Smt. Y.Hameeda Banu, Bellary V. ACIT-Circle-1, Bellary

ITA 1681/BANG/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7671 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 21-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI
• Assessee Lawyers: K MALLAHARAO
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Principle of natural justice; Valuation report
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 1681/BANG/2016 ASSESSMENT YEAR : 2008-09 SMT. Y. HAMEEDA BANU, 192/A, M.V. NAGAR, LEFT 4 TH CROSS, KAPPAGAL ROAD, BELLARY. PAN: AEWPB 8400R VS. THE ASSISTANT COMMISSIONER OF INCOME- TAX, CIRCLE 1 FORT BELLARY, BELLARY. APPELLANT RESPONDENT APPELLANT BY : SHRI K. MALLAHARAO, ADVOCATE RESPONDENT BY : SMT. PADMA MEENAKSHI, JCIT (DR) DATE OF HEARING : 17.08.2017 DATE OF PRONOUNCEMENT : 24.08.2017 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIRE CTED AGAINST THE ORDER OF THE LD. CIT (A), GULBARGA DATED 19.08.2016 FOR ASSE SSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. ITA NO. 1681/BANG/2016 PAGE 2 OF 4 1. ON THE FACTS IN THE CIRCUMSTANCE OF THE CASE. TH E ORDER OF THE CIT (A) IS NOT MAINTAINABLE IN LAW AND LIABLE T O BE SET ASIDE. 2. ON THE FACTS IN THE CIRCUMSTANCE OF THE CASE, TH E CIT (A) OUGHT TO HAVE APPRECIATED THAT, THE APPELLANT DECLA RED THE ACTUAL SALE CONSIDERATION WHICH WAS RECEIVED AGAINS T THE SALE OF THE PROPERTY AND SAME WAS DECLARED AS SALE CONSIDERATION, THUS THE SECTION 50C OF THE ACT IS N OT APPLICABLE IN THE CASE OF THE APPELLANT. THUS ORDER OF THE CIT (A) IS NOT CORRECT. 3. ON THE FACTS IN THE OF THE CIRCUMSTANCE CASE. TH E CIT (A) OUGHT TO HAVE APPRECIATED THAT, THE ASSESSING AUTHO RITY ADOPTED THE SR VALUATION AND ON STAMP DUTY PAID AMO UNT AGAINST THE APPELLANT ACTUAL SALE CONSIDERATION DEC LARED AND LEVIED TAX IS AGAINST THE LAW HENCE THE DISMISSAL O RDER OF CIT(A) IS ALSO AGAINST THE LAW. 4. ON THE FACTS IN THE CIRCUMSTANCE OF CASE. THE CI T(A)OUGHT TO HAVE APPRECIATED THAT, THE AFFIDAVIT FILED BY TH E APPELLANT AND REQUESTED FOR THE REFER TO THE DEPARTMENT VALUA TION REPORT FOR THE CALCULATION OF THE CAPITAL GAINS. BU T WITHOUT CONSIDERING THE AFFIDAVIT AND NOT REFERRING TO THE VALUATION REPORT AND DISMISSED THE APPEAL FILED BY THE APPELL ANT IS AGAINST NATURAL JUSTICES. 5. ON THE FACTS IN THE OF THE CIRCUMSTANCE CASE. TH E CIT (A) OUGHT TO HAVE APPRECIATED THAT, THE APPELLANT WAS N OT ACCEPTED THE ASSESSMENTS ORDER. THUS THE APPELLANT HAD FILED THE APPEAL BEFORE THE CIT (A) AND REQUESTED F OR THE DEPARTMENT VALUATION REPORT UNDER THE ACT WITHOUT CONSIDERING THE AFFIDAVIT AND WITHOUT REFERRING FOR VALUATION REPORT AND DISMISSED THE APPEAL IS AGAINST THE PRIN CIPAL OF NATURAL JUSTICES. 6. ON THE FACTS IN THE OF THE CIRCUMSTANCE CASE. TH E CIT (A) OUGHT TO HAVE APPRECIATED THAT, THE CIT (A) RELIED JUDGMENTS WHICH ARE DISTINGUISHABLE OF THE APPELLANT FACT OF THE CASE, THUS THE RELIED JUDGMENTS AND PASSED ORDER IS NOT C ORRECT. 7. WITHOUT PREJUDICE, THE LEARNED COMMISSIONER APPE AL ERRED IN CONFIRMING THE TAX AND INTEREST LEVIED U/S.234B, OF THE ACT. 8. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL THE APPELLANT PRAYS T HAT THE APPEAL MAY BE ALLOWED. ITA NO. 1681/BANG/2016 PAGE 3 OF 4 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT NO REQU EST WAS MADE BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW TO REFER THE MATTER TO THE DVO FOR VALUATION U/S. 50C(2) OF IT ACT BUT AS PER THE TRIB UNAL ORDER RENDERED IN THE CASE OF ITO VS. M/S. ADITYA NARAIN VERMA [HUF] IN ITA NO. 4166/DEL/2013 DATED 07.06.2017, IT WAS HELD THAT NO N COMPLIANCE OF PROVISIONS OF SECTION 50C(2) CANNOT BE HELD VALID A ND JUSTIFIED. HE SUBMITTED A COPY OF THIS TRIBUNAL ORDER AND SUBMITT ED THAT THE TRIBUNAL HAD FOLLOWED THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF DR. SHASHI KANT GARG VS. CIT AS REPORTE D IN 285 ITR 158 WHEREIN IT WAS HELD THAT IT IS WELL SETTLED THAT IF UNDER THE PROVISIONS OF ACT, AN AUTHORITY IS REQUIRED TO EXERCISE POWERS OR TO DO AN ACT IN A PARTICULAR MANNER, THEN THAT POWER HAS TO BE EXERCI SED AND THE ACT HAS TO BE PERFORMED IN THAT MANNER ALONE AND NOT IN ANY OT HER MANNER. IT WAS SUBMITTED THAT AS PER THIS TRIBUNAL ORDER, THE ISSU E SHOULD GO BACK TO THE FILE OF THE AO FOR FRESH DECISION AFTER OBTAINING R EPORT FROM DVO U/S. 50C(2) OF THE IT ACT. THE LD. DR OF REVENUE SUPPOR TED THE ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND RESPECT FULLY FOLLOWING THE TRIBUNAL ORDER CITED BY THE LD. AR OF THE ASSESSEE RENDERED IN THE CASE OF ITO VS. M/S. ADITYA NARAIN VERMA [HUF] (SUPRA), I S ET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF A O FOR FRESH DECISION ITA NO. 1681/BANG/2016 PAGE 4 OF 4 WITH THE DIRECTION THAT HE SHOULD OBTAIN VALUATION REPORT FROM DVO U/S 50C (2) AND THEN DECIDE THE ISSUE AFRESH AFTER AFFO RDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN VIE W OF THIS DECISION, NO ADJUDICATION IS CALLED FOR ON MERIT AT THIS STAGE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF AUGUST, 2017. SD/- (A.K. GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 24 TH AUGUST, 2017. / MS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.