LATE USHAKANT C. SHETH, MUMBAI V. ITO 17(3)(5), MUMBAI

ITA 1469/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6752 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 02-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU
• Assessee Lawyers: JITENDRA JAIN BHARAT D DAMODAR
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Fair market value; Valuation report
• Section: 143(3); 50C; 142(1); 147; 148

Judgement Text

1 ITA 1469/MUM/2017 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI MAHAVIR SINGH SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.1469/MUM/2017 (ASSESSMENT YEAR: 2007-08) LATE USHAKANT C SHETH 3 RD FLOOR, RAJA BAHADUR MANSION, 22, MUMBAI SAMACHAR MARG, FORT, MUMBAI-400 023 PAN : AAHPS3788A VS ITO, 17(3)(5), MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI JITENDRA JAIN / BHARAT D DAMODAR RESPONDENT BY SHRI M.V. RAJGURU DATE OF HEARING 21-06-2018 DATE OF PRONOUNCEMENT 27-06-2018 O R D E R PER G MANJUNATHA, AM : THIS APPEAL FILED BY THE ASSESSEE, THROUGH LEGAL H EIRS IS DIRECTED AGAINST ORDER OF CIT(A)-28, MUMBAI DATED 02-01-2017 AND IT PERTAINS TO AY 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE THE COMMISSIONER OF INCOME-TAX (APPEALS)-28, MUMBAI ERR ED IN UPHOLDING THE RE- OPENING OF ASSESSMENT BY THE ASSESSING OFFICER BY I SSUING THE NOTICE UNDER SECTION 148. 2. ON THE FACTS AND IN THE CIRCUM STANCES OF THE CASE THE COMMISSIONER OF INCOME-TAX (APPEALS)-28, MUMBAI ERR ED IN NOT ADJUDICATING THE ISSUE OF YEAR OF TRANSFER ALTHOUGH THE DEVELOPMENT AGREEMENT WAS MADE ON 26TH OCTOBER, 2001 AND THE POSSESSION OF THE PROPERTY WA S HANDED OVER ON 5 TH MAY, 2005 TO THE DEVELOPER. 2 ITA 1469/MUM/2017 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE HON'BLE COMMISSIONER OF INCOME-TAX (APPEALS)-28, MUMBAI ERRED IN NOT RESTOR ING THE FILE TO THE ASSESSING OFFICER AS WAS DONE BY THE ITAT, MUMBAI IN THE CASE OF THE WIFE OF THE APPELLANT LATE MRS. URMILA USHAKANT SHETH WHO WAS A JOINT OWNER TO THE EXTENT OF 50% OF THE PROPERTY. IN THE WIFE'S 1 CASE, THE FILE WAS RESTORED TO THE ASSESSING OFFIC ER TO VERIFY THE DATE OF HANDING OVER POSSESSION AND PASSING OVER OF SALE CONSIDERATION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE HON *BLE COMMISSIONER OF INCOME-TAX (APPEALS)-28, MUMBAI ERRED IN NOT ADJUDI CATING THE ISSUE THAT THE CAPITAL GAIN ON SALE OF LAND HAVING ALREADY BEEN OFFERED TO TAX IN ASSESSMENT YEAR 2006-07 AND THE SAME ALSO HAVING BEEN ASSESSED U/S 143(3) I N A.Y.2006-07 IN THE CASE OF THE OTHER CO-OWNER, THE SAME COULD NOT HAVE BEEN AGAIN TAXED IN THE ASSESSMENT YEAR 2007-08. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE HONTILE COMMISSIONER OF INCOME-TAX (APPEALS)-28, MUMBAI ERRED IN UPHOLDING THE APPLICABILITY OF PROVISIONS OF SECTION 50C ALTHOUGH THE LAND TRANSFERRED WAS A LEASEHOLD LAND. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE HONTDLE COMMISSIONER OF INCOME-TAX (APPEALS)-28, MUMBAI ERRED IN UPHOLDING THE APPLICATION OF PROVISIONS OF SECTION 50C TO THE CASE OF YOUR APPELLANT. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE HONTDLE COMMISSIONER OF INCOME-TAX (APPEALS)-28, MUMBAI ERRED IN CONFIRMING THAT THERE WAS NO NEED TO REFER THE VALUATION TO THE VALUATION OFFICER AS PER THE P ROVISIONS OF SECTION 50C(2) AND IGNORING THE FACT THAT THE ITAT, MUMBAI IN THE CASE OF THE WIFE OF THE APPELLANT LATE MRS. URMILA USHAKANT SHETH WHO WAS A JOINT OWNER TO THE EXTENT OF 50% OF THE PROPERTY, THE FILE WAS RESTORED TO THE ASSESSING OF FICER FOR SEEKING VALUATION REPORT FROM THE VALUATION OFFICER. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME FOR AY 2007-08 ON 31-07-2007 DECLARING TO TAL INCOME FOR AY 2007-08 AT RS.1,45,744. THE CASE HAS BEEN REOPENED U/S 147 OF THE ACT AFTER RECORDING REASONS FOR REOPENING. IN RESP ONSE TO THE NOTICE, LEGAL HEIRS OF THE ASSESSEE, VIDE THEIR LETTER DATE D 30-06-2014 SUBMITTED THAT THE RETURN OF INCOME FILED ON 31-07-2007 MAY B E TREATED AS RETURN FILED IN COMPLIANCE TO THE NOTICE U/S 148 OF THE AC T. SUBSEQUENTLY, THE CASE HAS BEEN SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED. IN RESPONSE TO NOTICES, THE A SSESSEE HAS FILED VARIOUS DETAILS, AS CALLED FOR. DURING THE COURSE OF ASSESSMENT 3 ITA 1469/MUM/2017 PROCEEDINGS, AO NOTICED THAT THE ASSESSEE HAS TRANS FERRED AN IMMOVABLE PROPERTY, HOWEVER, NO CAPITAL GAIN HAS BE EN DISCLOSED IN THE RETURN OF INCOME FOR THE YEAR. THEREFORE, CALLED U PON THE ASSESSEE TO EXPLAIN AS TO WHY CAPITAL GAIN SHALL NOT BE COMPUTE D IN RESPECT OF TRANSFER OF PROPERTY. IN RESPONSE TO NOTICE, THE A SSESSEE, VIDE LETTER DATED 14-03-2015 SUBMITTED THAT HE, ALONGWITH HIS W IFE JOINTLY ENTERED INTO A DEVELOPMENT AGREEMENT WITH M/S SHETH ENTERPR ISES FOR DEVELOPMENT OF PROPERTY ON 26-10-2001 AND ALSO EXEC UTED A POWER OF ATTORNEY FOR DEVELOPMENT, BUT THE SAME WAS NOT CONV EYED WITH POSSESSION OF THE PROPERTY. THE ASSESSEE FURTHER S UBMITTED THAT THE SAID TRANSACTION WAS APPROVED BY THE COMPETENT AUTH ORITY U/S 269UL(3); HOWEVER, THE POSSESSION OF THE PROPERTY HAS BEEN GI VEN IN 2005-06 AND THE ASSESSEE HAS CONSIDERED TRANSFER OF PROPERTY IN THE ASSESSMENT YEAR 2006-07 AND INCLUDED RESULTANT CAPITAL GAIN IN THE RETURN OF INCOME FILED FOR AY 2006-07. THE ASSESSEE FURTHER SUBMITT ED THAT SUBSEQUENTLY BECAUSE OF VARIOUS REASONS, THE ASSESSEE HAS ENTERE D INTO AN AGREEMENT FOR TRANSFER OF ITS PORTION DEVELOPED PRO PERTY TO THE BUILDER AND SUCH AGREEMENT HAS BEEN REGISTERED IN THE FINAN CIAL YEAR RELEVANT TO AY 2007-08. SINCE THE ASSESSEE HAS HANDED OVER POS SESSION OF THE PROPERTY IN THE FINANCIAL YEAR 2005-06 RELEVANT TO AY 2006-07, IT HAS ADMITTED CAPITAL GAIN IN THAT YEAR AND ACCORDINGLY, NO CAPITAL GAIN IS 4 ITA 1469/MUM/2017 LIABLE FOR TAX IN THE YEAR UNDER CONSIDERATION. TH E AO, AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE HELD THAT AS P ER THE AGREEMENT DATED 08-12-2006, THE ASSESSEE HAS CONVEYED RIGHT I N THE PROPERTY IN FAVOUR OF THE PURCHASER, THEREFORE, CAPITAL GAIN ON TRANSFER OF THE SAID PROPERTY AROSE FOR AY 2007-08. SINCE THE ASSESSEE HAS FAILED TO OFFER ANY CAPITAL GAIN ON SAID TRANSFER, THE AO HAS COMPU TED LONG TERM CAPITAL GAIN AND DETERMINED TAXABLE INCOME OF RS.3,14,889 I N THE HANDS OF THE ASSESSEE. 3. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS CHALLENGED THE REOPENING OF THE ASSESSMENT ON THE GROUND THAT THE ASSESSMENT HAS BEEN REOPENED AFTER 4 YEARS AND THE AO HAS FORMED R EASONABLE BELIEF OF ESCAPEMENT OF INCOME IN RESPECT OF CAPITAL GAIN WIT HOUT ANY ALLEGATION ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND T RULY ALL MATERIAL FACTS NECESSARY FOR COMPUTATION OF INCOME. THE ASSESSEE ALSO CHALLENGED ADDITION MADE BY THE AO TOWARDS COMPUTATION OF LONG TERM CAPITAL GAIN BY REITERATING ITS SUBMISSION MADE BEFORE THE AO. THE ASSESSEE FURTHER CHALLENGED THE ACTION OF THE AO, APPLYING THE PROVI SIONS OF SECTION 50C TO DETERMINE FULL VALUE OF CONSIDERATION. THE CIT( A), AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE REJECTED GROUN D TAKEN BY THE ASSESSEE, CHALLENGING REOPENING OF ASSESSMENT ON TH E GROUND THAT IN 5 ITA 1469/MUM/2017 ASSESSEES CASE, THE ORIGINAL ASSESSMENT HAS BEEN C OMPLETED U/S 143(1) OF THE ACT, AND IN VIEW OF THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS L TD 291 ITR 50 (SC) HELD THAT PROCESSING OF RETURN U/S 143(1) IS NOT AN ASSESSMENT AND ACCORDINGLY, THE ASSESSEE CANNOT TAKE A PLEA THAT H E HAS DISCLOSED ALL MATERIAL FACTS NECESSARY FOR COMPLETION OF ASSESSME NT. INSOFAR AS ADDITION MADE BY THE AO TOWARDS COMPUTATION OF LONG TERM CAPITAL GAIN, THE CIT(A) HELD THAT THE ASSESSEE HAS TRANSFERRED T HE PROPERTY BY WAY OF DEED OF CONVEYANCE DATED 08-12-2006 AND ACCORDINGLY , ANY CAPITAL GAIN ARISING FROM SAID TRANSFER IS ASSESSABLE IN AY 2007 -08, THEREFORE, THERE IS NO MERIT IN THE ARGUMENTS OF THE ASSESSEE THAT T HE POSSESSION OF THE