Kailashchand K. Bhartiya, L/h. of Late Smt. Dwarkabai Kanhiyalal Bhartiya, Jalna V. Income -tax Officer, Jalna

ITA 1428/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1716 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 05-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHABANA PARVEEN
• Keywords: Additional evidence; Fair market value; Reassessment proceedings
• Section: 148; 2; 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 1427 /PUN/201 7 / ASSESSMENT YEAR : 20 1 0 - 11 SHRI KAILASHCHAND KANHIYALAL BHARTIYA, PROP. SADGURU OIL INDUSTRIES, NAYA BAZAR, SHOLA CHOWK, JALNA 431203 PAN : AGYPB4397D ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 1, JALNA / RESPONDENT . / ITA NO .1428/PUN/2017 / ASSESSMENT YEAR : 2010 - 11 LATE SMT. DWARKABAI KANHIYALAL BHARTIYA, THROUGH L/H KAILASHCHAND K. BARTIYA NAYA BAZAR, SHOLA CHOWK, JALNA 431203 PAN : CDKPB4299K ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 1 , JALNA / RESPONDENT ASSESSEE BY : SHRI S.N. PURANIK REVENUE BY : SMT. SHABANA PARVEEN / DATE OF HEARING : 13 - 0 3 - 2019 / DATE OF PRONOUNCEMENT : 18 - 0 3 - 2019 2 ITA NO S. 1427 & 1428/PUN/2017 / ORDER PER VIKAS AWASTHY, JM : TH ESE TWO APPEALS BY TWO DIFFERENT ASSESSEES ARE TAKEN UP TOGETHER FOR ADJUDICATION AS THE ADDITION IN BOTH THE APPEALS ARE ARISING FROM SAME TRANSACTION OF SALE OF PROPERTY AND GROUNDS RAISED IN BOTH THE APPEALS ARE IDENTICAL. 2. ITA NO. 1427/PUN/2017 IS DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) - 1, AURANGABAD DATED 27 - 03 - 2017 FOR THE ASSESSMENT YEAR 20 1 0 - 11. IN ITA NO. 1428/PUN/2017 THE ASSESSEE HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 1, AURANGABAD DATED 29 - 03 - 2017 FOR THE ASSESSMENT YEAR 2010 - 11. THE ASSESSEE IN ITA NO. 1428 /PUN/2017 IS THE MOTHER OF SHRI KAILASHCHAND KANHIYALAL BHARTIYA (I.E. THE APPELLANT/ASSESSEE IN ITA NO. 1427/PUN/2017). AFTER THE DEMISE OF SMT. DWARKABAI KANHIYALAL BHARTIYA THE APPEAL IS REPRESENT BY LEGAL HEIR SHRI KAILASHCHAND KANHIYALAL BHARTIYA. 3. THE FACTS COMMON TO BOTH THE APPEALS ARE : THE ASSESSEES WERE CO - OWNERS OF LAND ALONG WITH TWO OTHER RELATIVES NAMELY SHRI RAJENDRA KANHAYALAL BHARTIYA AND SANJAY KAILASHCHANDRA BHARTIYA. THE LAND COMPRISING IN SURVEY NO. 176 AND 169 WITHIN THE MUNICI PAL AREA OF DISTRICT JALNA ADMEASURING 3 H 75 R, AND 1 H 20 R WERE SOLD BY ALL THE CO - OWNERS TO SHRI PANNALAL SHIVRATANJI BAGDIYA, SHRI MANISH PANNALAL BAGDIYA, SHRI ADITYA PANNALAL BAGDIYA AND M/S. MULCHAND BHAGWANDAS & COMPANY VIDE REGISTERED SALE DEEDS BEARING NO. 2946 AND 2947 BOTH DATED 08 - 10 - 2009 FOR A TOTAL CONSIDERATION OF RS.2,22,00,000/ - . THE PRESENT ASSESSEES FAILED TO DISCLOSE CAPITAL GAIN FROM THE SALE OF PROPERTY IN THEIR 3 ITA NO S. 1427 & 1428/PUN/2017 RESPECTIVE RETURN OF INCOME, HENCE, NOTICE U/S. 148 O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WERE ISSUE TO THE ASSESSEE S . IN RESPONSE TO THE NOTICE U/S. 148 THE ASSESSEES REQUESTED THE ASSESSING OFFICER TO CONSIDER THE RETURN ALREADY FILED AS RETURN OF INCOME IN RESPONSE TO NOTICE U/S. 148 OF THE ACT. THE ASSESSEES HAD CLAIMED DEDUCTION U/S. 54F OF THE ACT IN RESPECT OF CAPITAL GAIN ARISING FROM SALE OF PROPERTY. THE ASSESSING OFFICER IN REASSESSMENT PROCEEDINGS DISALLOWED ASSESSEE S CLAIM OF DEDUCTION U/S. 54F AND ALSO RECOMPUTED CAPITAL GAIN. AGGRIEVED AGAINST THE ADDITION MADE BY ASSESSING OFFICER IN REASSESSMENT PROCEEDINGS , THE ASSESSEE S CARRIED THE MATTER IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEALS OF BOTH THE ASSESSEES BY SEPARATE IMPUGNED ORDERS. NOW, BOTH THE ASSESSEES ARE IN APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE IN ITA NO. 1427/PUN/2017 HAS RAISED FOLLOWING GROUNDS ASSAILING THE FINDINGS OF COMMISSI ONER OF INCOME TAX (APPEALS) : 1. HONOURABLE COMMISSIONER APPEALS HAS ERRED IN NOT ADOPTING THE FMV AS ON 01/04/1981 AS PER REGD. VALUERS REPORT, FOR COMPUTATION OF CAPITAL GAIN, AND SUBSTITUTING HIS OWN, APPELLANT PRAYS FOR FOLLOWING THE VALUE AS PER REGD. VALUERS REPORT AS CLAIMED BY THE APPELLANT. 2. APPELLANT PRAYS FOR ADOPTING JUST AND EQU ITABLE FMV AS OF 01/04/1981 FOR COMPUTING CAPITAL GAIN. 3. APPELLANT PRAYS FOR CANCELLATION/ REDUCTION OF INTEREST CHARGED U/S. 234B. 4. APPELLANT PRAYS TO ADD, ALTER, AMEND, MODIFY, SUBMIT ADDITIONAL GROUNDS, ADDITIONAL EVIDENCES AND/ OR WITHDRAW THE G ROUND/ S AS OCCASION MAY DEMAND, DURING THE PENDENCY OF THE PROCEEDINGS. IDENTICAL GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN ITA NO. 1428/PUN/2017. 4. SHRI S.N. PURANIK APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT THE ISSUE R AISED IN PRESENT APPEALS IS IDENTICAL TO THE ONE 4 ITA NO S. 1427 & 1428/PUN/2017 ADJUDICATED BY THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF OTHER TWO CO - OWNERS OF THE SAME LAND. THE CO - ORDINATE BENCH OF TRIBUNAL IN ITA NO. 1424/PUN/2017 IN THE CASE OF SHRI RAJENDRA KANHIYALAL BHART IYA VS. INCOME TAX OFFICER AND IN ITA NO. 1425/PUN/2017 IN THE CASE OF SHRI SANJAY KAILASHCHAND BHARTIYA VS. INCOME TAX OFFICER BOTH DECIDED BY THE COMMON ORDER DATED 28 - 08 - 2018 HAVE ALLOWED THEIR APPEALS. 5. SMT. SHABANA PARVEEN REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDERS. HOWEVER, THE LD. DR FAIRLY ADMITTED THAT THE ISSUE RAISED IN PRESENT SET OF APPEALS IS IDENTICAL TO THE ONE ADJUDICATED BY THE TRIBUNAL IN THE CASE OF OTHER TWO CO - O WNERS OF THE LAND WHICH IS SUBJECT MATTER OF DISPUTE. 6. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. WE FIND THAT THE ISSUE IN PRESENT SET OF APPEALS RELATING TO FAIR MARKET VALUE OF THE LAND AS ON 01 - 04 - 1981 FOR COMPUTING CAPITAL GAINS AND ALSO THE ASSESSEE S ELIGIBILITY FOR CLAIMING DEDUCTION U/S. 54F OF THE ACT IS IDENTICAL TO THE ONE ADJUDICATED BY TRIBUNAL IN THE CASE OF CO - OWNERS . THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF CO - OWNERS OF THE LAND HAVE DECIDED THE ISSUE WITH RES PECT TO DETERMINATION OF FAIR MARKET VALUE AS ON 01 - 04 - 1981 BY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. PUJA PRINTS REPORTED AS 360 ITR 697. THE TRIBUNAL AFTER CONSIDERING THE AFORESAID JUDGMENT CONCLUDED AS U NDER: 11. THE YEAR UNDER APPEAL BEFORE THE TRIBUNAL IS ASSESSMENT YEAR 2010 - 11 AND IN CASE THE SAME SIMILE IS APPLIED TO THE FACTS OF THE PRESENT CASE, THE ASSESSING OFFICER IS NOT EMPOWERED TO ADOPT THE FAIR MARKET VALUE OF THE SAID PROPERTY AT 10,000/ - PER ACRE. ACCORDINGLY, WE REVERSE THE ORDER OF CIT(A) IN THIS REGARD AND DIRECT HIM TO ADOPT THE FAIR MARKET VALUE AS ON 01.04.1981 AS DECLARED BY THE ASSESSEE. 12. NOW, COMING TO THE SECOND CLAIM OF ASSESSEE I.E. DEDUCTION UNDER SECTION 54F OF THE ACT. IN CASE THE FAIR MARKET VALUE ADOPTED AT A FIGURE SHOWN BY THE ASSESSEE, THEN IN CASE IT IS NECESSARY TO ADJUDICATE THE CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT, THE ASSESSING OFFICER MAY PROVIDE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE IN THIS REGARD TO FURNISH COMPLETE INFORMATION AND THEREBY DECIDE THE SAID ISSUE. THE GROUNDS OF 5 ITA NO S. 1427 & 1428/PUN/2017 APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED AS INDICATED ABOVE. 7. SINCE, BOTH THE SIDES ARE UNANIMOUS IN ADMITTING THAT THE FACTS IN THE PRESENT SET OF APPEALS ARE IDENTICAL TO THE ONE ALREADY ADJUDICATED BY THE TRIBUNAL IN THE CASE OF OTHER TWO CO - OWNERS OF LAND AND THE SALE TRANSACTION IS ALSO THE SAME, THEREFORE, FOLLOWING THE ORDER OF CO - ORDINATE BENCH IN THE CASE OF OTHER TWO CO - O WNERS, THE APPEALS BY BOTH THE ASSESSEES ARE ALLOWED IN SIMILAR TERMS . 8. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED ON MONDAY, THE 18 TH DAY OF MARCH, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 18 TH MARCH, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1 , AURANGABAD 4. THE PR. COMMISSIONER OF INCOME TAX - 1 , AURANGABAD 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE