Smt. Asha Mittal, Ghaziabad V. DCIT, Ghaziabad

ITA 2008/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3769 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 12-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Additional evidence
• Section: 50C; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.2008/DEL/2016 A.Y. : 2011-12 ASHA MITTAL, (WIDOW & LEGAL HEIR OF SH. SURENDRA KUMAR MITTAL) R-1/3, FLAT NO. 103, VAISHNO DEVI APARTMENT, RAJ NAGAR, GAHZIABAD (PAN: BCFPM5255B) VS. DCIT, CIRCLE-2, GHAZIABAD (ASSESSEE) (RESPONDENT) ASSESSEE BY : MS. SWEETY KOTHARI, CA REVENUE BY : MS. ASHIMA NEB, SR. DR ORDER PER H.S. SIDHU : JM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUG NED ORDER DATED 26.2.2016 OF THE LD. CIT(A), GHAZIABAD RELEVANT TO ASSESSMENT YEAR 2011-12. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER:- 1. THE APPELLATE AUTHORITY ERRED IN LAW AND ON FACTS IN NOT ADMITTING THE ADDITIONAL EVIDENCE FURNISHED BY THE APPELLANT U/R. 46A EVEN WHEN NO OPPORTUNITY TO EXPLAIN WAS AFFORDED TO THE APPELLANT BEFORE APPLYING THE PROVISIONS OF 2 SECTION 50C. THUS, THE ADDITIONAL EVIDENCES MUST BE ADMITTED. 2. THE APPELLATE AUTHORITY ERRED IN LAW AND ON IN CONFIRMING THE ADOPTION OF STAMP DUTY VALUATION U/S. 50C BY THE AO BY SUBSTITUTING THE SALE CONSIDERATION FROM RS. 65,74,500/- DECLARED BY THE APPELLANT TO RS. 97 LACS BEING STAMP DUTY VALUATION (I) WITHOUT CONFRONTING THE APPELLANT BEFORE APPLYING S. 50C; AND (II) WITHOUT REFERRING THE SAME TO DVO IN TERMS OF SECTION 50C(II). THUS THE VALUATION SO ENHANCED WITHOUT THE AUTHORITY OF LAW MUST BE REVERSED. 3. THE APPELLATE AUTHORITY ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS. 1,31,490/- TOWARDS BROKERAGE PAID ON SALE OF PROPERTY WITHOUT AFFORDING THE APPELLANT A REASONABLE OPPORTUNITY TO ADDUCE THE NECESSARY EVIDENCES. THUS, THE SAID DISALLOWANCE MUST BE DELETED. 4. THE APPELLANT CRAVES THE LEAVE TO ADD, SUBSTITUTE, MODIFY, DELETE OR AMEND ALL OR ANY GROUND OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 3 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED H ERE FOR THE SAKE OF BREVITY. 4. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSE E STATED THAT LD. FIRST APPELLATE AUTHORITY HAS NOT ADMITTED THE ADDI TIONAL EVIDENCE FURNISHED BY THE ASSESSEE U/R. 46A OF THE I .T. RULES, 1962 AND NO OPPORTUNITY TO EXPLAIN WAS AFFORDED BY THE A O TO THE ASSESSEE BEFORE APPLYING THE PROVISIONS OF SECTION 50C OF THE I.T. ACT, 1961. SHE FURTHER STATED THAT LD. CIT(A) WRONGL Y CONFIRMED THE ADOPTION OF STAMP DUTY VALUATION U/S. 50C BY THE AO B Y SUBSTITUTING THE SALE CONSIDERATION FROM RS. 65,74,500/- DECLARED BY THE ASSESSEE TO RS. 97 LACS BEING STAMP DUTY VALUATION A ND WITHOUT CONFRONTING THE ASSESSEE BEFORE APPLYING S. 50C WIT HOUT REFERRING THE SAME TO DVO IN TERMS OF SECTION 50C(II). THUS THE VA LUATION SO ENHANCED WITHOUT THE AUTHORITY OF LAW MUST BE REVERSED. IT WAS FURTHER SUBMITTED THAT THE LD. FIRST APPELLATE AUTHORIT Y WRONGLY CONFIRMED THE DISALLOWANCE OF RS. 1,31,490/- TOWARDS BROKERAGE PAID ON SALE OF PROPERTY WITHOUT AFFORDING THE ASSESS EE A REASONABLE OPPORTUNITY TO ADDUCE THE NECESSARY EVIDENCES. SHE FURTHER STATED THAT ASSESSEE HAS FILED ALL THE NECESSARY DOCUMENTARY EVIDENCES FOR SUBSTANTIATING THE CLAIM IN DISPUTE BEFORE THE LD. C IT(A), BUT THE LD. CIT(A) HAS NOT PASSED ANY ORDER ON THE SAME. SHE AL SO STATED THAT 4 THE ASSESSEE IS HAVING ALL THE EVIDENCES FOR SUBSTAN TIATING HIS CLAIM AND SOME OF THE EVIDENCES, SHE HAS ALREADY FI LED BEFORE THE LD. CIT(A) ALONGWITH THE APPLICATION UNDER RULE 46A AN D THEREFORE SHE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE AO TO DECIDE THE SAME AFRESH, AFTER CONSIDERING ALL THE E VIDENCES FILED BY THE ASSESSEE AND GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED RECORDS , ESPECIALLY THE IMPUGNED ORDER. WE FIND CONSIDERABL E COGENCY IN THE CONTENTION RAISED BY THE LD. COUNSEL OF THE ASSESSEE THAT LD. FIRST APPELLATE AUTHORITY HAS NOT ADMITTED THE ADDITIONAL E VIDENCE FURNISHED BY THE ASSESSEE U/R. 46A OF THE I.T. RULE S, 1962 AND EVEN WHEN NO OPPORTUNITY TO EXPLAIN WAS AFFORDED TO THE ASSESSEE BEFORE APPLYING THE PROVISIONS OF SECTION 50C. WE FURTHER FIND THAT LD. CIT(A) CONFIRMED THE ADOPTION OF STAMP DUTY VALUAT ION U/S. 50C BY THE AO BY SUBSTITUTING THE SALE CONSIDERATION FROM RS. 65,74,500/- DECLARED BY THE ASSESSEE TO RS. 97 LACS BEING STAMP DUTY VALUATION AND WITHOUT CONFRONTING THE ASSESSEE B EFORE APPLYING S. 50C WITHOUT REFERRING THE SAME TO DVO IN TERMS OF S ECTION 5 50C(II), WHICH IS VERY ESSENTIAL UNDER THE LAW. IN VIEW OF THE ABOVE, IT IS CRYSTAL CLEAR THAT LD. FIRST APPELLATE AUTHORIT Y CONFIRMED THE DISALLOWANCE OF RS. 1,31,490/- TOWARDS BROKERAGE PAI D ON SALE OF PROPERTY WITHOUT AFFORDING THE ASSESSEE A REASONABLE O PPORTUNITY TO ADDUCE THE NECESSARY EVIDENCES. WE FURTHER NOTE THAT ASSESSEE HAS FILED ALL THE NECESSARY DOCUMENTARY EVIDENCES FOR SUBSTANTIATING THE CLAIM IN DISPUTE BEFORE THE LOWER AUTHORITIES, B UT THE LD. CIT(A) HAS NOT COMMENTED UPON THE SAME. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE HAS FILED A PAPER BOOK CON TAINING PAGES 1 TO 287 HAVING THE (1) COPY OF WRITTEN SUBMISSION DATED 1 9.2.2015 ALONGWITH ITS ENCLOSURES (A) A CHART SHOWING COMPARA TIVE LAND RATES; (B) A PHOTOCOPY OF THE DECISION DATED 4.7.2001 OF THE ITAT, SMC BENCH, CHANDIGARH IN THE CASE OF PUSHPA SOFAT VS. IT O DATED 4.7.2001; (C) COPYO F APPELLATE ORDER DATED 5.3.2008 OF SHIAM KUMAR GUTPA VS. ITO IN ITA NO. 178/DEL/2008; (2) A P HOTOCOPY OF THE APPLICATION FOR ADMITTANCE OF ADDITIONAL EVIDENCE U /R. 46A OF THE INCOME TAX RULES ALOGNWITH ITS ENCLOSURES (A) A CHART SHOWING DETAILS OF THE FOLLOWING SAID PROPERTIES SOLD IN OPEN MARKET; (B) A COPY OF SALE DEED BETWEEN SMT. SATYAWATI DEVI AND SH. ARUN KUMAR SHARMA DATED 10.10.2014; COPY OF THE SALE DEED BETWE EN SMT. MEENA RANI AND SMT. SEEMA GUTPA DATED 10.10.2014; C OPY OF THE SALE DEED BETWEEN SMT. DIDSHA SHARMA AND SH. PRADEE P KUMAR 6 BUBBER DATED 13.10.2014; COPY OF THE SALE DEED BETWEE N SMT. BALWANT KUMARI AND SMT. MEENAKSHI DVI DATED 7.11.2014; COPY OF THE SALE DEED BETWEEN SH. GAURAV GOYAL AND SMT. SANG EETA DATED 7.11.2014; COPY OF SALE DEED BETWEEN SANJAY KUMAR AND BANSHRAJ GUPTA DATED 7.11.2014; COPYO F THE SALE DEED BETWEEN SH. MOHAMAD SHAHID AND SH. SAMIR UPMANU DATED 10.10.2014 ; COPY OF THE SALE DEED BETWEEN SH. RAJ BHUTANI AND SH. VIKAS SHEEL DATED 7.11.2014; COPY OF SALE DEED BETWEEN SH. ADESH KUMA R GUPTA AND SH. KRISHAN KUMAR DATED 10.10.2014; COPY OF SALE DEE D BETWEEN SH. RAJ KUMAR AND SMT. NITI GUPTA DATED 7.11.2014; COPY OF THE BROKERS CONFIRMATION WITH THE ASSESSEE; (3) PHOTOCO PY OF THE REMAND REPORT DATED 20.1.2016 AND THE COPY OF THE HO NBLE HIGH COURT OF GUJARAT DECISION IN THE CASE OF CIT VS. KAMLA BEN SURESHCHANDRA BHATTI IN TAX APPEAL NO. 70 OF 2014 DATE OF ORDER 17.2.2014. WE NOTE THAT THE LD. COUNSEL OF THE ASSES SEE HAS ALSO CERTIFIED THAT THE ABOVE EVIDENCES/ DOCUMENTS WERE ON R ECORD OF THE LD. CIT(A) AND THE AO IN REMAND PROCEEDINGS, BUT THE LOWER AUTHORITIES HAVE EVEN NOT ADMITTED AND NOT CONSIDERED THE SAME, WHICH IN OUR CONSIDERED OPINION, ARE VERY ESSENTIAL TO BE CONSIDERED AND EXAMINED BY THE ASSESSING OFFICER. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, THE ISSUES IN DISPUTE ARE REMITTED BACK TO THE FILE OF THE AO TO DECIDE THE 7 ISSUES IN DISPUTE AFRESH, AFTER CONSIDERING ALL TH E EVIDENCES AS DISCUSSED ABOVE AND GIVE ADEQUATE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM. THE ASSESSEE IS ALSO DIRE CTED TO SUBMIT ALL THE DOCUMENTS / EVIDENCES BEFORE THE AO IN ORDER TO SUB STANTIATE HIS CLAIM. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 05/02/2018. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 05/02/2018 COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 8