INDU TYAGI, Ghaziabad V. ITO, WARD- 1(3), Ghaziabad

ITA 1432/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3946 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Assessee Lawyers: RAJ KUMAR AGARWAL
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice
• Section: 50C; 147

Judgement Text

1 ITA NO. 1432/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I2 + SMC NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 1432/DEL/2018 ( A.Y 2009-10) INDU TYAGI 19, NAVYUG MARKET, 2 ND FLOOR, GHAZIABAD UTTAR PRADESH AHTPL2342J (APPELLANT) VS ITO WARD-1(3) GHAZIABAD (RESPONDENT) APPELLANT BY SH. RAJ KUMAR AGARWAL, CA RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 30/11/2017 PASSED BY CIT(A)-GHAZIABAD FOR ASSESSMENT YEAR 200 9-10. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THE ORDER PASSED BY THE A.O IS IN BAD IN LAW AND A GAINST THE CANNON OF TAXATION. 1. THE A.O. HAS IGNORED OF LAW AND INTERPRETED WRONGLY . 2. THE A.O. HAS VITIATED BY THE FACT, FINDING AND REAC HED ON ASSESSMENT ONLY ON THE PRESUMPTION AND ASSUMPTIONS AND NOT BAS ED ON ANY RELEVANT EVIDENCES OR CIRCUMSTANCES. 3. THE AO HAS NOT PROVIDED THE OPPORTUNITY OF BEING H EARD. 4. THE ASSESSEE IS A INDIVIDUAL (WIDOW) AND DONT HAV E ANY SOURCE OF DATE OF HEARING 26.02.2020 DATE OF PRONOUNCEMENT 02 .03.2020 2 ITA NO. 1432/DEL/2018 INCOME EXCEPT SAVINGS BANK INTEREST. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, AO HAS ERRED IN LAW AND ON FACTS THE CIT(A)/AO HAS TAKEN C IRCLE VALUE OF RS. 1,08,51,000/- AS PER SECTION 50C WHILE SALE CONSIDE RATION IS RS. 45,91,000/-. 6. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, AO HAS ERRED IN LAW AND ON FACTS THE CIT(A)/AO HAS TAKEN T HE CIRCLE VALUE OF RS 1,08,51,000/- AS PER SEC 50C WHILE THE SALE CONSIDE RATION IS RS 45,91,000/- WHOSE 1/4 TH SHARE COMES TO RS 11,47,750/-. 7. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, AO HAS ERRED IN LAW AND ON FACTS THE CIT(A)/AO HAS TAKEN C IRCLE VALUE OF RS. 1,08,51,000/- AS PER SECTION 50C WHILE SALE CONSIDE RATION IS RS. 45,91,000/- WHICH IS PREVAILING MARKET VALUE RATE. THE AO HAS N OT GET IT VALUED FROM VALUATION OFFICER. 8. THE AO HAS NOT PROVIDED THE REASON FOR ISSUING NOT ICE U /S 148. THUS THE PROCEEDING U/S 147 IS ILLEGAL & VOID-AB-INTIO. 3. THE ASSESSEE IS A INDIVIDUAL AND DURING T HE YEAR THE ASSESSEE HAD SOLD IMMOVABLE PROPERTY, FOR RS. 45,91,000/-(JOINTLY OWN ED BY FOUR PERSON IN EQUAL SHARE. WHICH COMES TO RS. 11,47,750/- OF ASSESSEES SHARE) & VALUE AS PER CIRCLE RATE IS RS 1.08,50,320/-. THE RETURN WAS FI LED ON 01-09-2016 FOR THE SAID YEAR. THE ASSESSMENT U/S 147/143(3) WAS COMPLE TED ON 10/10/2016 FOR A.Y. 2009-10 AND INCOME WAS ASSESSED AT RS.12, 25,3 60/-. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE ADDITION MADE BY T HE ASSESSING OFFICER IS ONLY ON THE PRESUMPTION AND ASSUMPTION BASIS AND RE LEVANT EVIDENCES WERE NOT TAKEN INTO ACCOUNT AS RELATED TO CIRCLE VALUE O F RS. 1,08,51,000/- AS PER SECTION 50C OF THE INCOME TAX ACT, WHILE SALE CONSI DERATION IS RS. 45,91,000/-. THE LD. AR FURTHER SUBMITTED THAT AS THE ASSESSEE I S HAVING ONLY ONE FOURTH 3 ITA NO. 1432/DEL/2018 SHARE OF THE PROPERTY AS THE SAID PROPERTY IS JOINT LY OWN BY THE ASSESSEE WITH HIS BROTHERS. THEREFORE, ONE FOURTH SHARE COMES TO RS. 11,47,750/-. THUS, THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) WAS NOT CORRECT IN MAKING ADDITION. 6. THE LD. DR SUBMITTED THAT THE CIT(A) HAS CATEGOR ICALLY GIVEN THE FINDING THAT THE ASSESSING OFFICER HAS CORRECTLY ADOPTED TH E VALUE AS PER CIRCLE RATE FOR COMPUTATION OF CAPITAL GAIN CONSIDERING FULL VALUE OF CONSIDERATION AS PER PROVISION OF SECTION 50C APPLICABLE DURING THE YEAR . THUS, THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT( A). 7. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. IT IS PERTINENT TO MENTION THAT THE CIT(A) WHILE CO NFIRMING THE ORDER OF THE ASSESSING OFFICER HAS NOT AT ALL GIVEN THE REASON AS TO HOW THE ASSESSING OFFICER HAS RIGHTLY ADOPTED THE VALUE AS PER CIRCL E RATE FOR COMPUTATION. THE CIT(A) ALSO HAS NOT TAKEN COGNIZANCE OF THE EVIDENC ES FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A) . THEREFORE, IT WILL BE APPROPRIATE TO REMAND BACK THIS MATTER TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION AFTER TAKING COGNIZANCE OF THE EVIDENC ES BEFORE THE REVENUE AUTHORITIES. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. 8. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND MARCH, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 02/03/2020 R. NAHEED 4 ITA NO. 1432/DEL/2018 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 26.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 02.03.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 02.03.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 02.03.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER