Dipanwita Bhowmik., Kolkata V. A.C.I.T.Cir-52/Kol., Kolkata

ITA 1788/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78415 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 05-12-2012
• Court: TRIBUNAL
• Department Lawyers: SANJAY MUKHERJEE JDIT
• Assessee Lawyers: SUBA SH AGARWAL ARS
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Question of law
• Section: 143(3); 50C

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND , ! ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SHAMIM YAHYA, AM] ' / I.T.A NO.1788/KOL/2012 #$ %&/ ASSESSMENT YEAR: 2005-06 DIPANWITA BHOWMIK VS. ACIT, CIR CLE 52/KOLKATA, 133/3 N.S.C.BOSE ROAD, FLAT NO.4B, 2, GARIAHAT RO AD (SOUTH) METRO SOUTH, KOLKATA 700 040 KOLKATA 700 068 (PAN: AVGPB 8306 N) (() /APPELLANT ) (*+()/ RESPONDENT ) DATE OF HEARING: 15.07.2014 DATE OF PRONOUNCEMENT: 17.07.2014 FOR THE APPELLANT: S/SHRI SOUMITRA CHOUDHURY & SUBA SH AGARWAL, ARS FOR THE RESPONDENT: SHRI SANJAY MUKHERJEE, JDIT, SR. DR / ORDER PER SHRI MAHAVIR SINGH, JM : THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(APPEALS)-XXXIII, KOLKATA IN APPEAL NO. 295/CIT(A)-XXXIII/ACIT CIRCLE-52, KOL/09 -10 DATED 03.09.2012. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-52, KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005- 06 VIDE HIS ORDER DATED 14.12.2007. 2. THE ONLY GROUND IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE LEVY OF PENALTY BY ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT FOR AN ADDITION OF RS.3.64 LAKH ON ACCOUNT OF DIFFERENCE BEING VALUE ADOPTED BY STAMP DUTY AUTHORITY AND SALE CONSIDERATION AS SHOWN BY THE ASSESSEE IN THE SALE DEED BY INVOKING THE PROVISIONS OF SEC.50C OF THE ACT. FOR THIS, ASSESSEE HAS RAISED VARIOUS GROUNDS, BUT ISSU E IS ONLY AS ABOVE. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DATED 14-12-2007. THE ASSESSEE, DURING THE YEAR UND ER CONSIDERATION SOLD HER SHARE OF PROPERTY SITUATED AT PATULI TO ONE SRI P.K. GUPTA FOR A TOTA L CONSIDERATION OF RS.17 LAKH. THIS SALE CONSIDERATION RECORDED IN THE SALE DEED WAS AT RS.1 7 LAKH BUT AS PER REGISTERED DEED THE STAMP 2 ITA NO. 1788/K/2012 DIPANWITA BHOWMIK AY 2005-06 AUTHORITY ASSESSED THE VALUE OF THE PROPERTY AT A T OTAL OF RS.20.64 LAKH. THE AO INVOKED THE PROVISIONS OF SEC. 50C OF THE ACT AND COMPUTED SHOR T TERM CAPITAL GAINS (STCG) AT RS.8,92,520/-. THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND ADDITION MADE BY AO ON ACCOUNT OF STCG OF RS.3.64 LAKH ON ACCOUNT OF TRANSACTION OF PATULI PROPERTY BY INVOKING THE PROVISIONS OF SEC. 50C OF THE ACT. THE AO LEVIED THE PENALTY AND CIT(A) CONFIRMED THE PENALTY ON THE AMOUNT OF RS.3.64 LAKH VIDE PARA-8 & 9 AS UNDER:- 8. IT IS TRUE, THAT PROVISIONS OF SECTION 50C ARE DEEMING PROVISIONS. HOWEVER, THEY ARE VERY CATEGORICAL AND UNAMBIGUOUS. IT HAS BEEN CLEAR LY PROVIDED THEREIN THAT IN ANY CASE OF TRANSFER OF LAND OR BUILDING WHERE THE CONSIDERA TION RECEIVED OR ACCRUED IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF S TATE GOVERNMENT FOR PURPOSE OF PAYMENT OF STAMP DUTY, THE VALUE SO ADOPTED OR ASSE SSED SHALL BE DEEMED TO BE FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUED. THE PLE A REGARDING NON-AWARENESS OF THE NEWLY INTRODUCED PROVISION IS ALSO NOT TENABLE. THE SAID PROVISION WAS INTRODUCED BY FINANCE ACT 2002, I.E., SEVERAL YEARS BACK AND WAS NOT SO RECENT AT THAT TIME, AS PLEADED BY THE APPELLANT. ALSO, THE APPELLANT, BEING ENGAGE D IN BUSINESS, WAS HAVING ACCOUNTANT AND TAX PROFESSIONAL FOR ADVICE IN THE MATTER. THUS , THE APPELLANT HAS GIVEN NO ACCEPTABLE REASON FOR NOT APPLYING THE PROVISIONS O F SECTION 50C IN HER CASE. IT WAS WELL WITHIN HER KNOWLEDGE THAT THE CONSIDERATION FOR THE PROPERTY WAS LESS THAN THE SAME ADOPTED FOR PURPOSE OF STAMP AUTHORITY. HAD BEEN CA SE NOT COME UNDER SCRUTINY, THE AMOUNT OF DIFFERENCE BETWEEN THE CONSIDERATION (RS. 17,00,000/-) AND ASSESSED VALUE FOR THE PURPOSE OF STAMP DUTY (RS.20.64,000/-) WOULD HA VE ESCAPED FROM NET OF TAXATION IN ANY OF THE ASSESSMENT YEARS. THIS, IN MY OPINION, A MOUNTS TO CONCEALING AND FURNISHING INACCURATE PARTICULARS OF INCOME TO THE EXTENT OF R S.3,64,000/- (RS.20,64,000/- LESS THAN RS.17,00,000/-). 9. IN VIEW OF ABOVE DISCUSSION PENALTY IS CONFIRMED IN RESPECT OF ADDITION TO THE EXTENT OF RS.3,64,000/- AND DELETED FOR THE BALANCE AMOUNT. T HE ASSESSING OFFICER IS DIRECTED TO RE-COMPUTE AND REDUCE PENALTY ACCORDINGLY. AGGRIEVED, NOW ASSESSEE CAME IN APPEAL BEFORE US. 4. IT IS SEEN THAT PENALTY CONFIRMED BY CIT(A) IS A N ADDITION OF STCG OF RS.3.64 LAKH BEING THE DIFFERENCE BETWEEN SALE CONSIDERATION AS RECORDED IN THE SALE DEED AT RS.17 LAKH AND VALUE ASSESSED BY STAMP VALUATION AUTHORITY FOR THE PURPOSE OF STAMP DUTY AT RS.20.64 LAKH. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT V. MADAN THEATRES LTD. (2013) 260 CTR 75 (CAL), WHEREIN THE JURISDICTIONAL HIGH COURT DISMISSED THE REVENUES APPEAL CONSIDERING THE TRIBUNALS JUDGMENT BY OBSERVING AS UNDER:- 3. THE REVENUE PREFERRED AN APPEAL. THE LEARNED TR IBUNAL DISMISSED THE APPEAL HOLDING, INTER ALIA, AS FOLLOWS: 3 ITA NO. 1788/K/2012 DIPANWITA BHOWMIK AY 2005-06 THUS OBVIOUSLY, IT IS ONLY ON ACCOUNT OF DEEMING P ROVISIONS OF S. 50C, THE AO HAS MADE THE ADDITION BY ADOPTING THE SALE CONSIDER ATION OF RS.5,19,77,000, BEING THE VALUE ADOPTED FOR THE PURPOSE OF STAMP VA LUATION. THE REVENUE HAS ALSO NOT SHOWN AS TO HOW THE ASSESSEE COULD BE HELD TO HAVE ACTUALLY RECEIVED THIS AMOUNT WHICH IS IN EXCESS OF THE AMOUNT OF RS. 2,51,50,000. IT HAS ALSO NOT BEEN SHOWN AS TO WHETHER ANY CORRESPONDING ADDITION HAS BEEN MADE IN THE HANDS OF THE BUYER. IN ANY CASE, THE ISSUE IS ALSO NOW SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RENU HINGORANI (SUPRA). IN THE CIRCUMSTANCES, RESPECTFUL LY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RENU HINGORANI (SUPRA) AS ALSO ON ACCOUNT OF THE FACT THAT THE REVENUE HAS NO T BEEN ABLE TO DISLODGE THE FINDINGS OF THE LEARNED CIT(A) THAT THE BONA FIDES OF THE ASSESSEE ARE GENUINE, THE FINDINGS OF THE LEARNED CIT(A) STAND CONFIRMED. IN THE CIRCUMSTANCES, THE APPEAL OF THE REVENUE IS DISMISSED. 4. MR. NIAUMUDDIN, LEARNED ADVOCATE APPEARING FOR T HE REVENUE, CONTENDED THAT THE ASSESSEE HAD A CHOICE TO DISPUTE THE VALUATION ON T HE BASIS OF THE DEEMED VALUE, BUT THE ASSESSEE DID NOT TAKE THAT OPPORTUNITY. THE ASSESSE E HAD A CHOICE OR HE COULD HAVE LITIGATED. THE FACT REMAINS THAT THE ACTUAL AMOUNT RECEIVED WAS OFFERED FOR TAXATION. IT IS ONLY ON THE BASIS OF THE DEEMED CONSIDERATION THAT THE PROCEEDINGS UNDER S. 271(1) STARTED. THE REVENUE HAS FAILED TO PRODUCE ANY IOTA OF EVIDENCE THAT THE ASSESSEE ACTUALLY RECEIVED ONE PAISE MORE THAN THE AMOUNT SH OWN TO HAVE BEEN RECEIVED BY HIM. 5. WE ARE, AS SUCH, OF THE OPINION THAT THERE IS NO SCOPE TO ADMIT THE APPEAL SINCE THE SAME DOES (SIC.-NOT) RAISE ANY QUESTION OF LAW, SUB STANTIAL OR OTHERWISE. 5. IN THIS CASE ALSO, IT IS ONLY ON THE BASIS OF TH E DEEMED CONSIDERATION ADDED BY THE AO, THE PROCEEDINGS U/S 271(1)(C) OF THE ACT WAS INITIA TED. HENCE, IN THIS CASE LEVY OF PENALTY, THE ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE. RESPECTFULLY, FOLLOWING THE JUDGMENT OF HONBLE JURISDICTIONAL HI GH COURT IN THE CASE OF RENU HINGORANI (SUPRA), WE DELETE THE PENALTY WHICH CONFIRMED AND LEVIED BY LOWER AUTHORITIES. ACCORDINGLY, WE ALLOW THE APPEAL OF ASSESSEE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17.07.2 014. SD/- SD/- , ! , (SHAMIM YAHYA ) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 17TH JULY, 2014 4 ITA NO. 1788/K/2012 DIPANWITA BHOWMIK AY 2005-06 ,- #./ 0 DKP*P.S. 1 *2 3 2%4- COPY OF THE ORDER FORWARDED TO: 1 . () / APPELLANT DIPANWITA BHOWMIK, 1333/3, N.S.C.BOSE, ROAD, FLAT NO.4B, METRO SOUTH, KOLKATA-700 040 2 *+() / RESPONDENT ACIT, CIRCLE 52, 2, GARIAHAT ROAD (SO UTH) KOLKATA-68 3 . # ( )/ THE CIT(A), KOLKATA 4. 5. # / CIT KOLKATA 2:; *# / DR, KOLKATA BENCHES, KOLKATA +2 */ TRUE COPY, #