ITO 17(3)(3), MUMBAI V. PUSHPA TEXTILES, MUMBAI

ITA 1740/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2133 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 30-04-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 17-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Assessee Lawyers: RA JAN A RUVALA
• Keywords: Sale consideration of property below Jantri Value; Set aside
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI T.R. SOOD, (AM) ITA NO.1740/MUM/2009 ASSESSMENT YEAR : 2004-05 INCOME TAX OFFICER WARD 17(3)(3) ROOM NO.613, PIRAMAL CHAMBERS MUMBAI-400 012. ..( APPELLANT ) VS. M/S. PUSHPA TEXTILES 415, 4 TH FLOOR, BHUSA UDYOG BHAVAN T.J. MARG, SEWRI MUMBAI-400 015. ..( RESPONDENT ) P.A. NO. (AAEFP 5379 B) APPELLANT BY : SHRI SUMEET KUMAR RESPONDENT BY : SHRI RA JAN A. RUVALA O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 15.1.2009 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE F IRM IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORT OF READYMADE GARMENTS, FILED RETURN DECLARING TOTAL INCOME OF RS.48, 170/-. ON SCRUTINY OF DETAILS FILED IT WAS OBSERVED BY THE ASSESSING O FFICER THAT THE ASSESSEE FIRM HAS SOLD AN INDUSTRIAL GALA NO.316, BHUSSA UDYOG BHAVAN, T.J. ROAD, SEWREE, MUMBAI-400 015 FOR A TOT AL CONSIDERATION OF RS.7.00 LACS. HOWEVER, THE REGISTRATION/STAMP DUTY A UTHORITIES HAS ADOPTED THE VALUE AT RS.16,18,000/-. THE ASSESSEE WAS ASK ED TO ITA NO.1740/M/09 A.Y:04-05 2 EXPLAIN THE DIFFERENCE IN THE VALUATION ADOPTED. IN RESPONSE THE ASSESSEE FILED COPY OF SALE AGREEMENT AND INTERALIA STATED THAT THE MATTER MAY BE REFERRED TO THE VALUATION OFFICER AS PR OVIDED IN SUB- SECTION(2) OF SECTION 50C. THE ASSESSING OFFICER WHILE OBSE RVING THAT THE ASSESSEE'S EXPLANATION TO REFER THE MATTER TO THE VA LUATION OFFICER CANNOT BE ACCEPTED SINCE THE ONUS IS ON THE ASSESSEE TO PROVE THE CORRECTNESS OF THE VALUE ADOPTED BY THE ASSESSEE FIRM ON SAL E OF INDUSTRIAL GALA AND THE VALUE ADOPTED BY STAMP DUTY OFFICE IS WRONG, WORKED OUT THE DIFFERENCE OF RS.9,18,000/- AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE, AND THEREBY COMPLETED THE ASSESSMENT AT AN INCOME OF RS.9,66,100/- VIDE ORDER DATED 26.12.2006 P ASSED U/S.143(3) OF THE I.T. ACT, 1961(THE ACT). 3. ON APPEAL, THE LD. CIT(A) KEEPING IN VIEW THE P ROVISIONS OF SUB SECTION (2) OF SECTION 50C DIRECTED THE ASSESSING OFFICER TO REFER THE VALUATION TO THE DEPARTMENTAL VALUATION OFFICER (DVO ) AND ADOPT THE VALUE AS ASCERTAINED BY THE DVO AS PER PROVISION OF THE ACT AND ACCORDINGLY ALLOWED THE APPEAL. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE REVENUE IS IN APPEAL BEFORE US CHALLENGING THE DIRECTION OF THE LD. CIT(A) IN DIRECTING THE ASSESSING OFFICER TO REFER THE MATTER TO THE DVO. 5. AT THE TIME OF HEARING THE LD. DR SUPPORTS THE OR DER OF THE ASSESSING OFFICER. 6. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE WH ILE RELYING ON THE ORDER OF THE LD. CIT(A) ALSO RELIED ON THE DE CISION OF THE TRIBUNAL IN MEGHRAJ BAID VS. ITO (2008) 4 DTR (JD.)(TRIB.) 5 09 AND SHRI ABBAS T. RESHAMWALA VS. ITO IN ITA NO.3093/MUM/09 FOR ASSESSME NT YEAR ITA NO.1740/M/09 A.Y:04-05 3 2006-07 ORDER DATED 30.11.2009. HE ALSO FILED THE COP Y OF THE SAID ORDERS OF THE TRIBUNAL. 7. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RIVAL P ARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THA T THERE IS NO DISPUTE THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS CLA IMED THAT THE MATTER MAY BE REFERRED TO THE VALUATION OFFICER IN TERMS OF THE PROVISIONS OF SUB SECTION (2) OF SECTION 50C OF THE ACT. HOWEVER, THE AO DID NOT ACCEPT THE ASSESSEE'S REQUEST. ON APPEAL, THE L D. CIT(A) AFTER CONSIDERING THE RELEVANT PROVISIONS OF THE ACT D IRECTED THE ASSESSING OFFICER TO REFER THE VALUATION TO THE VALUATIO N OFFICER AND ADOPT THE VALUE AS ASCERTAINED BY THE DVO. 8. IN MEGHRAJ BAID (SUPRA), AND SHRI ABBAS T. RESHA MWALA (SUPRA), RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE IT HAS BEEN CONSISTENTLY HELD THAT IN CASE THE ASSESSING OFFICER DOES NOT AGREE WITH THE EXPLANATION OF THE ASSESSEE, HE SHOULD REFER THE MAT TER TO THE DVO UNDER SUB SECTION (2) OF SECTION50C OF THE ACT. 9. RECENTLY THE TRIBUNAL IN SHRI SUNILKUMAR R. AGAR WAL VS. ACIT IN ITA NOS.7514 & 7515/MUM/2007 FOR THE ASSESSMENT YEARS 200 3-04 AND 2004-05 RESPECTIVELY ORDER DATED 5.4.2010 IN WHI CH ONE OF US (JM) WAS A PARTY SET ASIDE THE SIMILAR MATTER TO THE FILE OF THE ASSESSING OFFICER TO REFER THE SAME TO THE VALUATION OFFICER AS P ROVIDED UNDER SUB SECTION (2) OF SECTION 50C OF THE ACT AND TO DECIDE T HE ISSUE ACCORDING TO LAW. 10. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE OR CONT RARY DECISION BROUGHT ON RECORD BY THE REVENUE WE RESPECTFULLY FOLLO WING THE CONSISTENT VIEW OF THE TRIBUNAL HOLD THAT THE LD. CIT( A) WAS FULLY ITA NO.1740/M/09 A.Y:04-05 4 JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO REFER THE VALUATION TO THE DEPARTMENTAL VALUATION OFFICER AND ADOPT THE VALUE A S ASCERTAINED BY THE DVO AS PER PROVISIONS OF THE ACT AND ACCORDINGLY THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. 11. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.5.2010. SD/- SD/- (T.R. SOOD) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 14.5.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 30.4.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 3.5.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 14.5.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 17.5.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER