SHIRAZ S. KISHINCHANDANI, MUMBAI V. ITO WD 19(3)(4), MUMBAI

ITA 1845/MUM/2012

• Counselvise Citation: 184519914 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 24-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 16-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MADHUK
• Assessee Lawyers: DEEPAK N KAN ABAR
• Keywords: Sale consideration of property below Jantri Value; Additional evidence
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI . , , , BEFORE SHRI D. KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDI CIAL MEMBER . / ITA NO. 1845 /MUM./ 2012 ( / ASSESSMENT YEAR : 20 0 6 07 ) MRS. SHIRAJ S. KISHINCHANDANI 21, VEENA BEENA OPP. BANDRA RLY. STN. BANDRA (W), MUMBAI 400 050 .. / APP ELLANT V/S IN COME TAX OFFICER WARD - 19 ( 3 ) - 4 , PIRAMAL CHAMBERS LOWER PAREL, MUMBAI 400 013 .... / RESPONDENT ./ PERMANENT ACCOUNT NUMBER AAPPK3131M / ASSESSEE BY : MR. DEEPAK N. KAN ABAR / REVENUE BY : MR. S.K. MADHUK / DATE OF HEARING 2 4 .0 9 .2013 / DATE OF ORDE R 30.09.2013 / ORDER , / PER AMIT SHUKLA , J.M. THE PRESENT APPEAL IS PREFERRED BY THE ASSESSEE , CHALLENGING THE IMPUGNED ORDER DATED 1 ST DECEMBER 2011 , PASSED BY THE LEARNED COMMISSIONER (APPEALS) X X X, MUMBAI, FOR THE QUANTUM OF ASSESSMENT MRS. SHIRAJ S. KISHINCHANDANI 2 PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE AC T') FOR THE ASSESSMENT YEAR 200 7 08 . IN THE ORIGINAL GROUND OF APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS : I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN NOT GIVING RELIEF FOR LONG TERM CAPITAL GAIN. 2. THEREAFTER, THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND OF APPEAL WHICH, INTER ALIA, READS AS UNDER: I) THE APPELLANT PRAYS THAT THE COPY OF THE REGISTERED SALE DEED BETWEEN THE ASSESSEE AS ONE OF THE JOINT SELLERS AND THE PURCHASERS BE CONSIDERED F OR PURPOSE OF COMPUTING LONG TERM CAPITAL GAIN ON SALE OF PROPERTY FOR THE PURPOSE OF PROVISIONS OF SECTION 50C. CONSEQUENTLY IT BE HELD THAT THE ASSESSEE BEING 50% OWNER OF THE PROPERTY IS LIABLE TO 50% OF THE STAMP VALUATION OF THE 48,02,292 I.E., 24,01, 146. ACCORDINGLY, THE COMPUTATION OF TAX LIABILITY IS AS PER APPENDIX A ATTACHED HERETO. 3. BESIDES THIS, THE ASSESSEE HAS ALSO FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULE, 1962, VIDE PE TITION DATED 18 TH MARCH 2013, WHEREIN THE ASSESSEE HAS ENCLOSED A COPY OF REGISTERED SALE DEED OBTAINED FROM BUYER AND HAS SUBMITTED THAT I T IS A VERY VITA PIECE OF EVIDENCE FOR THE PURPOSE OF ADJUDICATION OF THIS ISSUE. 4. THE BRIEF FACTS, AS NOTED BY THE L EARNED COMMISSIONER (APPEALS), ARE AS UNDER: BRIEFLY, STATED THE FACTS OF THE CASE ARE THAT THE APPELLANT HAS SOLD HER 50% SHARE IN THE OFFICE PREMISES AT 410, ARUN CHAMBERS, C.S. NO. 730 (PART) AND 731 (PART) OF MALABAR AND CUMBALLA DIVISON, TARDEO ROA D, MUMBAI - 400034 FOR A TOTAL CONSIDERATION OF RS. 26,70,000/ - . THE BUILT UP AREA OF THE SAID UNIT WAS 372 SQ.FT. THE AGREEMENT OF THE SAID PROPERTY WAS NOT REGISTERED. THIS BEING SO, THE A.O. ASKED THE APPELLANT TO FURNISH THE MARKET VALUE OF THE SAID PROP ERTY AS ON DATE OF SALE AS PER THE PROVISIONS OF MRS. SHIRAJ S. KISHINCHANDANI 3 SECTION 50C. THE APPELLANT IN HER SUBMISSION DATED 30 - 09 - 2008 MADE BEFORE THE A.O. STATED THAT SAID AGREEMENT WAS NOT REGISTERED. OTHER THAN THIS, NO DETAILS/SUBMISSION WERE FILED. SINCE, THE AGREEMENT WA S NOT REGISTERED, THE MARKET VALUE OF THE FLAT AS VALUED BY THE STAMP DUTY AUTHORITIES IS NOT AVAILABLE. THIS BEING SO, THE A.O. COMPUTED THE MARKET VALUE OF THE PROPERTY AS PER THE STAMP DUTY READY RECKONER. THE VALUE OF UNIT SOLD HAVING BUILT UP AREA O F 372 SQ. FT. WAS THEREFORE, COMPUTED AS ON 30 - 04 - 2005 ON THE BASIS OF STAMP DUTY READY RECKONER, 2005. THE COMPUTATION OF THE SAME IS AS UNDER: BUILT UP AREA OF THE FLAT = 372 SQ.FT MARKET RATES THE PROPERTY AS PER READY RECKONER = 2,12,000 PER SQ.MTR WHICH IS EQUIVALENT TO 2,12,000/10.76 = ` 19,702 PER SQ.FT. MARKET VALUE OF UNIT OF 372 SQ.FT. BUILT UP AREA = 19,702 * 372 ` 73,29,1144 5. THE LEARNED COMMISSIONER (APPEALS) TOO DISMISSED THE ASSESSEES APPEAL ON THE SAME REASONING IN THE FOLLOWING MAN NER: THUS, IT CAN BE SEEN FROM THE ABOVE, THAT THE MARKET VALUE OF THE FLAT WAS DETERMINED BY THE A.O. TO RS. 73,29,144/ - WHICH HAS BEEN TREATED AS THE SALE CONSIDERATI ON FOR THE PURPOSE OF LONG TERM CAPITAL GAIN ON THE TRANSFER OF THE SAID PROPERTY. TH E SHARE OF THE APPELLANT IS 50% AND THEREFORE, HER SHARE OF CONSIDERATION ON SALE OF PROPERTY COMES TO RS.36,64,572 . 6. BEFORE US, BY WAY OF ADDITIONAL GROUND AND ADDITIONAL EVIDENCE, ENTIRELY NEW CONTENTION HAS BEEN RAISED, WHICH GOES TO THE VERY ROOT OF THE ISSUE INVOLVED HERE. SINCE THIS ADDITIONAL GROUND AND ADDITIONAL EVIDENCE HAS A VITAL BEARING, WE ADMIT THE ADDITIONAL GROUND AS WELL AS THE ADDITIONAL EVIDENCE AND SET ASIDE THE ENTIRE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO CONSIDERATI ON AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH THE PROVISIONS OF LAW AFTER PROVIDING DUE AND E FFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THE IMPUGNED ORDER IS SET ASIDE AND THE ENTIRE MATER IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER FOR FRESH ASSESSMENT. MRS. SHIRAJ S. KISHINCHANDANI 4 7. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 3 0 TH SEPTEMBER 2013 ORDER PRONOUNCE D IN THE OPEN COURT ON 3 0 TH SEPTEMBER 2013 SD/ - . D. KARUNAKARA RAO ACCOUNTANT MEMBER SD/ - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 30 TH SEPTEMBER 2013 / COPY OF THE ORDER FORWARDED TO : (1) / THE ASSESSEE ; (2) / THE REVENUE; (3) ( ) / THE CIT(A ) ; (4) / THE CIT, MUMBAI CITY CONCERNED ; (5) , , / THE DR, ITAT, MUMBAI ; (6) / GUARD FILE . / TRUE C OPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI