JYOTI SHAIKH, MUMBAI V. ITO 19(3)(2), MUMBAI

ITA 1537/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3142 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: J
• Assessment Year: 2008-2009
• Appeal Filed On: 05-03-2014
• Court: TRIBUNAL
• Department Lawyers: N PADMANABHAN
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Valuation report
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER I.T.A. NO. 1537/M/2014 (AY: 2008 - 2009 ) MRS. JYOTHI H. SHAIKH, E - 4, MARIAN HOUSE, TPS III, 29, WATER FIELD ROAD, BANDRA (W), MUMBAI - 400 050. / VS. ITO - 19(3)(2), R.NO.306, 3 RD FLOOR, PIRAMAL CHAMBERS, LOWER PAREL, MUMBAI - 400 012. ./ PAN : AAYPS4900P ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ANIL THAKRAR / RESPONDENT BY : SHRI N. PADMANABHAN, DR / DATE OF HEARING : 24 .09.2015 / DATE OF PRONOUNCEMENT : 30 .09.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 5.3.2014 IS AGAINST THE ORDER OF THE CIT (A) - 30, MUMBAI DATED 5.12.2013 FOR THE ASSESSMENT YEAR 2008 - 2009. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD CIT (A) HAS ERRED IN CONFIRMING THE VALUE OF PROPERTY OF RS. 1,68,06,000/ - AS DERIVED BY DEPARTMENT VALUATION OFFICER VIDE VALUATION REPORT DATED 28.6.2013, IN SPITE OF THE FACT THAT, PROPERTY WAS UNDER LITIGATION SINCE 1982 DUE TO ENCROACHMENT OF UNAUTHORIZED TENANTS AND FOR THE SAME CASE WAS FILED IN COURT. 2. WITHOUT PREJUDICE TO GROUND NO.1 THE LD CIT (A) ERRED IN NOT CONSIDERING THE FOLLOWING IMPORTANCE FACTS BEFORE ACCEPTING THE VALUE DERIVED BY DEPARTMENT VALUATION OFFICER. I. THE PROPERTY IS UNDER LITIGATION AN D IN DISPUTE SINCE MORE THAN TWO DECADES. II. THE PROPERTY IS ENCROACHED BY UNAUTHORIZED TENANTS IE PROPERTY IS IN POSSESSION OF UNAUTHORIZED TENANTS AND NOT IN THE POSSESSION OF APPELLANT TFOR WHICH THE SUIT WAS FILED IN THE COURT OF SMALL CAUSES IN BOMB AYVIDE RAE SUIT NO. 4093 OF 1982 DATED 30 TH APRIL, 1982. III. THE CIT (A) HAS ERRED IN NOT CONSIDERING THE OBJECTIONS RAISED BEFORE DVO WITH REGARDS TO TDS RATES, THE TDS RATES CONSIDERED BY DVO WHILE WORKING OUT FAIR MARKET VALUE IS RS. 1161.68 SQ FT WHI CH IS JUST AROUND 35% OF THE MARKET VALUE ON GOING AT THE POINT OF TIME ROUGHLY AROUND (RS. 2,500/ - TO RS. 3,200/ - ) FOR WHICH EVIDENCE WAS ALSO SUBMITTED TO DEPARTMENTAL VALUATION OFFICER DATED 15 TH MAY 2013. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSES SEE BROUGHT OUR ATTENTION TO THE ABOVE GROUNDS AND SUBMITTED THAT THE CORE ISSUE RAISED IN THE GROUNDS RELATES TO THE VALUE 2 OF PROPERTY SOLD BY THE ASSESSEE, TO WHICH PROVISIONS OF SECTION 50C OF THE ACT WERE INVOKED. BEFORE US, LD COUNSEL FOR THE ASSESSE E FILED WRITTEN SUBMISSIONS STATING THAT THE PROPERTY WAS DEVOLVED ON THE ASSESSEE ALONG WITH FOUR OTHER SIBLINGS. THE SAID PROPERTY WAS SOLD BY THE ASSESSEE FOR A LUMP SUM AMOUNT OF RS. 1 CRS IN THE YEAR UNDER CONSIDERATION. AS PER THE STAMP DUTY AUTHOR ITIES, THE SAID VALUE WAS ASSESSED AT RS. 2,87,29,456/ - . THE PROPERTY WAS REFERRED TO THE DVO FOR VALUATION, WHO VALUED THE PROPERTY AT RS. 1,68,05,971/ - . IT IS THE SUBMISSION OF THE ASSESSEE THAT THE VALUATION OF THE DVO WAS OBJECTED AND THE OBJECTIONS WERE NOT PROPERLY DEALT WITH BY THE DVO / AO / CIT (A). IN THIS BACK GROUND OF THE FACTS, THE ASSESSEE POINTED OUT THE ERRORS IN THE VALUATION WHICH ARE EXTRACTED AS UNDER: A ) . THE DVO HAS ASSUMED FSI, WHICH IS WRONG BECAUSE THE A IS NOT A BUILDER / DEVE LOPER. THE DVO HAS TAKEN TDS RATE @ 12500/ - PER SQUARE METER (1161/ - PER SQUARE FEET) BASIS ENQUIRY WITH ONLY ONE PLAYER HDIL. B) THE DVO IS ALSO ERRED IN NOT CONSIDERING OUR OBJECTION THAT THE TDS RATES WERE RANGING FROM TDS, THE RESPECTED DVO HAS MENTIO NED THAT THE TDS RATE PROVIDED BY ASSESSEE IS TO BE UTILIZED IN BANDRA (W AREA (VIDE PAGE NO.11). ON THIS WE WOULD LIKE TO CLARIFY THAT NEW PAPER ARTICLES SUBMITTED ON PAGE NOS. 16 & 17 STATES THAT TDR CAN BE UTILIZED IN BANDRA, BUT IT NO WHERE MENTIONS IT WILL BE UTILIZED IN BANDRA WEST ONLY. HENCE, REJECTING OUR OBJECTION BASED ON BUA OF BANDRA AND ENQUIRY WITHOUT SUBSTANTIVE EVIDENCE CANNOT BE BASE FOR VALUATION OF TDS. C) THE DVO IS ALSO ERRED IN CONSIDERING RENT PAID ONLY FOR 24 MONTHS INSTEAD OF 60 MONTHS, WHICH CAN ALSO BE VERIFIED FROM PAGE 8 OF THE PB IN POINT 2.1 INSPECTION (THAT THE MEASUREMENTS OF THE PLOT WERE TAKEN.) D) ACCORDINGLY, THE PROVISIONS OF SECTION 50C CANNOT BE APPLIED IN THE CASE OF BUILDER / DEVELOPER / FSI / TDR, THE SAME VIEWS ARE AS PER THE PROVISIONS OF THE ACT AS WELL AS RECENT JUDGMENTS ONE OF WHICH IS PREM RATTAN GUPTA, MUMBAI - ITAT. 3. BRINGING OUR ATTENTION TO THE IMPUGNED ORDER AND THE VALUATION REPORT, WHICH IS PLACED AT PAGE 7 OF THE PAPER BOOK, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT (A) ERRED IN NOT ATTENDING TO THE ABOVE OBJECTIONS RAISED BY THE ASSESSEE. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO PARA 5 AND ITS SUB - PARAS OF THE IMPUGNED ORDER TO SUBSTANTIATE THE SAME. 4. ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 5. ON HEARING BOTH THE PARTIES AND GOING THOUGH THE WRITTEN SUBMISSIONS OF THE ASSESSEE ALONG WITH THE OBJECTIONS EXTRACTED ABOVE, WE ARE OF THE OPINION THAT THE O RDER OF THE CIT (A) CANNOT BE CONSIDERED AS A SPEAKING ORDER, DESPITE THE WRITTEN SUBMISSIONS BEFORE THE CIT (A) ALSO. BEFORE THE CIT (A), ASSESSEE SUBMITTED THAT 3 THE VALUE OF THE PROPERTY SHOULD BE IDEALLY A SUM OF RS. 83,57,865/ - , WHICH WAS, IN FACT, FO UND PLACED IN THE SUBMISSIONS GIVE BY THE ASSESSEE BEFORE THE CIT (A). THEREFORE, WE ACCEPT THE LD COUNSELS PRAYER FOR REMANDING THIS ISSUE TO THE FILE OF THE CIT (A) FOR WANT OF A SPEAKING ORDER AFTER ADDRESSING EACH OF THE OBJECTIONS RAISED BY THE ASSE SSEE AND AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARING TO THE ASSESSEE. ACCORDINGLY, ALL GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 T H SEPTEMBER, 2015. S D / - S D / - (SANDEEP GOSAIN) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 3 0 .9 .2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI