Nilesh Bhawnani, Kolkata V. ITO, Ward - 32(3), Kolkata , Kolkata

ITA 193/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1181 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-09-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 07-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C J SINGH
• Assessee Lawyers: OM PRAKASH BAID; AMICHAND BAID
• Section: 56(2)(vii)(b); 143(3)

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 193 / KOL / 2018 ASSESSMENT YEAR :2014-15 NILESH BHAWNANI APARTMENT NO. 4H, 4 TH FLOOR, SUNRISE TOWERS, TOWER-II, 134B, BELIAGHATA ROAD, KOLKATA-700 015 [ PAN NO.AIAPB 3597 M ] V/S . INCOME TAX OFFICER, WARD-32(3), 10B, MIDDLETON ROW, 2 ND FLOOR, KOLKATA-700 071 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI OM PRAKASH. BAID, FCA & SHRI AMI CHAND BAID, AR /BY RESPONDENT SHRI C.J. SINGH, SR. DR /DATE OF HEARING 05-09-2019 /DATE OF PRONOUNCEMENT 13-09-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2014-15 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-9 KOLKATAS ORDER DATED 28.12.2017 PASSED IN CASE NO.301/CIT(A)-9/WD- 32(3)/2016- 17/KOL, INVOLVING PROCEEDINGS U/S 143(3) OF THE INC OME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO.193/KOL/2018 A.Y. 2014-15 NILESH BHAWNANI VS. ITO WD-32(3) KOL. PAGE 2 2. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE ASSESSEES SOLE SUBSTANTIVE GROUND CHALLENGES CORRECTNESS OF BOTH T HE LOWER AUTHORITIES ACTION MAKING SEC. 56(2)(VII)(B) ADDITION OF 5,74,548/- ON ACCOUNT OF DIFFERENCE IN SALE / PURCHASE CONSIDERATION OF THE PROPERTY AS PER THE AGREEMENT DATED 15.04.2012 AMOUNTING TO 50 LACS THE REGISTERED CONVEYANCE DEED EXECUTED ON 05.07.2013 FOR STAMP VA LUE OF 1,11,65,000/- AS AGAINST THE DVOS VALUATION COMING TO 55,74,548/-; RESPECTIVELY. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS AGAINST AND IN SUPPORT OF THE IMPUGNED ADDITION AS PER ASSESSEE AND REVENUES STANDS. IT EMERGES DURING THE CURSE OF HE ARING THAT THE ASSESSEE HAD PAID 20 LACS THROUGH CHEQUE NO.000050 DATED 04.04.2012 THROUGH HIS BANK OF INDIA ACCOUNT TO THE VENDOR CONCERNED AS EVIDENT FROM PAGE 57 IN THE PAPER BOOK FORMING P ART OF THE AGREEMENT DATED 15.04.2012 TO THIS EFFECT. THERE IS NO DISPU TE TO CORRECTNESS OF THIS CLINCHING ASPECT FROM THE REVENUE SIDE. WE THU S QUOTE SEC. 56(2)(VII)(B) CLAUSE-2 READ WITH FIRST AND SECOND P ROVISO THERETO MAKING IT CLEAR THAT THE FORMER ONE APPLIES TO ADOPT STAMP VA LUE ON THE DATE OF AGREEMENT IN CASE THE TRANSFER OF THE PROPERTY AND REGISTRATION ARE NOT THE SAME WHEREAS THE LATTER PROVISO MAKES IT EXPLIC ITLY CLEAR THAT FORMER SHALL APPLY ONLY IN A CASE WHERE THE AMOUNT OF CONS IDERATION REFER TO THEREIN, OR A PART THEREOF, HAS BEEN MADE BY ANY MO DE OTHER THAN CASH OR ON OR BEFORE THE DATE OF THE RELEVANT AGREEMENT. WE RE-EMPHASISE THAT THE ASSESSEES CHEQUE PAYMENT IS DATED 04.04.2 012. IT HAD ENTERED INTO THE CORRESPONDING AGREEMENT TO PURCHASE ON 15. 04.2012. WE THEREFORE SEE NO MERIT IN BOTH THE LOWER AUTHORITIE S ACTION MAKING THE ITA NO.193/KOL/2018 A.Y. 2014-15 NILESH BHAWNANI VS. ITO WD-32(3) KOL. PAGE 3 IMPUGNED ADDITION OF 5,74,548/- U/S 56(2)(VII)(B) OF THE ACT. THE SAME I S DIRECTED TO BE DELETED. 4. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 13/ 09/2019 SD/- SD/- ( %) (' %) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP (- 13 / 09 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-NILESH BHAWNANI APARTMENT NO. 4H, 4 TH FLOOR, SUNRISE TOWERS TOWER-II, 134B, BELIAGHATA ROAD, KOLKATA-15 2. /RESPONDENT-ITO WARD-32(3), 10B, MIDDLETON ROW, 2 ND FL, KOLKATAK-71 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,