Smt. Dulali Paul , Birbhum V. ITO, Ward - 2(3), Durgapur , Durgapur

ITA 1791/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0210 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 20-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Retrospective amendment; Cost of acquisition; Fair market value
• Section: 143(3); 50C; 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENCH KOLKATA BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI S. S. GODARA, JM ./I.T.A NO.1791/KOL/2018 ( [ [ / ASSESSMENT YEAR: 2013-14 SMT. DULALI PAUL DANGALPARA, P.O. SURI, DIST. BIRBHUM 731101. VS. ITO, WARD 2(3), DURGAPUR ./ ./PAN/GIR NO.: AFYPP 9079 F (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI MIRAJ D. SHAH, AR RESPONDENT BY : SHRI SUPRIYO PAL, JCIT, SR. DR / DATE OF HEARING : 27/11/2019 /DATE OF PRONOUNCEMENT : /12/2019 / O R D E R PER SHRI S. S. GODARA, JM THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013-14 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (A) - DURGAPUR DATED 24.05.2018 PASSED IN CASE NO.20/CIT(A)/DGP/2016-17 INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE ASSESSEE HAS RAISED THREE SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL CHALLENGING CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION MAKING LONG TERM CAPITAL GAIN ADDITION AFTER INVOKING SECTION 50C OF THE ACT QUA DIFFERENCE BETWEEN ACTUAL SALE PRICE AND STAMP PRICE OF CAPITAL ASSETS INVOLVING SUMS OF RS. 1,70,00,000/- AND RS. 17317157/- RESPECTIVELY. HER SECOND SUBSTANTIVE GROUND IS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN TAKING INDEXED COST OF ACQUISITION AS ON 01.04.1981 AS RS. 1,46,305/- THAN THAT CLAIMED AT HER BEHEST AS WELL AS DVOS REPORT AMOUNTING TO RS. I.T.A NO.1791/KOL/2018 SMT. DULALI PAUL PAGE | 2 1088077/- AND RS. 18,86,072/-; RESPECTIVELY. THE ASSESSEES THIRD AND LAST SUBSTANTIVE GRIEVANCE SEEKS TO REVERSE BOTH THE LOWER AUTHORITIES ACTION PARTLY ACCEPTED SECTION 54F DEDUCTION CLAIM OF RS. 64,35,000/- TO THE EXTENT OF RS. 50,80,721/- ONLY. THE LEARNED COUNSEL IS FAIR ENOUGH IN NOT PRESSING FOR ASSESSEES THIRD AND LAST SUBSTANTIVE GROUND. 3. WE NOW ADVERT TO THE ASSESSEES FORMER TWO SUBSTANTIVE GROUNDS. THERE IS NO DISPUTE ABOUT THE ASSESSEE TO HAVE SOLD HER CAPITAL ASSET IN THE NATURE OF A PLOT OF LAND MEASURING 17 BIGHAS ON 18.02.2013 FOR RS. 1.70 CRORES. ITS STAMP DUTY VALUE CAME TO BE RS. 1,73,17,157/-. THE ASSESSING OFFICER INVOKED SECTION 50C OF THE ACT TO ADD THE ABOVE STATED DIFFERENTIAL VALUE AMOUNTING TO RS. 3,17,157/- LAC IN HIS ASSESSMENT ORDER DATED 21.03.2016. THE CIT(A) HAS AFFIRMED THE ASSESSING OFFICERSS ACTION. THE ASSESSEES ONLY ARGUMENT DURING THE COURSE OF HEARING IS THAT THE IMPUGNED DISALLOWANCE IS VERY WELL WITHIN THE TOLERANCE MARGIN OF 5% AS PER SECTION 50C 3 RD PROVISO INSERTED BY THE FINANCE ACT, 2018 W.E.F. 01.04.2019. THE REVENUES CASE IS THAT THIS STATUTORY PROVISO APPLIES FROM WITHIN PROSPECTIVE EFFECT ONLY. WE FIND NO MERIT IN REVENUES FOREGOING ARGUMENT SINCE THIS TRIBUNALS CO-ORDINATE BENCHS DECISION IN ITA NO. 2351/KOL/2017 CHANDRA PRAKASH JHUNJHUNWALA VS DCIT 09.08.2019 HOLDS THE ABOVE PROVISO TO BE APPLICABLE WITH RETROSPECTIVE EFFECT BEING DECLARATORY AND CURATIVE IN NATURE. WE GO BY THE VERY REASONING HEREIN AS WELL TO ACCEPT THE ASSESSEES FIRST AND FOREMOST SUBSTANTIVE GRIEVANCE. 4. NEXT COMES THE SECOND ISSUE OF COST OF ACQUISITION FOR THE PURPOSE OF INDEXATION OF THE ASSESSEES CAPITAL ASSET AS ON 01.04.1981. THE ASSESSEE, THE DVO AND THE STATE LAND ACQUISITION COLLECTOR STATE THE SAME TO BE RS. 10,88,077/-, RS. 18,86,072/- AND RS. 1,46,305/- RESPECTIVELY. THE REVENUES CASE AS PER BOTH THE LOWER AUTHORITIES FINDINGS IS THAT THE STATE LAND ACQUISITION COLLECTORS REPORT HAS BEEN RIGHTLY ADOPTED AS CORRECT FOR THE PURPOSE OF THE IMPUGNED INDEXATION SINCE THE FORMER TWO PRICE(S) DO NOT SATISFY THE RELEVANT PARAMETERS OF LOCATION OF I.T.A NO.1791/KOL/2018 SMT. DULALI PAUL PAGE | 3 PROPERTY, AREA SOLD AS WELL AS ALL THE OTHER FACTORS. WE SEE NO REASON TO ACCEPT THE REVENUES ARGUMENT. SECTION 50C MAKES IT CLEAR THAT APART FROM MAKING REFERENCE TO THE DVO FOR DETERMINING FAIR MARKET VALUE OF A CAPITAL ASSET SOLD, THERE IS NO OTHER OPTION WITH THE ASSESSING OFFICER. CASE LAW CIT VS INDRA SWAROOP BHATNAGAR (2012) 349 ITR 210 (ALL.) ALSO HOLDS THAT A DVOS REPORTS IN SECTION 50C PROCEEDINGS IS VERY MUCH BINDING ON THE ASSESSING OFFICER. WE ACCORDINGLY ARE OF THE VIEW THAT BOTH THE LOWER AUTHORITIES HAS ERRED IN LAW AS WELL AS ON FACTS IN ADOPTING THE SAID LAND ACQUISITION OFFICERSS REPORT STATING COST OF ACQUISITION OF THE ASSESSEES CAPITAL ASSET AT RS. 1,46,305/- ONLY. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO GO BY THE DVOS REPORT ONLY AND FINALISED NECESSARY COMPUTATION AS PER LAW. THIS SECOND SUBSTANTIVE GROUND IS ALLOWED IN ABOVE TERMS. 5. THIS ASSESSSEES APPEAL IS PARTLY ALLOWED IN ABOVE TERMS. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.12.2019. SD/- ( J. SUDHAKAR REDDY ) SD/- (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER /KOLKATA; / DATE: 31/12/2019 (BISWAJIT, SR.PS) / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA 1. THE APPELLANT - SMT. DULALI PAUL. 2. THE RESPONDENT- ITO, WARD-2(3), DURGAPUR. 3. ( ) / THE CIT(A), KOLKATA [SENT THROUGH EMAIL] 4. / CIT 5. , , / DR, ITAT, KOLKATA [SENT THROUGH EMAIL] 6. [ / GUARD FILE.