The ITO, Ward-1(2)(4), Vadodara V. Smt. Urmilaben Patel, Vadodara

ITA 1957/AHD/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5619 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 28-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Sale consideration of property below Jantri Value; Difference of opinion; Change of opinion; Reassessment proceedings; Capital Gains
• Section: 143(3); 50C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) ITA. NO: 1957/AHD/2016 (ASSESSMENT YEAR: 2007-08) INCOME-TAX OFFICER, WARD- 1(2)(4), VADODARA V/S SMT. URMILABEN PATEL L/H OF LATE SMT. GANGABEN R PATEL, KAMDHENU ESTATE OPP. CITY BANK, RACE COURSE, GOTRI ROAD, VADODARA (APPELLANT) (RESPONDENT) PAN: ACQPP6487Q APPELLANT BY : SHRI L.P. JAIN, SR. D.R. RESPONDENT BY : SHRI MUKUND BAKSHI , A.R. ( )/ ORDER DATE OF HEARING : 03 -07-201 9 DATE OF PRONOUNCEMENT : 01 -10-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD. CIT(A)-4, VADODARA DATED 16.03.2016 PERTAINING TO A .Y. 2007-08 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO 1957 /AHD/2016 . A.Y. 2007-08 2 01. THE ID. CIT [APPEALS] HAS ERRED IN HOLDING THAT THE ASSESSING OFFICER HAS COMMITTED AN ERROR WHICH CANNOT BE RECTIFIED AND RE ASSESSMENT ORDER NEEDS TO BE QUASHED, WHEN IN RESPECT OF VARIOUS OPPORTUNITIE S GIVEN TO THE ASSESSEE, THE LEGAL HEIR OF THE ASSESSEE HAS CO-OPERATED WITH DEP ARTMENT IN FINALISATION OF THE REASSESSMENT AND ALSO FURNISHED ALL THE DETAILS / I NFORMATION AS CALLED FOR AS WHEN THE REASSESSMENT ORDER WAS PASSED ON THE LEGAL HEIR OF THE ASSESSEE. 02. THE ID. CIT [APPEALS] HAS ERRED IN HOLDING THAT THE REASSESSMENT WAS BASED ON CHANGE OF OPINION AND THE NOTICE ISSUED BY THE ASSE SSING OFFICER WAS AFTER FOUR YEARS, WHEN THE REOPENING OF THE ASSESSMENT WAS MAD E ON THE BASIS OF THE INFORMATION GATHERED AT THE TIME OF ASSESSMENT PROC EEDINGS FOR THE A.Y.201 1- 2012 IN THE CASE OF SHRI MATRUSHRI GANGABA TRUST, T HE OTHER CO-SELLER OF THE PROPERTY, WHICH AMOUNTED TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSE SSMENT OF THE ASSESSEE AND, THEREFORE, HIT BY THE FIRST PROVISO TO SECTION 147 OF THE INCOME-TAX -ACT, 1961. 03. THE ID. CIT [APPEALS] HAS ERRED IN HOLDING THAT THE PROVISIONS OF SECTION 50C ARE NOT APPLICABLE, WHEN THE STAMP DUTY VALUE OF AS ASSESSED BY THE STAMP DUTY VALUATION AUTHORITY WAS AVAILABLE WITH THE ASSESSIN G OFFICER FOR THE SAME PROPERTY AS PER THE SALE DEED DATED 08/05/2007. 2. FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDU AL ONLY SOURCE OF INCOME IS CAPITAL GAIN. AS THE ASSESSEE HAS FILED RETURN OF I NCOME FOR THE ASSESSMENT YEAR 2007-08 ON 31.07.2007 DECLARING TOTAL INCOME AT RS. 1,60,545/- AND THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT WAS FINALIZED ON 23.01.2015 AND DETERMINING TOTAL INCOME OF RS. 1,85,36,550/-. MAKING AN ADDITION OF RS. 1,83,76,000/-. 3. IN THIS CASE, A NOTICE U/S. 148 WAS ISSUED ON 25.03 .2014 FOR A.Y. 2007-08 IN THE NAME OF LATE GANGABEN R PATEL. HOWEVER, LATE GANGAB EN R PATEL DIED ON 14.01.2010 AND FACT OF THE SAME WAS AVAILABLE ON RE CORD OF THE DEPARTMENT AS THE RETURN FOR A.Y. 2010-11 WAS FILED BY HER LEGAL HEIR AND LEGAL REPRESENTATIVE URMILABEN P PATEL ON 22.07.2010. AND THIS FACT WAS FURTHER CLARIFIED BY THE ITA NO 1957 /AHD/2016 . A.Y. 2007-08 3 ASSESSEE IN ITS SUBMISSION DURING REASSESSMENT PROC EEDINGS AND PROOF OF THE SAME WAS FILED BEFORE THE ASSESSING OFFICER AND ASS ESSEE REQUESTED SINCE LATE SMT. GANGABEN R PATEL DIED MUCH BEFORE THE DATE OF ISSUANCE OF NOTICE U/S. 148. THEREFORE, REASSESSMENT PROCEEDINGS ARE LEGAL AND VOID. ASSESSING OFFICER WAS NOT AGREE WITH THE CONTENTION OF THE ASSESSEE A ND MADE ADDITION OF RS. 1,83,76,000/-. 4. THEREAFTER ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO GRANTED RELIEF TO THE ASSESSEE. 5. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER AND HEARD BOTH THE PARTIES. IN THIS CASE, THE REGISTRATION OF SALE DEED IS APPROVED IN THE A.Y. 2011-12 WHEREAS THE CAPITAL GAIN IS TAXED IN THE YE AR UNDER CONSIDERATION WHILE THE SALE DEED ITSELF IS EXECUTED IN THE A.Y. 2008-0 9. THE LD. A.O. IS HOLDING THAT THE TRANSACTION HAS COMPLETED IN THE YEAR UNDE R CONSIDERATION AND, THEREFORE, WHO COULD NOT HAVE ADOPTED THE MARKET VA LUE ON ITS ASSESSABLE BASIS. AND ENTIRE AMOUNT HAS ALREADY BEEN ASSESSED IN THE HANDS OF M/S. JHONSON ELECTRIC CO. LTD. IN THE ASSESSMENT YEAR 2008-09 AN D LD. A.R. HAS FILED ORDER OF THE CO-ORDINATE BENCH WHEREIN FOLLOWING ORDER WAS P ASSED AND MATTER WAS DECIDED AGAINST THE REVENUE: 6. NOW PROPERTY UNDER CONSIDERATION STOOD TRANSFERR ED ON 15/07/2006 ON HANDING OVER OF THE POSSESSION TO JHONSON ELECTRIC CO. PVT. LTD. IN COMPLIANCE TO AGREEMENT FOR SALE DATED 06.04.1993. ACCORDINGLY, S UBSEQUENT TRANSFER OF THE SAID PROPERTY BY JHONSON ELECTRIC CO. PVT. LTD. TO TANMAN FINVEST PVT. LTD. VIDE DEED OF CONVEYANCE DATED 08.05.2007 WOULD RESULT CA PITAL GAIN IN THE HANDS OF JHONSON ELECTRIC CO. PVT. LTD. ONLY. IT IS WORTHWHI LE TO MENTION HERE THAT THE LONG TERM CAPITAL GAIN ON THE BASIS OF DEED OF CONVEYANC E DATED 08.05.2007 HAS ITA NO 1957 /AHD/2016 . A.Y. 2007-08 4 BEEN ASSESSED IN THE CASE OF JHONSON ELECTRIC CO. P VT. LTD. VIDE AN ORDER U/S. 143(3) R.W.S. 147 DATED 03.11.2010. SINCE LONG TER M CAPITAL GAINS ON THE BASIS OF SALE CONSIDERATION DISCLOSED IN CONVEYANCE DEED DETERMINED U/S. 50C HAS ALREADY BEEN ASSESSED IN THE CASE OF JHONSON ELECT RIC CO. PVT. LTD. WHICH HAD PURCHASED THE PROPERTY FROM THE ASSESSEE. THEREFORE , LD. CIT(A) HAS RIGHTLY HOLD THAT PROPERTY CANNOT AGAIN BE ASSESSED IN THE HANDS OF ASSESSEE. IN OUR CONSIDERED OPINION, LD. CIT(A) HAS PASSED DETAILED AND REASONED ORDER AND SAME DOES NOT REQUIRE ANY KIND OF INTERFERENCE AT OUT EN D. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. 6. AND IN OUR CONSIDERED OPINION ONCE THE SAME AMOUNT HAS ALREADY BEEN ASSESSED IN THE HANDS OF M/S. JHONSON ELECTRIC CO. LTD. IN THE ASSESSMENT YEAR 2008-09. THEREFORE, SAME AMOUNT CANNOT BE CONSIDERE D AGAIN IN THE HANDS OF ASSESSEE. 7. IN OUR CONSIDERED OPINION, LD. CIT(A) HAS PASSED RE ASONED AND DETAILED ORDER AND SAME DOES NOT REQUIRE ANY KIND OF INTERFERENCE AT OUR END. THEREFORE, APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN OPEN COURT ON 01- 10- 2019 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 01/10/2019