Shivaji T. Kasale, Pune V. Income-tax Officer, Ward - 10(3), Pune

ITA 1563/PUN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2963 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 04-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Salary income; Opportunity of being heard; Set aside; Capital Gains
• Section: 143(3); 50C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE (THROUGH VIRTUAL COURT) BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT . / ITA NO.1563/PUN/2019 / ASSESSMENT YEAR : 2011-12 SHRI SHIVAJI T. KASALE, FLAT NO.2, DEEP JYOTI APARTMENT, VIVEKNAGAR, AKURDI, PUNE 411035. PAN : ABJPK9775A. ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 10(3), PUNE. / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI. REVENUE BY : SHRI SUDHENDU DAS. / DATE OF HEARING : 24.11.2020 / DATE OF PRONOUNCEMENT : 24.11.2020 / ORDER PER P.M. JAGTAP, VP : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-8, PUNE DATED 08.08.2019 FOR THE ASSESSMENT YEAR 2011-12 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS .5,80,296/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD.CIT(A) ON ACCO UNT OF LONG TERM CAPITAL GAINS. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO DERIVES INCOME FROM SALARY. DURING THE YEAR UNDER CONSIDERATION, HE SOLD THE LAND JOINTLY OWNED BY HIM AT SURVEY NO.179, HISSA NO.3 SITUATED AT VILLAG E RAUT, HAVELI, 2 ITA NO.1563/PUN/2019 PUNE FOR A TOTAL CONSIDERATION OF RS.7,25,000/-. THE VALUE O F THE SAID LAND AS DETERMINED BY THE STAMP DUTY VALUATION AUTHORITY WAS RS .29,73,440/- AND ACCORDING TO THE ASSESSING OFFICER, THE PROVISIONS OF SEC.50C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WERE AP PLICABLE IN THE ASSESSEES CASE FOR COMPUTING THE LONG TERM CAPITAL GAINS. SINCE NO RETURN OF INCOME WAS FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, NO TICE UNDER SECTION 148 OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER TO THE ASS ESSEE ON 18.03.2016. THE ASSESSEE DID NOT FILE THE RETURN OF INCOME IN RESPONS E TO THE SAID NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 148 OF THE A CT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS SUBMITTED ON BE HALF OF THE ASSESSEE THAT THE LAND SOLD BY HIM WAS UNDER THE RESERVATION FOR STREET AND RAILWAY TRACK AND THE SAME THEREFORE WAS SOLD BY HIM AT LOW COS T. THIS SUBMISSION OF THE ASSESSEE WAS NOT FOUND ACCEPTABLE BY THE ASSESSING OFFICER AND HE PROCEEDED TO COMPUTE THE 1/5 TH SHARE IN THE LONG TERM CAPITAL GAINS ARISING TO THE ASSESSEE FROM THE SALE OF THE SAID LAND AT RS.5,80,296 /- BY ADOPTING THE STAMP DUTY VALUATION AS DEEMED SALE CONSIDERATION BY INVO KING SECTION 50C OF THE ACT IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3 ) R.W.S. 147 OF THE ACT BY ORDER DT.24.11.2016. 3. AGAINST THE ORDER PASSED BY ASSESSING OFFICER UNDER S ECTION 143(3) R.W.S. 147 OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD.CIT(A) CHALLENGING THE ADDITION MADE BY THE ASSESSING OFFICER TO H IS TOTAL INCOME ON ACCOUNT OF LONG TERM CAPITAL GAINS. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A), THERE WAS HOWEVER, NO COMPLIANCE ON TH E PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE APPEAL FOR HEARING FROM TIME TO TIME. THE LD.CIT(A), THEREFORE, DISMISSED THE APPEAL OF THE ASS ESSEE FOR NON- PROSECUTION VIDE HIS APPELLATE ORDER DATED 24.09.2018 PASS ED EX-PARTE. ON FURTHER APPEAL, THE TRIBUNAL VIDE ITS ORDER DATED 20.02.2019 PASSED IN ITA 3 ITA NO.1563/PUN/2019 NO.1900/PN/2018 SET ASIDE THE SAID APPELLATE ORDER PASSE D BY LD.CIT(A) EX- PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-PROSE CUTION AND REMITTED THE MATTER BACK TO THE LD.CIT(A) FOR DECIDING THE APPEAL O F THE ASSESSEE AFRESH AS PER LAW AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. ACCORDINGLY, FRESH OPPORTUNITY WAS AFFORDED BY THE LD.CIT(A) TO THE ASSESSEE AND AVAILING THE SAME, WRITTEN SUBMISSION WAS FILED BY THE AS SESSEE BEFORE LD.CIT(A) SUBMITTING INTER-ALIA THAT THE ASSESSING OFFICER OUGHT TO HAVE REFERRED THE MATTER TO D.V.O. FOR DETERMINING THE FAIR MARKET VALU E (HEREIN AFTER REFERRED TO AS F.M.V.) OF THE LAND SOLD BEFORE ADOPTING THE STAMP DUTY VALUATION AS DEEMED SALE CONSIDERATION BY INVOKING THE PROVISIONS OF SEC.50C OF THE ACT. THE LD.CIT(A) DID NOT FIND MERIT IN THE SUBMISSION MADE ON BEH ALF OF THE ASSESSEE. ACCORDING TO HIM, THE ASSESSEE HAVING NOT OBJ ECTED SPECIFICALLY TO THE STAMP DUTY VALUATION, IT WAS NOT INCUMBENT UPON THE ASSE SSING OFFICER TO REFER THE MATTER OF RELAXATION OF THE LAND SOLD TO THE DEPART MENTAL VALUATION OFFICER (HEREINAFTER REFERRED TO AS THE D.V.O.) BEFORE APPLYING THE PROVISIONS OF SEC.50C OF THE ACT. HE ACCORDINGLY CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT O F LONG TERM CAPITAL GAINS AND DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 08.08.2019. AGGRIEVED BY THE ORDER OF LD.CIT(A), THE ASSESSE E HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE, A SPECIFIC OBJECTION WAS RAISED BY THE ASSE SSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER TO THE STAMP DUTY VALUATION SOUGHT TO BE ADOPTED BY THE ASSESSING OFFICER A S DEEMED SALE CONSIDERATION BY POINTING OUT THAT THE LAND SOLD BY HIM W AS UNDER THE RESERVATION FOR STREET AND RAILWAY TRACK AND THE SAME THEREFORE WAS SOLD AT LOW 4 ITA NO.1563/PUN/2019 COST. SINCE THIS SPECIFIC OBJECTION WAS RAISED BY THE ASS ESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER CHA LLENGING THE STAMP DUTY VALUATION SOUGHT TO BE ADOPTED BY THE ASSESSING O FFICER AS DEEMED SALE CONSIDERATION, I AM OF THE VIEW THAT IT WAS MANDATORY ON THE PART OF THE ASSESSING OFFICER TO REFER THE MATTER TO THE D.V.O. FOR DETE RMINING THE F.M.V. OF THE LAND SOLD BY THE ASSESSEE. EVEN THE LD. D.R. HAS NOT RAISED ANY CONTENTION IN THIS REGARD AND SUBMITTED THAT THE MATTER CAN BE SE NT BACK TO THE ASSESSING OFFICER FOR MAKING SUCH REFERENCE TO THE D.V.O. I ACCORDINGL Y SET ASIDE THE IMPUGNED ORDER PASSED BY LD.CIT(A) ON THIS ISSUE AND RESTO RE THE MATTER TO THE FILE OF ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER GE TTING THE F.M.V. OF THE ASSESSEES LAND DETERMINED BY THE D.V.O. BY MAKING A SPECIFIC REFERENCE TO HIM. NEEDLESS TO OBSERVE THAT THE ASSESSING OFFICER SHALL A FFORD PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFOR E DECIDING THIS ISSUE AFRESH. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 24 TH DAY OF NOVEMBER, 2020. SD/- ( P.M. JAGTAP ) VICE PRESIDENT / PUNE; / DATED : 24 TH NOVEMBER, 2020. YAMINI 5 ITA NO.1563/PUN/2019 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-8, PUNE. 4. THE PR.CIT-5, PUNE. 5 . , , / DR, ITAT, SMC PUNE; 6. ! / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.