Neetu Anand , Secunderabad V. Income Tax Officer, Ward-15(1), Hyderabad

ITA 1754/Hyd/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3202 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 29-04-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 29-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Retrospective amendment; Fair market value; Valuation report
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 1754/HYD/18 2013-14 SMT.NEETU ANAND, SECUNDERABAD [PAN: ADZPA0299D] INCOME TAX OFFICER, WARD-15(1), HYDERABAD 1755/HYD/18 2013-14 SRI TARUN ANAND, SECUNDERABAD [PAN: ACVPA4637N] FOR ASSESSEE : SMT. S.SANDHYA, AR FOR REVENUE : SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING : 29-04-2021 DATE OF PRONOUNCEMENT : 15-06-2021 O R D E R PER S.S.GODARA, J.M. : THESE ASSESSEES APPEALS FOR AY.2013-14 ARISE FROM THE CIT(A)-7, HYDERABADS ORDER DATED 18-07-2018 PASSED IN CASE NOS.0425 & 0426/CIT(A)-7/2016-17, IN PROCEEDINGS U/S.143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]. HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. WE NOTICE AT THE OUTSET THAT THE ASSESSEES IDENTICAL SOL E SUBSTANTIVE GRIEVANCE RAISED IN BOTH THE INSTANT APPEALS CHALLENGES CORRECTNESS OF THE LOWER AUTHORITIES ACTION; AND ITA NOS. 1754 & 1755 /HYD/2018 :- 2 -: MORE PARTICULARLY OF THE ASSESSING OFFICER MAKING LON G TERM CAPITAL GAIN ADDITION OF RS.2,51,71,267/- AND RS.2,78,81,306/- AS PER THE DVOS REPORT AFTER INVOKIN G SECTION 50C OF THE ACT. THE ASSESSEES CASE IS THAT THE CORRESPONDING CAPITAL ASSET(S) TRANSFERRED IN THE IMPU GNED ASSESSMENT YEARS INVOLVE MANY DISTRESSING FACTORS SUCH AS HUGE UNEVEN TRACTS OF LAND, REFUSAL OF BUILDING PER MISSION THEREUPON FROM MUNICIPAL AUTHORITIES ALONGWITH OTHER SI MILAR ANCILLARY ISSUES. 3. THE REVENUES CASE ON THE OTHER HAND IS THAT THE DVO S VALUATION REPORT(S) HAS CONSIDERED ALL THE RELEVANT FA CTS BEFORE DETERMINING THE IMPUGNED FAIR MARKET VALUE OF THE ASSES SEES CAPITAL ASSET(S) AND THEREFORE, THEIR GRIEVANCE CARRIE S NO SUBSTANCE. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE RIV AL PLEADINGS AGAINST AND IN SUPPORT OF THE IMPUGNED LONG TERM CAPITAL GAIN ADDITION. SUFFICE TO SAY, THERE IS HARDLY ANY DISPUTE ABOUT ASSESSEE HAVING TRANSFERRED HER CAPITAL A SSET(S) U/S.2(47) OF THE ACT. THE PRECISE ISSUE BEFORE US IS THAT OF FAIR MARKET VALUE THEREOF WHEREIN THE REVENUE HAS GONE BY TH E DVOS VALUATION AS AGAINST THE ASSESSEES PLEADINGS S TRONGLY SUPPORTING THE IMPUGNED ACTUAL SALE CONSIDERATION(S). LEARNED COUNSEL FAILED TO REBUT THE CLINCHING FACT THAT THESE ASSESSEES HAD NOT EVEN FILED THEIR OBJECTION(S) B EFORE THE ASSESSING OFFICER DURING THE COURSE OF SCRUTINY AGAI NST THE DVOS VALUATION WHICH COULD BE TAKEN AS THE FOUNDATION OF THEIR RESPECTIVE GRIEVANCES. THE FACT ALSO REMAINS THAT THE LEGISLATURE ITSELF HAS INSERTED SECTION 50C(1) 3 RD PROVISO VIDE ITA NOS. 1754 & 1755 /HYD/2018 :- 3 -: FINANCE ACT, 2018 W.E.F.01-04-2019 ACCEPTING SUCH A DIFFERENCE @5% BETWEEN ACTUAL AND STAMP PRICE(S); SU BSTITUTED BY 10% VIDE FINANCE ACT, 2020 W.E.F.01-04-2021; RESP ECTIVELY. THIS TRIBUNALS RECENT CO-ORDINATE BENCHS DECISION I N SMT.CHERYL MARIA FERNANDES VS. ITO DT.15-01-2021 ITA NO.4850/MUM/2019 (AY.2011-12) HOLDS THE SAME TO BE CARRYING RETROSPECTIVE EFFECT BEING A CURATIVE ONE. WE , HOWEVER, SEE NO REASON TO APPLY THE VERY REASONING; AT LEAST MUTATIS MUTANDIS , HEREIN IN ENTIRETY SINCE THE FOREGOING TOLERANCE MARGIN OF EITHER 5 OR 10% COULD NOT BE TAKEN AS A STA NDARD DEDUCTION IN EACH AND EVERY CASE. FACED WITH THIS SITUATION, WE DEEM IT APPROPRIATE THAT ATLEAST SOME MITIGATING CIRCUMSTANCES CAN CERTAINLY BE INFERRED IN DVOS VALUATION WHICH IS ALWAYS A SUBJE CTIVE ISSUE REQUIRING CONSIDERATION OF ALL THE CORRESPONDING FACTS . WE KEEP IN MIND ALL THESE ASPECTS OF THE ISSUE AND HOLD THAT TH E ASSESSEES DESERVE 8% RELIEF IN THE DVOS VALUATION IN THEIR RESPECTIVE CASES AS PER THUMB RULE SUBJECT TO THE CONDI TION THAT THE SAME SHALL NOT BE TAKEN AS A PRECEDENT IN ANY OTH ER CASE. NECESSARY COMPUTATION TO FOLLOW AS PER LAW. ORD ERED ACCORDINGLY. 5. THESE ASSESSEES APPEALS ARE PARTLY ALLOWED. A C OPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FI LES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 15-06-2021 TNMM ITA NOS. 1754 & 1755 /HYD/2018 :- 4 -: COPY TO : 1.SMT.NEETU ANAND, 5-B, SHAILI GARDENIA COLONY, YAP RAL, SAINIKPURI, SECUNDERABAD. 2. SHRI TARUN ANAND, 5-B, SHAILI GARDENIA COLONY, Y APRAL, SAINIKPURI, SECUNDERABAD. 3.THE INCOME TAX OFFICER, WARD-15(1), HYDERABAD. 4.CIT(APPEALS)-7, HYDERABAD. 5.PR.CIT-7, HYDERABAD. 6.D.R. ITAT, HYDERABAD. 7.GUARD FILE.