Mrs. Jiviben Taljibhai Rabari, Harij V. ITO, Ward-3, Patan

ITA 1592/AHD/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 0446 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Ahmedabad
• Assessment Year: 2012-2013
• Appeal Filed On: 25-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRIHEMAL DESAI
• Keywords: Sale consideration of property below Jantri Value; Valuation report
• Section: 50C; 48; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD (through web-based video conferencing platform) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT ITA No. 1592/Ahd/2018 Assessment Year :2012-13 Mrs. Jiviben Taljibhai Rabari, At. Boratwada, Tal. Harij PAN : CLQPD 7447 D Vs. Income Tax Officer, Ward-3, Patan अपीलाथ牸 अपीलाथ牸अपीलाथ牸 अपीलाथ牸/ (Appellant) 灹瀄 य 灹瀄 य灹瀄 य 灹瀄 यथ牸 थ牸थ牸 थ牸/ (Respondent) Assessee by : ShriHemal Desai, CA Revenue by : Shri V.K. Singh, Sr. DR सुनवाई क琉 तारीख सुनवाई क琉 तारीखसुनवाई क琉 तारीख सुनवाई क琉 तारीख/Date of Hearing : 05/01/2022 घोषणा क琉 तारीख /Date of Pronouncement: 07/01/2022 आदेश आदेशआदेश आदेश/O R D E R The assessee is in appeal before the Tribunal against the order of learned Commissioner of Income-Tax (Appeals), Gandhinagar, Ahmedabad [“CIT(A)” in short] dated 05.09.2016 passed for Assessment Year 2012-13. 2. The Registry has pointed out that the appeal of the assessee is time barred by 22 days. The assessee has filed an application for condonation of delay. On due consideration of the application of the assessee as also considering the reason that the assessee had not received the order of Commissioner of Income Tax (Appeals) well in time as mentioned in the application, I deem it fit and proper to condone the marginal delay of 22 days in filing of the appeal before the Tribunal. I, therefore, condone the delay and proceed to decide the appeal on merits. 3. The assessee has taken five grounds of appeal; but her grievances revolve around a single issue viz. the learned Revenue Authorities have erred in determining the capital gain on sale of properties. 4. The brief facts of the case are that a non-agricultural land situated at Survey No.193/3, Harij was sold by 9 co-owners, including the assessee. SMC-ITA No. 1592/Ahd/2018 Mrs. JivibenTaljibhaiRabari Vs. ITO For AY: 2012-13 2 According to the sale deed, this land was sold for a consideration of Rs.25,00,000/-. However, for the purpose of stamp duty valuation, this value was taken at Rs.1,78,03,700/-. With the aid of Section 50C of Income-tax Act, 1961 (‘the Act’ in short), the learned Assessing Officer deemed full sale consideration at Rs.1,78,03,700/- for the purpose of calculating the Long Term Capital Gain under Section 48 of the Act. The assessee has disputed this assumption of sale consideration before the learned First Appellate Authority. The case of the assessee, on the other hand, is that in the case of other co- owners, a reference was made under Section 50C(2) of the Act to the Department Valuation Officer (DVO) and the DVO has given a remand report determining the value of the property on the date of sale at Rs.73,92,000/-. The learned First Appellate Authority dismissed the appeal of the assessee for the simple reason that no grounds have been annexed along with appeal, though she had pleaded in Form No.35 that grounds of appeal and statement of facts were separately annexed. 5. With the assistance of learned representatives, I have gone through the record carefully. The learned Counsel for the assessee has placed on record a copy of the remand report filed by the Assessing Officer in the case of other co- owners. Such copy of the remand report is available on page no.12 of the paper-book which read as under:- “Office of the Income-tax Officer, Ward- 3 PATAN, 1ST FLOOR CHINMAY CORPORATE HOUSE PATAN DEESA HIGHWAY. PATAN-384265 PH NO (02766V226260 No. PTN/ITO-Wd.3/Remand Report/2016-17 Date: 21.06.2016 To, The CIT(Appeal), Gandhinagar.; Pratyakshkar Bhawan, Ambawadi, Ahemdabad. SMC-ITA No. 1592/Ahd/2018 Mrs. JivibenTaljibhaiRabari Vs. ITO For AY: 2012-13 3 Sub: Remand report in case of Amartbhai T Rabari and others Ref: Your letter No.CIT(A)GNR/Remand Report/2016-17 dated- 01/09/2016 Kindly refer to the above subject matter and refer to the letter above. In this case the assessee has sold the land with co-owners. In connection to which the valuation report was called for during the assessment proceedings but as the assessee did not attended the notices for hearing for submission of detail. The valuation officer has reported that the valuation cannot be carried without inspecting the property in the presence of assessee. Hence the case is temporarily closed. The assessment is done taking the valuation as per Jantri value of Rs.1,73,03,700/-. The assessee went in appeal before the CIT(Appeal). The remand report in this connection is called for for fresh valuation of the property. The valuation report of the land in question of the assessee and his co- owners is called from the valuation officer vide this office letter dated 30/ 12/2016. In this regard the valuation officer has made the valuation and send the report. The valuation officer has valued the property at Rs. 73,92,000/-. The Xerox copy of valuation report is submitted herewith for your reference. The remand report is submitted herewith as called for in the following cases. 1) Amratbhai T. Rabari 2)Babubhai T. Rabari 3)Gagabhai T. Rabari 4)Sitaben T. Rabari 5)Jitaben T. Rabari 6)Jiviben T. Rabari 7)Ramesh T. Rabari 8)Jaliben T. Rabari 9)Jayrambhai T. Rabari. Sd/- (I.K.SIDDIQUI) Income-tax Officer, Ward-3, PATAN” 6. A perusal of the remand report would indicate that the Department Valuation Officer has determined the value of the property at Rs.73,92,000/-. This very value has been taken by the Income Tax Officer in the case of other co-owners. Therefore, I am of the view that the same yardstick should have been applied in the case of the assessee. As far as the findings of the learned CIT(A) is concerned, it is observed that the learned First Appellate Authority ought to have taken cognizance of the grievance of the assessee from the assessment order; and, in case of any defects, he should have specifically called the assessee for removal of such defects in the appeal. It is merely an irregularity which can be rectified, because Form No.35 has been filed by the SMC-ITA No. 1592/Ahd/2018 Mrs. JivibenTaljibhaiRabari Vs. ITO For AY: 2012-13 4 assessee. It is to be kept in mind that the quasi-judicial authorities are being respected not on account of their powers to legalize the injustice on technical ground but for their capabilities of removing injustice and are expected to do so. I fail to appreciate the steps taken by the First Appellate Authority in dismissing the appeal of an illiterate lady where in the cases of other co-owners a different treatment has been made. Rather, it is a case of suo-motu action for rectification at the end of the Assessing Officer; and, had that been taken, probably this litigation could be avoided. Therefore, I allow this appeal of the assessee and direct the Assessing Officer to re-compute the gain/loss, if any, if available in the hands of the assessee on sale of land situated at Survey No.193/3, Harij. The sale consideration shall be taken equivalent to the amount taken in the hands of other co-owners. 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 7 th January, 2022 at Ahmedabad. Sd/- (RAJPAL YADAV) VICE PRESIDENT Ahmedabad; Dated 07/01/2022 *Bt आदेश क琉 灹ितिलिप अ灡ेिषत आदेश क琉 灹ितिलिप अ灡ेिषतआदेश क琉 灹ितिलिप अ灡ेिषत आदेश क琉 灹ितिलिप अ灡ेिषत/Copy of the Order forwarded to : 1. अपीलाथ牸 / The Appellant 2. 灹瀄यथ牸 / The Respondent. 3. संबंिधत आयकर आयु猴 / Concerned CIT 4. आयकर आयु猴(अपील) / The CIT(A) 5. िवभागीय 灹ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड榁 फाईल / Guard file. आ आआ आदेशानुसार देशानुसारदेशानुसार देशानुसार/BY ORDER, TRUE COPY उप उपउप उप/सहायक सहायक सहायक सहायक पंजीकार पंजीकारपंजीकार पंजीकार (Dy./Asstt.Registrar) आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद / ITAT, Ahmedabad