PROPERTY HAD BEEN HANDED OVER TO THE DEVELOPER ON 0 5-05-2005, THAT TOO, WITHOUT ANY DOCUMENTARY EVIDENCE. THE LD.CIT( A) ALSO REJECTED THE ARGUMENTS OF THE ASSESSEE INSOFAR AS APPLYING THE P ROVISIONS OF SECTION 50C BY HOLDING THAT THE ASSESSEE HAS NOT MADE ANY R EQUEST BEFORE THE AO FOR REFERRING THE MATTER TO THE DVO TO DETERMINE MARKET VALUE OF THE PROPERTY. THEREFORE, AT THIS JUNCTURE, THE ASSESSE E CANNOT TAKE PLEA THAT THE AO HAS NOT REFERRED THE PROPERTY TO THE DVO TO ASCERTAIN CORRECT MARKET VALUE. THE RELEVANT PORTION OF THE ORDER OF THE CIT(A) IS EXTRACTED BELOW:- 3,THESE GROUNDS CHALLENGED THE ASSESSMENT ON MERIT . THE BASIC FACTS OF THE CASE ARE THAT THE ASSESSMENT IN THE CASE OF LATE SM T.URM1LA U SHETH 6 ITA 1469/MUM/2017 WAS COMPLETED IN A SCRUTINY ON 24/12/09 AND RS. 13. 49 CRORES WAS TAKEN AS DEEMED CONSIDERATION FOR THE PROPERTY REGISTERED TH ROUGH AGREEMENT DATED 26 1 OF FEBRUARY 2001, HELD IN THE JOINT NAME OF THE LA DY AND THE APPELLANT. ACCORDINGLY, CAPITAL GAINS WAS WORKED OUT AT RS. 6.28 CRORES HAL F OF WHICH BELONG TO THE LATE SMT URMILA U.SHETH AND THE BALAN CE BELONG TO THE APPELLANT. THIS ASSESSMENT ADDITION ALREADY STANDS CONFIRMED ADMITTEDLY BY FAA THROUGH ORDER DATED 25 TH OF FEBRUARY 2011. 3.1 HOWEVER, IT WAS OBSERVED BY THE AO THAT THE BAL ANCE 50% WAS NOT OFFERED FOR TAX AS CAPITAL GAINS. FOR THE IMPUGNED YEAR. THAT IS , ASSESSMENT YEAR 07 - 08. IT WAS ON THIS BASIS THAT THE REOPENING WAS DONE. THE REOPENING CHALLENGED BEFORE THE AO WAS DI SPOSED OF THROUGH A SPEAKING ORDER DATED 19/01/15. SHOW CAUSE NOTICE SU BSEQUENTLY ISSUED TO THE LEGAL HEIRS STATING THAT THE AMOUNT OF RS. 13.4 9 CRORES IS TO BE TAKEN AS DEEMED CONSIDERATION OF THE PROPERTY REGISTERED WID E AGREEMENT DATED 26/2/01, WHEREIN ASSESSEE HAVING 50% SHARE AND ASSE SSEES LONG-TERM CAPITAL GAINS, COMING TO RS. 3.14 CRORES SHOULD BE ASSESSED AS SUCH. 3.2 THE APPELLANT MADE DETAILED SUBMISSIONS BEFORE THE AO. AFTER CONSIDERING THE SAME, THE AO NOTES IN PARA SEVEN TH AT THE DATE OF REGISTRATION OF THE DEED OF CONVEYANCE WAS 8/12/06 AND IT WAS NEVER BROUGHT TO THE NOTICE OF THE THEN ASSESSING OFFICER . ALL THAT WAS PLACED ON RECORD WAS THAT THE POSESSION IN RESPECT OF ASSESSE D PROPERTY WAS GIVEN IN FINANCIAL YEAR 05 - 06 AND EVEN THOUGH THERE WAS NO DOCUMENTARY EVIDENCE TO SUPPORT THIS THE ASSESSEE OFFERED LTCG, WHICH IN FACT, ACCORDING TO THE ASSESSEE IS LONG TERM CAPITAL LOSS . THE DOCUMENT OF REGISTRATION DATED DECEMBER 06 WERE NEVER PRODUCED BEFORE THE TAX AUTHORITIES. ACCORDINGLY THE LTCG WAS SPLIT UP ARTI FICIALLY IN TWO YEARS TO AVOID THE COMPLIANCE OF APPLICATION OF SECTION 50 C . 3.3 FURTHER IN MANDATING THAT THERE WAS AN AGREEMEN T ON PART OF HUSBAND AND WIFE ON ONE SIDE IN THE CAPACITY OF OWNERS ONE OF WHICH IS THE PRESENT APPELLANT AND M/S SHETH ENTERPRISES ON THE OTHER. W HAT WAS BROUGHT INTO EXISTENCE WAS MERELY A DEVELOPMENT AGREEMENT WHICH CONFERRED DEVELOPMENT RIGHTS TO THE DEVELOPER. THE ABSOLUTE T ITLE OF THE PROPERTY WAS NEVER CONVEYED TO THE OPPOSITE PARTY AND THEY HAD O NLY LIMITED RIGHTS TO THE EXTENT OF DEVELOPING THREE BUILDINGS ON THE SAI D LAND. ACCORDINGLY, IN FINANCIAL YEAR 01 - 02 NO TRANSFER OF PROPERTY TOOK PLACE. 3.4 THE OBJECTION IN RESPECT OF APPROPRIATE AUTHORI TY PASSING AN ORDER UNDER SECTION 269UL(3) WAS DULY DEALT WITH BY THE A SSESSING OFFICER, AND HE MENTIONS THAT THE SAME WAS FOR THE LIMITED PURPO SE OF THE CONTENTS OF AGREEMENT DATED 26 TH OF FEBRUARY 2001 AND THE SAME CANNOT BE EXTRAPOLATED TO APPLY TO THE TRANSACTION IN FINANCI AL YEAR 06 - 07 IN RESPECT OF DEED OF CONVEYANCE. THE LATTER IS ACTUALLY WHERE IN THE PARTIES ENTERING INTO AGREEMENT ARE DEFINED AS VENDORS AND PURCHASER S AND THIS DOCUMENT CONVEYS ABSOLUTE TITLE OF THE PROPERTY TO THE PURCH ASER AND THEREFORE THE PROVISIONS OF SECTION 50 C SQUALLY APPLY. ACCORDING LY, TAKING RUPEES 13.49 CRORES TO BE THE FULL VALUE OF CONSIDERATION LONG-T ERM CAPITAL GAINS WERE WORKED OUT BY THE ASSESSING OFFICER. POSSESSION OF THE PROPERTY TO THE DEVELOPER ON 5/5/ 05 ESTABLISH THAT THE CONTENTION MADE BY THE APPELLANT IS CORRECT AND THE TRANSFER TOOK PLACE IN THE PREVIOUS ASSESSMENT YEAR AS PART PERFORMANCE OF THE CONTRACT 7 ITA 1469/MUM/2017 AND WERE DULY SHOWN IN THAT YEAR ITSELF CAPITAL GAI NS, ACCORDINGLY, DID NOT ARISE, UNDER THE PRESENT YEAR. IT IS FURTHER CH ALLENGE THAT REFERENCE TO DVO WAS NOT MADE. THE APPEAL IN THE CASE OF THE LADY IS PENDING BEFORE THE HONORABLE ITAT. 4.1 AFTER CAREFUL CONSIDERATION OF THE FACTS I FIND THAT THERE WAS NO CHALLENGE BEFORE THE AO IN RESPECT OF VALUATION. IT IS SETTLE D LAW NOW THAT THE CHALLENGE WHICH IS REQUIRED IN RESPECT OF VALUATION UNDER SECTION 50C(2) HAS TO BE MOUNTED BY THE APPELLANT BEFORE THE AO DE MONSTRATING ALL THE WHILE THAT THE VALUATION OF SVA IN FACT, EXCEEDS TH E FMV OF THE PROPERTY. ONLY THEN THE AO IS OBLIGED TO REFER THE MATTER TO THE DVO WHO DETERMINES THE ISSUE AND ACCORDING TO THE VALUA TION AND KEEPING THE PROVISIONS OF SECTION 50 C IN MIND THE FINAL SA LE CONSIDERATION FOR THE PURPOSE OF CAPITAL GAINS IS DETERMINED. 4.2 I FIND THAT NO SUCH CHALLENGES BEEN MOUNTED BEF ORE THE ASSESSING OFFICER AND, THEREFORE, THIS CHALLENGE OF THE APPEL LANT MUST FAIL. AS REGARDS THE ISSUE ON MERIT I FIND THAT THE PROVISIO NS OF SECTION 50 C ADMIT OF NO EXCEPTION. IN THE EXHAUSTIVE SUBMISSION S PLACED BEFORE ME. THE APPELLANT HAS BEEN SINGULARLY UNABLE TO DEMONST RATE AS TO HOW THE PROVISIONS OF THE SAID SECTION ARE NOT APPLICABLE I N ITS CASE. IN FACT, THE SUBMISSIONS OF THE APPELLANT ARE CONTRADICTORY, INA SMUCH AS THE APPELLANT CLAIMS IN THE RELIEF CLAIMED PART OF THE PAPERS RELATING TO APPEAL, THAT SECTION 50 C IS NOT APPLICABLE IN ITS CASE AND ON THE OTHER HAND IN THE PLEADINGS THE APPELLANT STATES THAT THE ISSUE SHOULD HAVE BEE N REFERRED TO VALUATION OFFICER BY THE AO. THIS ATTITUDE OF RUNNI NG WITH THE HARE AND HUNTING WITH THE HOUND IS OF NO HELP TO THE CAUSE O F THE APPELLANT AND IN FACT, EXPOSES THE CONFUSED STATE OF MIND AS TO WHET HER THE APPELLANT REQUIRES THE RELIEF IF ANY, WHICH IS PROVIDED BY TH E REFERENCE TO THE VALUATION OFFICER SHOULD BE TAKEN, OR WHETHER THE A PPLICABILITY OF SECTION 50 C ITSELF SHOULD BE CHALLENGED. 4.3 IN VIEW OF THE COMPLETE INABILITY OF THE APPELL ANT TO DEMONSTRATE AS TO HOW THE IMPUGNED SECTION IS NOT APPLICABLE IN TH IS CASE I'M UNABLE TO INTERFERE IN THE ISSUE AT ALL. THE PROVISIONS OF SE CTION 50 C DO NOT ADMIT OF ANY DEVIATION/CONTROVERSY AND IT IS HELD, ON THE FACTS OF THE CASE, THAT THE SAID SECTION WAS INDEED APPLICABLE IN THE CASE OF THE APPELLANT AND THEREFORE THE AO WAS CORRECT IN APPLYING THE SAME. THE APPELLANT HAS BROUGHT TO MY NOTICE THAT THE ORDER OF THE HONORABL E TRIBUNAL IN THE CASE OF THE WIFE, WHEREIN AS PER THE APPELLANT, THE ISSUE HAS BEEN RESTORED BACK TO THE ASSESSING OFFICER;THE FACT OF THE MATTER IN THE INSTANT CASE IS THAT THE FACTS OF THE INSTANT CASE HAD TO BE TAKEN INTO CONSIDERATION. IT IS NOT CLEAR AS TO WHAT DOCUMENTA TION WAS SUBMITTED IN THE CASE OF THE WIFE BEFORE THE AO AND WHETHER HE WAS LEGALLY O BLIGED TO REFER TO THE MATTER OF THE VALUATION OFFICER AND STILL HE FAILED TO DO SO. THE PRESENT CASE HAS TO BE DECIDED ON ITS OWN SET O F FACTS AND RELIANCE ON THE CASE OF THE WIFE IS OF NO USE TO THE APPELLA NT IN MY CONSIDERED VIEW. 8 ITA 1469/MUM/2017 4. THE LD.AR FOR THE ASSESSEE, AT THE TIME OF HEARI NG, REFERRING TO THE DECISION OF ITAT, MUMBAI BENCH F IN THE CASE OF M RS. URMILA USHAKANT SHETH IN ITA NO.3972/MUM/2011 DATED 17-12-2015 SUBM ITTED THAT THE ASSESSEE IS THE CO-OWNER OF THE PROPERTY IN WHICH H E IS HAVING 50% SHARE AND HIS WIFE IS HAVING 50% SHARE. IN THE CAS E OF ASSESSEES WIFE, THE ITAT HAS SET ASIDE BOTH THE ISSUES TO THE FILE OF THE AO TO ASCERTAIN THE DATE OF TRANSFER IN THE LIGHT OF THE CLAIM OF T HE ASSESSEE THAT POSSESSION OF THE PROPERTY WAS HANDED OVER TO THE D EVELOPER IN THE FINANCIAL YEAR RELEVANT TO AY 2006-07 AND ALSO DETE RMINATION OF SALE CONSIDERATION BY APPLYING THE PROVISIONS OF SECTION 50C BY REFERRING THE MATTER TO THE DVO. SINCE THE FACTS ARE IDENTICAL I N THIS CASE ALSO AS THE ASSESSEE IS HAVING 50% SHARE IN THE IMPUGNED PROPER TY ON WHICH CAPITAL GAIN HAS BEEN LEVIED BY THE AO IN ASSESSEES WIFES CASE, THIS ISSUE REQUIRES TO BE SENT BACK TO THE FILE OF THE AO WITH SIMILAR DIRECTIONS TO BE CONSIDERED AFRESH. 5. THE LD.DR, ON THE OTHER HAND, STRONGLY SUPPORTIN G THE ORDER OF THE LD.CIT(A) SUBMITTED THAT THE ASSESSEE FAILED TO MAK E OUT A CASE FOR SENDING BACK THE MATTER TO THE FILE OF THE AO, AS T HE LOWER AUTHORITIES HAVE CONSIDERED RELEVANT FACTS TO COMPLETE THE ASSE SSMENT. THEREFORE, THERE IS NO REASON TO GIVE ONE MORE CHANCE TO THE A SSESSEE BEFORE THE AO. 9 ITA 1469/MUM/2017 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIALS AVAILABLE ON RECORD. WE FIND THAT THE CO-ORDINATE BENCH IN A SSESSEES WIFE, MRS. URMILA USHAKANT SHETH IN ITA NO. 3972/MUM/2011 DATE D 17-12-2015 HAS SET ASIDE THE ISSUE TO THE FILE OF THE AO FOR F RESH CONSIDERATION IN THE LIGHT OF CLAIM OF THE ASSESSEE THAT CAPITAL GAIN ON TRANSFER OF PROPERTY WOULD ARISE FOR THE FINANCIAL YEAR RELEVANT TO AY 2 006-07, BUT NOT FOR AY 2007-08 AS WELL AS THE ISSUE OF DETERMINATION OF FU LL VALUE OF CONSIDERATION BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT. ALTHOUGH, THE CO-ORDINATE BENCH HAS SET ASIDE BOTH THE ISSUES TO THE FILE OF THE AO, WE FIND THAT THERE IS NO REASON AS TO ON WHAT BASIS THE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE AO. BUT FACT REMAINS THAT SINCE THE ASSESSEE IS ONE OF THE CO-OWNERS OF THE PROPERTY ON WHICH CAPITAL GAIN HAS BEEN LEVIED BY THE AO IN THE HANDS OF THE ASSES SEE AS WELL AS HIS WIFES CASE, WE ARE OF THE CONSIDERED OPINION THAT THIS CASE NEEDS TO GO BACK TO THE FILE OF THE AO FOR FRESH CONSIDERATION ALONGWITH ASSESSEES WIFES CASE. WE FURTHER MAKE IT CLEAR THAT THE ASS ESSEE HAS NOT FILED ANY EVIDENCE TO JUSTIFY HIS ARGUMENT THAT THE POSSESSIO N OF THE PROPERTY HAD BEEN HANDED OVER TO THE BUILDER IN THE FINANCIAL YE AR RELEVANT TO AY 2006-07. HENCE, WE SET ASIDE THE ISSUE TO THE FILE OF THE AO AND DIRECT HIM TO CONSIDER THE ASSESSMENT DE NOVO IN ACCORDANC E WITH LAW AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO TH E ASSESSEE. 10 ITA 1469/MUM/2017 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JUNE, 2018. SD/- SD/- (MAHAVIR SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 27 TH JUNE, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI