Astik Mondal, Durgapur V. I.T.O.,Ward-1(4), Durgapur

ITA 1803/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1150 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-02-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 30-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANUPAM KR DEY
• Keywords: Salary income; Opportunity of being heard; Cost of acquisition; Fair market value; Valuation report; Competent authority; Set aside
• Section: 143(1); 148

Judgement Text

ITA NO. 1803/KOL/2019 ASSESSMENT YEAR: 2012-2013 ASTIK MONDAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 1803/KOL/2019 ASSESSMENT YEAR: 2012-2013 ASTIK MONDAL,...................................... ...................................APPELLANT D-114, SHASTRI AVENUE, SECTOR-2B, BIDHANNAGAR, DURGAPUR-713212 [PAN: AEAPM6216Q]] -VS.- INCOME TAX OFFICER,................................ ................................RESPONDENT WARD-1(4), DURGAPUR, AAYAKAR BHAWAN ANNEXE, 4 TH FLOOR, AAYAKAR BITHI, CITY CENTRE, DURGAPUR-713216 APPEARANCES BY: SHRI SUMIT GHOSH, ADVOCATE & SHRI ANUPAM KR. DEY, A DVOCATE, FOR THE APPELLANT SHRI JAYANTA KHANRA, JCIT, SR. D.R., FOR THE RESPON DEN T DATE OF CONCLUDING THE HEARING : FEBRUARY 20, 2020 DATE OF PRONOUNCING THE ORDER : MAY 29, 2020 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), DURGAPUR DATE D 17.05.2019 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS.12,84,245/- MADE BY THE ASSESSING OFFICER AND CO NFIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF LONG-TERM CAPITAL GAIN. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O RIGINALLY ON 05.09.2012 DECLARING TOTAL INCOME OF RS.4,80,516/-. THE SAID RETURN WAS INITIALLY PROCESSED BY THE ASSESSING OFFICER UNDER SECTION 143(1) OF THE ACT ON 19.08.2013. SUBSEQUENTLY IT WAS, HOWEVER, NO TICED DURING THE ITA NO. 1803/KOL/2019 ASSESSMENT YEAR: 2012-2013 ASTIK MONDAL 2 COURSE OF SCRUTINY PROCEEDINGS OF SHRI SAMARESH MON DAL, BROTHER OF THE ASSESSEE FOR A.Y. 2012-13 THAT THE SAID SHRI SAMARE SH MONDAL AND ASSESSEE HAD JOINTLY SOLD THE IMMOVABLE PROPERTY OW NED BY THEM DURING THE YEAR UNDER CONSIDERATION AND BOTH OF THEM HAD F AILED TO DECLARE THE SAID TRANSACTION IN THEIR RETURNS OF INCOME FILED F OR THE YEAR UNDER CONSIDERATION. IT WAS ALSO NOTICED THAT THE PROPORT IONATE SHARE OF THE ASSESSEE OUT OF THE TOTAL MARKET VALUE OF THE IMMOV ABLE PROPERTY AS CERTIFIED BY THE STAMP VALUATION AUTHORITY WAS RS.1 3,02,661/-. ON THE BASIS OF THIS INFORMATION, THE ASSESSMENT OF THE AS SESSEE FOR THE YEAR UNDER CONSIDERATION WAS REOPENED BY THE ASSESSING O FFICER AND A NOTICE UNDER SECTION 148 WAS ISSUED BY HIM AFTER RECORDING THE REASONS. IN RESPONSE TO THE SAID NOTICE, THE RETURN OF INCOME W AS FILED BY THE ASSESSEE DECLARING TOTAL INCOME OF RS.5,54,325/-, W HICH WAS COMPRISING OF INCOME FROM SALARY AND INCOME FROM OTHER SOURCES. I N THE COMPUTATION OF TOTAL INCOME, THE ASSESSEE UNDER THE HEAD CAPITAL GAIN HAD SHOWN HIS SHARE IN THE SALE CONSIDERATION OF THE IMMOVABLE PR OPERTY AT RS.13,02,661/- AND AFTER DEDUCTING THE INDEXED COST OF ACQUISITION CLAIMED AT RS.16,88,927/-, LONG-TERM CAPITAL LOSS O F RS.3,86,266/- WAS SHOWN. WHILE EXAMINING THE INDEXED COST OF ACQUISIT ION AMOUNTING TO RS.16,88,927/- CLAIMED BY THE ASSESSEE, THE ASSESSI NG OFFICER FOUND THAT THE FAIR MARKET VALUE OF THE PROPERTY AS ON 01.04.1 981 WAS TAKEN BY THE ASSESSEE AT RS.16,550/- PER COTTAH ON THE BASIS OF ONE SALE INSTANCE DATED 29.03.1980. ACCORDING TO THE ASSESSING OFFICER, THE SAID SALE INSTANCE RELIED UPON BY THE ASSESSEE BELONGED TO DIFFERENT A REA AND EVEN THE DATE OF THE SAID SALE INSTANCE ON 29.03.1980 WAS MUCH BE FORE 01.04.1981. HE, THEREFORE, REFERRED THE PROPERTY OF THE ASSESSEE FO R VALUATION TO THE COMPETENT AUTHORITY AND IN THE VALUATION REPORT SUB MITTED TO THE ASSESSING OFFICER, THE COMPETENT AUTHORITY DETERMIN ED THE FAIR MARKET VALUE OF THE ASSESSEES PROPERTY AS ON 01.04.1981 A T RS.10,913/- PER ACRE. BY ADOPTING THE SAID VALUATION, THE INDEXED COST OF ACQUISITION OF THE PROPERTY WAS WORKED OUT BY THE ASSESSING OFFICER AT RS.18,416/- AND AFTER DEDUCTING THE SAME FROM THE ASSESSEES SHARE OF SALE CONSIDERATION ITA NO. 1803/KOL/2019 ASSESSMENT YEAR: 2012-2013 ASTIK MONDAL 3 AMOUNTING TO RS.13,02,661/-, LONG-TERM CAPITAL GAIN OF RS.12,84,245/- WAS ASSESSED BY THE ASSESSING OFFICER IN THE HANDS OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3)/147 OF TH E ACT VIDE AN ORDER DATED 27.12.2016. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 147/143(3) OF THE ACT, AN APPEAL WAS PREFERRED BY T HE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE IN SUPPORT OF HIS CASE ON THE ISSUE UNDER CONSIDERATION RELATING TO THE ADDITION MADE BY THE ASSESSING OFFICER ON AC COUNT OF LONG-TERM CAPITAL GAIN WAS NOT FOUND ACCEPTABLE BY HIM, THE L D. CIT(APPEALS) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R ON ACCOUNT OF LONG- TERM CAPITAL GAIN. BEING AGGRIEVED, THE ASSESSEE HA S PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ONLY DISPUTE INVOLVED IN THE ASS ESSEES CASE RELATES TO THE DETERMINATION OF THE INDEXED COST OF ACQUISITIO N OF THE ASSESSEES SHARE OF PROPERTY SOLD DURING THE YEAR UNDER CONSID ERATION. HE HAS SUBMITTED THAT THE FAIR MARKET VALUE OF THE PROPERT Y AS ON 01.04.1981 WAS CLAIMED BY THE ASSESSEE ON THE BASIS OF ACTUAL SALE INSTANCE OF THE COMPARABLE PROPERTY BUT THE SAME WAS NOT ACCEPTED B Y THE ASSESSING OFFICER, WHO ADOPTED THE FAIR MARKET VALUE OF THE P ROPERTY AS ON 01.04.1981 ON THE BASIS OF THE VALUATION MADE BY TH E DEPARTMENTAL VALUATION OFFICER (DVO). HE HAS CONTENDED THAT THE COPY OF THE DVOS VALUATION REPORT, HOWEVER, WAS NEVER GIVEN BY THE A SSESSING OFFICER TO THE ASSESSEE AND EVEN THE OBJECTIONS RAISED BY THE ASSESSEE IN RESPECT OF THE VALUATION DETERMINED BY THE DVO BEFORE THE LD. CIT(APPEALS) WERE NOT PROPERLY CONSIDERED BY HIM. HE HAS CONTENDED THAT E VEN THE SALE INSTANCES RELIED UPON BY THE ASSESSEE TO JUSTIFY TH E FAIR MARKET VALUE OF THE PROPERTY AS ON 01.04.1981 TAKEN BY HIM WERE NOT PROPERLY ITA NO. 1803/KOL/2019 ASSESSMENT YEAR: 2012-2013 ASTIK MONDAL 4 APPRECIATED EITHER BY THE ASSESSING OFFICER OR BY T HE LD. CIT(APPEALS). HE HAS CONTENDED THAT A SIMILAR ISSUE INVOLVED IN THE CASE OF CO-OWNER SHRI SAMARESH KUMAR MONDAL, BROTHER OF THE ASSESSEE, HAS ALREADY BEEN SENT BACK BY THE TRIBUNAL TO THE ASSESSING OFFICER FOR R ECONSIDERATION VIDE ITS ORDER DATED 27.06.2018 PASSED IN ITA NO. 1276/KOL/2 017 AND URGED THAT THE CASE OF THE ASSESSEE MAY ALSO BE SENT TO THE AS SESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER TAKING INTO CONSIDER ATION THE OBJECTIONS RAISED BY THE ASSESSEE. A PERUSAL OF THE ORDER OF T HE TRIBUNAL DATED 27.06.2018 PASSED IN THE CASE OF SAMARESH KUMAR MON DAL, HOWEVER, SHOWS THAT A SIMILAR ISSUE INVOLVED IN THE SAID CAS E IN THE IDENTICAL FACTS AND CIRCUMSTANCES WAS REMITTED BY THE TRIBUNAL BACK TO THE LD. CIT(APPEALS) FOR FRESH ADJUDICATION. I, THEREFORE, FIND IT JUST AND PROPER TO SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS ) AND REMIT THE MATTER BACK TO HIM FOR DECIDING THE SAME AFRESH AFTER GIVI NG THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD AND AFTER TAKING INTO CONSIDERATION THE OUTCOME OF THE DECISION IN THE CA SE OF SHRI SAMARESH KUMAR MONDAL ON A SIMILAR ISSUE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 29, 2020. SD/- (P.M. JAGTAP) VICE- PRESIDENT) KOLKATA, THE 29 TH DAY OF MAY, 2020 COPIES TO : (1) SHRI ASTIK MONDAL, D-114, SHASTRI AVENUE, SECTOR-2B, BIDHANNAGAR, DURGAPUR-713212 (2) INCOME TAX OFFICER, WARD-1(4), DURGAPUR, AAYAKAR BHAWAN ANNEXE, 4 TH FLOOR, AAYAKAR BITHI, CITY CENTRE, DURGAPUR-713216 ITA NO. 1803/KOL/2019 ASSESSMENT YEAR: 2012-2013 ASTIK MONDAL 5 (3) COMMISSIONER OF INCOME TAX (APPEALS), DURG APUR; (4) COMMISSIONER OF INCOME TAX- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.