M/s. Anandtara Properties, Pune V. Deputy Commissioner of Income-tax, Circle - 14, Pune

ITA 1814/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0558 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Principle of natural justice
• Section: 43CA

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.1814/PUN/2018 / ASSESSMENT YEAR : 2015-16 M/S. ANANDTARA PROPERTIES, 133-ANANDTARA VILLA MUNDHWA ROAD, PUNE-411036. PAN : AANFA5208P . /APPELLANT VS. DCIT, CIRCLE-14, PUNE. . / RESPONDENT / APPELLANT BY : SHRI KISHOR PHADKE / RESPONDENT BY : SHRI M. K. VERMA / DATE OF HEARING : 13.02.2019 / DATE OF PRONOUNCEMENT: 01.03.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-7, PUNE DATED 05.09.2018 FOR THE ASSESSMENT YEAR 2015-16. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1) THE LEARNED A.O. AND LEARNED CIT(A)-7, PUNE ERRED IN LAW AND ON FACTS IN MAKING ADDITION AMOUNTING TO RS.18,76,957/- U/S 43CA OF ITA, 1961 AND THEREBY ASSESSING TOTAL INCOME OF THE ASSESSEE TO THE TUNE OF RS.38,25,517/- AS AGAINST RETURNED INCOME OF RS.19,48,560/-. 2) THE LEARNED A.O. AND LEARNED CIT(A)-7, PUNE ERRED IN LAW AND ON FACTS IN MAKING ADDITION AMOUNTING TO RS.18,76,957/- ON ACCOUNT OF DIFFERENCE BETWEEN STAMP DUTY & AGREEMENT VALUE U/S 43CA OF ITA, 1961 WITHOUT APPRECIATING FACT THAT, SAID DIFFERENCE IS LESS THAN 5% TO 10% OF STAMP DUTY VALUE IN MOST OF THE INSTANCES. 3) THE LEARNED IT AUTHORITIES ERRED IN LAW AND ON FACTS IN INVOKING THE PROVISIONS OF SECTION 43CA OF ITA, 1961 AND MAKING ADDITION WITHOUT SUBSTANTIATING FACT THAT, APPELLANT IS IN RECEIPT OF CONSIDERATION HIGHER THAN AGREEMENT VALUE. 4) WITHOUT PREJUDICE TO GROUND NO.1 TO 3, THE LEARNED IT AUTHORITIES ERRED IN LAW AND ON FACTS IN NOT REFERRING THE MATTER TO DVO BEFORE MAKING ADDITION U/S 43CA OF ITA, 1961. 5) APPELLANT CRAVES LEAVE TO ADD / MODIFY / AMEND / DELETE ALL / ANY OF THE GROUNDS OF APPEAL. ITA NO.1814/PUN/2018 - 2 - 3. BRIEFLY STATED THE RELEVANT FACTS INCLUDE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND ITS RELATED ACTIVITIES. THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.19,48,560/-. IN THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT SOME OF THE FLATS WERE SOLD AT THEIR PRICE, LESS THAN THE STAMP DUTY VALUE. THE ASSESSING OFFICER INVOKING THE PROVISIONS OF SECTION 43CA OF THE ACT ADOPTED THE SAID REGISTRATION PRICES IN PLACE OF SALE AGREEMENT VALUE. ACCORDINGLY, THE ASSESSING OFFICER MADE ADDITION OF RS.18,76,957/-. THE SAID ADDITION WAS CONFIRMED BY THE CIT(A) AND DISMISSED THE APPEAL OF THE ASSESSEE. IN THESE BACKGROUNDS OF FACTS, LD. COUNSEL FOR THE ASSESSEE FILED THE PRESENT APPEAL WITH THE ABOVE EXTRACTED GROUNDS OF APPEAL. 4. AT THE OUTSET, LD. COUNSEL SUBMITTED THAT THIS IS A CASE WHERE THE APPEAL WAS ADJUDICATED BY THE CIT(A) EX-PARTE . REFERRING TO GROUND NO.1 TO 4, LD. COUNSEL SUBMITTED THAT INCOME TAX AUTHORITIES FAILED TO REFER THE MATTER TO THE DVO. IT IS ALLEGATION OF THE CIT(A) THAT THE NOTICES ISSUED ON VARIOUS DATES. HOWEVER, THE ASSESSEE DID NOT COMPLY WITH THE SAID NOTICES OF HEARING. HOWEVER, THERE IS NO EVIDENCE THE SAID NOTICE WAS SERVED ON THE ASSESSEE ON 30.08.2018. WITHIN A WEEK FROM THE SAID DATE OF LAST NOTICE, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT INTIMATING THE ASSESSEE TO RESPOND IN ANY MANNER. 5. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 6. ON HEARING BOTH THE SIDES, I FIND THIS IS A CASE WHERE THE SAID FLATS (STOCK-IN-TRADE) WERE NOT REFERRED TO THE DVO FOR DEMONSTRATING THE VALUES STATED BY THE STAMP DUTY AUTHORITIES. IT IS THE DEMAND OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW THAT THE MATTER NEEDS TO BE REFERRED TO THE DVO WHICH WAS NOT DONE AT THE END OF THE APPELLATE PROCEEDINGS. HOWEVER, IT IS ITA NO.1814/PUN/2018 - 3 - A CASE WHERE THE CIT(A) HURRIEDLY COMPLETED THE APPEAL DISMISSING THE SAME WITHOUT HAVING THE ASSISTANCE OF THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE. CONSIDERING THE SAME, I AM OF THE OPINION, AS REQUESTED BY THE ASSESSEE, THE MATTER SHOULD BE REMANDED TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH THE SET PRINCIPLES OF NATURAL JUSTICE. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 01 ST DAY OF MARCH, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 01 ST MARCH, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-7, PUNE; 4. THE CCIT, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE