. DR ALTHOUGH SUPPORTED THE ORDERS OF THE A UTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THAT THE PRESENT ISSUE WAS A SUBJECT MATTER OF THE ASSESSEE'S APPEAL BEFORE THIS BENCH OF THE TRIBUNAL IN ITA NO. 532/JODH/2014 WHEREIN VIDE ORDER DATED. 04/09/2015 THE RELEVANT DIRECTION WERE GIVEN IN PARA 5 TO THE ASSESSING OFFICER WHICH READ AS UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). WE FIND T HAT THE ADDITION WAS MADE IN THIS CASE BY INVOKING THE PROVISION OF SECTION 50C OF TH E ACT AND THE AREA RATE AS PER THE SUB-REGISTRAR HAS BEEN ADOPTED AS THE SALE CONSIDER ATION OF THE PROPERTY IN QUESTION. HOWEVER, THE ORDER OF THE SUB-REGISTRAR ITSELF HAS BEEN SET ASIDE BY THE RAJASTHAN KAR BOARD, AJMER VIDE THEIR ORDER DATED 31.03.2014 IN R EVIEW APPLICATION NO.1405/2012/JAIPUR AND 1949/2012/JAIPUR AND HAS BE EN RESTORED TO THE FILE OF THE COLLECTOR WITH CERTAIN DIRECTIONS WHICH INCLUDES HE ARING TO THE PURCHASER AND SELLER OF THE PROPERTY IN QUESTION AND CERTAIN APPLICABLE JUD ICIAL NOTIFICATIONS ETC. AND TO REASSESS THE MARKET VALUE OF THE PROPERTY IN QUESTI ON AND TO PASS THE ORDER AFRESH IN ACCORDANCE WITH LAW. IN THESE FACTS, WE ARE OF THE VIEW THAT THERE REMAINS NO BASIS FOR ADOPTING THE VALUE OF THE PROPERTY AS PER THE ORDER OF THE SUB-REGISTRAR BY INVOKING THE PROVISION OF SECTION 50C OF THE ACT AND, ACCORDINGL Y, THE ORDERS OF AUTHORITIES BELOW ARE SET ASIDE AND RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO PASS A DE NOVO ASSESSMENT ORDER IN ACCORDANCE WITH LAW IN THE LIGHT OF THE DECISION OF THE 4 COLLECTOR AS PER THE DIRECTIONS OF THE RAJASTHAN KA R BOARD DATED 31.03.2014 AND AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE . WE DIRECT ACCORDINGLY. FROM THE AFORESAID DIRECTION IT IS CLEAR THAT THE ASS ESSING OFFICER WAS ASKED TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW IN THE LIGHT OF THE DECISION OF COLLECTOR AS PER THE DIRECTION OF THE RAJASTHAN KAR BOARD AFTER ALLOWING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE THE MATTER IS STILL PENDING FOR VALUATION BEFORE THE RAJASTHAN KAR BOARD IN APPEAL NO. 1060 OF 2017, WE THEREFORE DEEM I T APPROPRIATE TO RESTORE THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDE D IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. SINCE THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED , THE STAY APPLICATION IN S.A. NO. 09/JODH/2019 NOW BECOMES INFRUCTUOUS, SO THE SAME IS DISMISSED. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES WHEREAS THE STAY APPLICATION IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 27/11/2019 ) SD/- SD/- (SANDEEP GOSAIN) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 27/11/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR