DCIT, Circle - 2, Siliguri, Siliguri V. M/s. Sunflower Nirman (P) Ltd., Siliguri

ITA 1618/KOL/2010

• Counselvise Citation: 161823514 RSA 2010
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 13-08-2010
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: S K TULSIYAN
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ,, , , . .. .!' !'!' !'. .. . , , , , #$ ] ]] ] [BEFORE HONBLE SRI B.R.MITTAL, JM & HONBLE SRI C. D. RAO, AM] & & & & /ITA NO.1616/KOL/2010 '( )*/ ASSESSMENT YEAR : 2007-08 (,- / APPELLANT ) - ' - ( /0,- /RESPONDENT) D.C.I.T., CIRCLE-1, SILIGURI -VERSUS- M/S.JYOTI E LECTRICAL PVT.LTD. (PAN:AABCJ 3668 D) & & & & /ITA NO.1617/KOL/2010 '( )*/ ASSESSMENT YEAR : 2007-08 (,- / APPELLANT ) - ' - ( /0,- /RESPONDENT) D.C.I.T., CIRCLE-1, SILIGURI -VERSUS- AMIT BHANSA LI (PAN:AIBPB 2259 D & & & & /ITA NO.1618/KOL/2010 '( )*/ ASSESSMENT YEAR : 2007-08 (,- / APPELLANT ) - ' - ( /0,- /RESPONDENT) D.C.I.T., CIRCLE-2, SILIGURI -VERSUS- M/S.SUNFLOW ER NIRMAN (P)LTD (PAN:ABBFS 3994 B) ,- 1 2 #/ FOR THE APPELLANT: SHRI S.K.ROY /0,- 1 2 #/ FOR THE RESPONDENT: SHRI S.K.TULSIYAN #3 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ), , , , #$ PER SHRI C.D.RAO, AM THE ABOVE APPEALS ARE FILED BY THE REVENUE AGAINST SEPARATE ORDERS DATED 23/02/2010, 14/05/2010 AND 22/02/2010 RESPECTIVELY OF THE CIT(A)-SILIGURI PERTAINING TO A.YR. 2007-08. 2. THERE IS A DELAY OF 56 DAYS IN FILING OF TH E APPEAL BY THE REVENUE FOR WHICH THE REVENUE HAS FILED A CONDONATION PETITION EXPLAINING THE REASONS FOR SUCH DELAY. AFTER CONSIDERING THE SUBMISSIONS BY THE REVENUE THE DELA Y IS CONDONED. 2 3. THE REVENUE HAS RAISED THE FOLLOWING COMMON GRO UNDS OF APPEAL IN RESPECT OF ALL THE THREE ASSESSEE : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A), SILIGURI WAS JUSTIFIED IN LAW IN DELETING THE ADDITION OF RS .34,13,000/- WITHOUT CONSIDERING THE FACT THAT THE AO HAD MADE THE ADDIT ION U/S 69B OF THE I.T.ACT ON THE VALUE DETERMINED BY THE STAMP VALUATION AUTH ORITY. THE ASSESSEE HAD ACCEPTED THE VALUATION MADE BY THE ADDL.DISTRICT SU B REGISTRAR AND PAID STAMP DUTY ON SUCH ENHANCED VALUATION AND AS SUCH HAD FAI LED TO POINT OUT ANY MISTAKE IN THE VALUE DETERMINED BY STAMP VALUATION AUTHORITY. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A),SILIGURI HAS ERRED IN IGNORING THE DECISION IN THE CASE OF S MT. AMAR KUMARI SURANA VS CIT (226 ITR 344) WHERE THE HONBLE HIGH COURT OF R AJASTHAN HAS HELD THAT EVEN IN SPITE OF SPECIFIC QUERY, THE ASSESSEE FAIL ED TO POINT OUT ANY MISTAKE/LACUNA IN ASCERTAINING THE VALUE OF THE PLO T OF LAND BY THE VALUER. IN THESE CIRCUMSTANCES, THE ONLY REASONABLE INFERENCE THAT CAN BE DRAWN IS THAT THE ASSESSEE HAS SHOWN LESS AMOUNT IN THE ACCOUNT I N THE ACCOUNT BOOKS AND SALE DEED THAN THE ACTUAL CONSIDERATION PAID. CONSI DERING THE COMPARABLE CASES AND THE FACTS OF THE CASE, WE FIND NO GROUND TO INTERFERE IN THE ADDITION MADE U/S 69B OF THE ACT, 1961. 4. AT THE TIME OF HEARING BOTH THE PARTIES CONCEDE D THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE VIDE IT(SS)A.NO.30/KOL/2009 IN THE CASE OF DCIT CIRCLE- 2,SILIGURI VS DR.R.K.AGARWAL, SILIGURI DATED 23.12. 2009. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON PERUS AL OF MATERIALS AVAILABLE ON RECORD IT IS OBSERVED THAT THIS TRIBUNAL HAS DECIDE D THE SAME ISSUE IN FAVOUR OF THE ASSESSEE VIDE IT(SS)A.NO.30/KOL/2009 IN THE CASE OF DCIT,CIRCLE-2, SILIGURI VS DR.R.K.AGARWAL, SILIGURI DATED 23.12.2009. THE OBSE RVATIONS OF THE LD. CIT(A) IN ITS ORDER AT PAGE 5 ARE AS UNDER :- I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE ASSESSEE AND ALSO PERUSED THE ASSESSMENT ORDER. WHILE MAKING THE ADDI TIONS U/S 69B OF THE ACT, THE LD. AO MAINLY RELIED ON THE DECISION IN THE CAS E OF SMT. AMAR KUMARI SURANA VS CIT (SUPRA). BUT THERE WERE FACTUAL DIFFE RENCE BETWEEN THE TWO CASES AS POINTED OUT BY THE ASSESSEE IN HIS SUBMISSION. I N THAT CASE, THE AO RELIED ON THE VALUATION MADE BY THE DVO AND THE OPPORTUNITY W AS GIVEN TO THE ASSESSEE TO EXPLAIN THE INADEQUATE PURCHASED CONSIDERATION P AID TO ACQUIRE THE PROPERTY. AT THE SAME TIME, THE AO ALSO FOUND THAT THE COST O F THE ADJACENT PROPERTY OF THE AREA WAS MUCH HIGHER AND THE ASSESSEE FAILED TO EXPLAIN THE DIFFERENCE BETWEEN THE TWO VALUE. BUT IN THE PRESENT CASE IN APPEAL, THE LD. AO RELIE D ON THE VALUE OF THE PROPERTY ADOPTED BY THE STAMP VALUATION AUTHORITY F OR THE PURPOSE OF 3 REGISTRATION. THE VALUATION ADOPTED BY SVA IS APPLI CABLE FOR THE PURPOSE OF CAPITAL GAIN, AS PRESCRIBED U/S 50C OF THE ACT WHIC H HAS VERY LIMITED PURPOSE. THIS LEGAL FICTION HAS BEEN CREATED FOR COMPUTATION OF CAPITAL GAIN ONLY IN CASE OF THE SELLER OF ANY ASSET. THE SAME CANNOT BE EXTE NDED IN CASE OF THE PURCHASER TO ESTIMATE THE UNDISCLOSED INVESTMENT. THE DECISIO NS IN CASES OF CIT VS. MOTHER INDIA REFRIGERATION INDUSTRIES P LTD. (1985) 48 CTR (SC) 176 AND CIT VS AMARCHAND N.SHROFF (1963) 48 ITR 59 (SC) ARE APP LICABLE IN THIS CASE. SECONDLY, THE REFERENCE OF THE CASE OF CRADLE COMPU TER P LTD IS OF NO RELEVANCE IN THE PRESENT CASE IS CONCERNED. THE UND ERHAND DEALING IN CASE OF TRANSFER OF PROPERTY IS NOT UNKNOWN. FOR THAT PURPO SE, THE SEC.50C HAS BEEN INTRODUCED. THE INSTANCE OF CRADLE COMPUTERS IS NOT DOUBT WAS A GOOD GROUND FOR MAKING FURTHER INVESTIGATION. BUT NO ENQUIRY WA S CONDUCTED BY THE LD. AO IN THE INSTANT CASE. THEREFORE, USING THAT RATIO IN CASE OF ANOTHER ASSESSEE AMOUNTS ONLY TO ACT ON SURMISE. WHILE MAKING ASSESS MENT, THERE IS NO SCOPE OF ANY SUSPICION AND SURMISE. THIRDLY, IN A NUMBER OF CASES DIFFERENT COURTS HELD THAT THE PROVISIONS OF SEC. 50C ARE APPLICABLE ONLY IN THE CASE OF A SELLE R AND THE RATE DETERMINED BY THE STAMP VALUATION AUTHORITY CANNOT BE APPLIED AS THE INVESTMENT MADE BY THE PURCHASERS (REF. ITO VS OPTEC DISC MANUFACTURING (2 008) 11 DTR (CHD) (TRIB) 264; ITO VS SATYA NARAYAN AGARWAL (2007) 112 TTJ (JD) 717. IN VIEW OF THE AFORESAID LEGAL POSITION AND FACT OF THE CAS E, IT IS HELD THAT THE DECISION CITED BY THE LD. AO CANNOT BE APPLIED IN THIS CASE. ON THE OTHER HAND, THE ITAT IN THE CASE OF DCIT VS DR R K AGARWAL IN ITAT (SS) A NO.30/KOL/2009 HAS TAKEN SIMILAR VIEW. THEREFORE, THE ADDITION MADE U/ S 69B BASED ON THE VALUE ADOPTED BY SVA CANNOT BE SUSTAINED. THE ADDITION OF THE AO, IS DELETED. SINCE THE LD. CIT(A)S ORDERS ARE IN CONFORMITY WIT H THE ORDERS OF THE TRIBUNAL WE FIND NO INFIRMITY IN THE SAID ORDERS AND FIND NO MERITS OF THE REVENUE. THEREFORE WE DISMISS THE SAME AND UPHOLD THE ORDERS OF THE LD. CIT(A). 6. IN THE RESULT THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.07.2011. SD/- SD/- [ .., ] [ .!'., #$ ] [ B.R.MITTAL ] [ C. D. RAO ] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( ('$ '$ '$ '$) )) ) DATE: 26.07.2011. R.G.(.P.S.) 4 #3 1 /4 5#4)6- COPY OF THE ORDER FORWARDED TO: 1. M/S.JYOTI ELECTRICAL PVT. LTD., SEVOKE ROAD, SILIGU RI 2 AMIT BHANSALI, SEVOKE ROAD, SILIGURI 3. M/S.SUNFLOWER NIRMAL (P) LTD., GHANSHYAM BUILDING, BURDWAN ROAD, SILIGURI 4 . D.C.I.T., CIRCLE-1/2, SILIGURI 5. CIT, KOLKATA 6. CIT(A), SILIGURI 7. CIT (DR), KOLKATA 04 // TRUE COPY, #3':/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES