Income-tax Officer, V. Smt. leena Alekar, Pune

ITA 1838/PUN/2013

• Counselvise Citation: 183824514 RSA 2013
• Duration Of Justice: 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: S N DOSHI
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Fair market value; Valuation report
• Section: 133(6)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1838/PN/2013 (ASSESSMENT YEAR : 2008-09) ITO, WARD-2(3), PUNE .. APPELLANT VS. SMT. LEENA ALEKAR, 40/34, BHONDE COLONY, KARVE ROAD, PUNE-411004 PAN NO. AANPA3565D .. RESPONDENT ASSESSEE BY : SHRI S.N. DOSHI DEPARTMENT BY : SHRI P.S. NAIK DATE OF HEARING : 17-09-2014 DATE OF PRONOUNCEMENT : 17-09-2014 ORDER PER R.S. PADVEKAR, JM : THIS APPEAL IS FILED BY THE REVENUE CHALLENGING THE IMPUGNED ORDER OF THE LD.CIT(A)-II, PUNE DATED 30-04-2013 FO R THE A.Y. 2008- 09. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS : (1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE HOLDING THAT REFERENCE TO DVO CAN BE MADE U/S.55A(A) ONLY WHEN THE FAIR MARKE T VALUE DISCLOSED BY ASSESSEE WAS NOT BASED UPON APPROVED V ALUER'S REPORT. (2) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSING AUT HORITY WOULD BE QUITE COMPETENT TO CALL FOR THE REPORT ON THE VALUA TION OF THE PROPERTY FROM THE DVO IN VIEW OF THE PROVISION OF S ECTIONS 131, 133(6) AND 142(2) OF THE ACT AS THESE ARE THE ENABL ING MACHINERY PROVISIONS WHICH VEST AMPLE POWERS IN THE ASSESSING AUTHORITY AND ANY WRONG MENTION OF PROVISIONS ON TH E REQUISITION MEMO WILL NOT BE MATERIAL. RELIANCE IS PLACED ON TH E DECISION OF HON. HIGH COURT OF GAUHATI IN THE CASE OF CIT VS. A MIYA BALA PAUL, 240 ITR 378. (3) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AME ND ANY OR ALL THE GROUNDS OF APPEAL. 2 2. FACTS WHICH ARE REVEALED FROM THE RECORD ARE AS UNDER. THE ASSESSEE, ON THE DEATH OF HER MOTHER, OWNED THE PRO PERTY I.E. PLOT SITUATED AT 538, GHORPADE PETH, PUNE. 77. THE ASSE SSEE SOLD THE SAID PLOT ON 19-12-2007 FOR RS.2,14,11,250/-. HOWEVER IT 'S STAMP DUTY VALUE WAS RS.2,56,50,000/-. THE ASSESSEE CONSIDERE D THE STAMP VALUE AS FULL VALUE OF CONSIDERATION FOR THE PURPOSE OF C ALCULATING THE LONG TERM CAPITAL GAIN. IN ORDER TO ARRIVE AT COST OF ACQUISITION AND AS THE SAID PROPERTY WAS OWNED BY THE PREVIOUS OWNER PRIOR TO 1-4-1981 THE ASSESSEE OBTAINED THE VALUATION OF THE SAID PLOT AS OF 1-4-1981. THE SAID VALUATION IS DONE BY AN APPROVED VALUER MR. D. M BHANAP. 2.1 THE APPROVED VALUER VALUED THE SAID PROPERTY AT RS.86,27,348/- AS OF 1-4-1981. ON ITS INDEXATION TH E INDEXED COST OF ACQUISITION CAME TO BE RS.4,75,36,687/-. THIS RESUL TED INTO THE LONG TERM CAPITAL LOSS OF RS.2,21,00,799/-. THE ASSESSING OFFICER HOWEVER FOUND THAT THE VALUE AS OF 1-4-1981 CERTIFIED BY TH E APPROVED VALUER IS QUITE HIGH. HE THEREFORE MADE THE REFERENCE TO THE DVO, SOLAPUR U/S 55A OF THE INCOME TAX ACT 1961 FOR DETERMINING THE FAIR MARKET VALUE AS OF 1-4-1981. THE DVO THEREUPON SENT HIS VALUATIO N REPORT AND HE ESTIMATED THE FMV AT RS28,15,000/- AS ON 1-4-1981. THE ASSESSING OFFICER ADOPTED THIS VALUATION FOR THE PURPOSE OF A RRIVING AT THE LONG TERM CAPITAL GAIN AND WITH INDEXATION THE LONG TERM CAPI TAL GAIN IS ASSESSED AT RS 99,25,238/-. 2.2 THE ASSESSEE OBJECTED TO THE REFERENCE MADE BY THE AO TO THE VALUATION MADE U/S.55A OF THE ACT FOR DETERMINING T HE FAIR MARKET VALUE OF THE ASSESSEE AS ON 01-04-1981. THE CONTENTION OF T HE ASSESSEE IS THAT UNDER SECTION 55A OF THE I.T. ACT, REFERENCE CAN BE MADE ONLY IF THE VALUATION SHOWN BY THE ASSESSEE IS LESS THAN THE MARKET VALUE . IN THE PRESENT CASE, THE VALUATION OF THE ASSESSEE AS PER THE REGISTERED VALUER REPORT IS AT RS.86,27,348/- WHICH IS ADMITTEDLY HIGHER THAN THE VALUATION REPORT OF THE 3 DVO WHO HAS WORKED OUT THE FAIR MARKET VALUE OF THE PROPERTY AS ON 01-04- 1981 AT RS.28,15,000/-. THE LD.CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE FOLLOWING THE DECISIONS IN THE CASE OF HON BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. DAULAL MOHTA (HUF) 360 ITR 6 80 AND ALLOWED THE CLAIM OF THE ASSESSEE AND HELD THAT ON THE FACTS OF THE A SSESSEES CASE, THERE WAS NO JUSTIFICATION FOR THE AO TO MAKE REFERENCE U/S.5 5A TO THE DVO. NOW THE REVENUE BEING AGGRIEVED IS IN APPEAL BEFORE US. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . WE FIND THAT THE ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSE SSEE BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF DAULAL MOH TA (HUF) (SUPRA) AS WELL AS ANOTHER DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. PUJA PRINTS 360 ITR 697. WE THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD.CIT(A) WHICH IS IN CONFORMITY W ITH THE LAW LAID DOWN BY THE JURISDICTIONAL HIGH COURT. ACCORDINGLY, THE GR OUNDS TAKEN BY THE REVENUE ARE DISMISSED. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 17-09-2014. SD/- SD/- (G.S.PANNU) (R.S. PADV EKAR) ACCOUNTANT MEMBER JUDICIAL MEM BER PUNE DATED: 17 TH SEPTEMBER 2014 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-II, PUNE 4. CIT-II, PUNE 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER //TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE