SHRI VIJAY KUMAR PATNI, Jaipur V. ITO, Jaipur

ITA 202/JPR/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5344 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH JCIT DHK
• Assessee Lawyers: RAJIV SOGANI
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Audit objection; Reasonable cause; Tangible material; Fair market value; Assessment record; Reason to believe; Borrowed satisfaction
• Section: 143(3); 50C; 54F; 80HHC; 147; 148; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 202/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07 VIJAY KUMAR PATNI, C/O- M/S VIJAY TRADING CORPN., DEVRIJI KA MANDIR, JOHRI BAZAR, JAIPUR. CUKE VS. I.T.O. WARD 2(1), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ADYPP 7515 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJIV SOGANI & SHRI ROHAN SOGANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : MRS. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 09/02/2016. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 18/03/2016. VKNS'K@ ORDER PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 29/12/2011 OF THE LEARNED CIT(A)-I, JAIPUR FOR A.Y. 2006-07. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE LD CIT(A)-1, JAIPUR HAS GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE BY UPHOLDING THE ISSUA NCE OF NOTICE U/S 148 WHICH WAS ISSUED WITHOUT PECUNIARY 2 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO JURISDICTION WITHOUT ANY REASONABLE CAUSE AND JUSTIFICATION. 2. THAT THE LD CIT(A)-1, JAIPUR HAS GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE BY UPHOLDING THE ISSUA NCE OF NOTICE U/S 148 WITHOUT RECORDING HIS SATISFACTION MERELY ON THE OBJECTIONS RAISED BY THE O/O A.G., RAJASTHAN. 3. THAT THE LD CIT(A)-1, JAIPUR HAS GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE BY UPHOLDING THE ADDIT IONS MADE BY THE ASSESSING OFFICER U/S 50C WITHOUT CONSIDERING THE SECTION 50C(2) WITHOUT ANY COGENT REASONS. 2. GROUNDS NO. 1 AND 2 OF THE ASSESSEES APPEAL ARE AGAINST CHALLENGING THE REOPENING PROCEEDING ON THE GROUND THAT ASSESSING OFFICER HAVE NO JURISDICTION AND NOTICE ISSUED U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON THE BASIS OF AUDIT OBJECTION. THE ASSESSEE IS HAVING INCOME FROM HOUSE PROPERTY, CAPI TAL GAIN AND OTHER SOURCES. HE FILED HIS RETURN OF INCOME FOR THE YEA R UNDER CONSIDERATION ON 30/3/2007 DECLARING TOTAL INCOME OF RS. 12,11,54 1/-. THE CASE WAS PROCESSED U/S 143(1) OF THE ACT ON 03/4/2007 BY THE ACIT, CIRCLE-2, JAIPUR. THE LD ASSESSING OFFICER NOTICED THAT THERE WAS AN ESCAPEMENT OF INCOME, THEREFORE, AFTER RECORDING THE REASONS, HE ISSUED NOTICE U/S 148 ON 04/2/2009. THE COPY OF REASONS RECORDED WAS GI VEN TO THE ASSESSEE. THE ASSESSEE ALSO CHALLENGED THE REOPENING BEFORE THE 3 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO ASSESSING OFFICER AND FILED OBJECTION, WHICH HAS BE EN DISPOSED OF BY THE ASSESSING OFFICER VIDE LETTER DATED 04/12/2009. THER EAFTER, HE SCRUTINIZED THE CASE U/S 143(3) OF THE ACT. THE LD A SSESSING OFFICER HAD REOPENED THE ASSESSEES CASE U/S 147 ON ACCOUNT OF NOT DISCLOSED THE VALUE TAKEN BY THE STAMP AUTHORITY ON SALE CONSIDER ATION OF FLAT SOLD AT RS. 76,66,480/-, TAKEN DEDUCTION U/S 54F ON RESIDEN TIAL HOUSE AGAINST THE CAPITAL GAIN ON SALE OF FLAT AND EXCESS CLAIM O F INTEREST U/S 24 OF THE ACT ON HOUSING LOAN. ACCORDINGLY, THE LD ASSESSING OFFICER MADE ADDITION UNDER ALL THE THREE HEADS BY PROVIDING OPPORTUNITY TO THE ASSESSEE, WHICH WAS CHALLENGED BEFORE THE LD CIT(A), WHO HAD CONF IRMED THE ORDER OF THE ASSESSING OFFICER ON REOPENING BY OBSE RVING THAT THE LD ASSESSING OFFICER HAD RECORDED THE REASONS PRIOR TO ISSUE OF NOTICE U/S 148, WHICH WAS ALSO COMMUNICATED TO THE ASSESSEE VID E LETTER DATED 06/3/2009 AND THEREAFTER A SPEAKING ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER ON 04/12/2009 MEETING THE OBJECTI ONS RAISED BY THE ASSESSEE REGARDING ISSUANCE OF NOTICE U/S 148 ON T HE BASIS OF THREE INSTANCES OF ESCAPEMENT OF INCOME. THE LD ASSESSING OFFICER OBSERVED IN VIEW OF ABOVE, INCOME TO THE EXTENT OF RS. 30,99, 477/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE IT ACT, 1961. HE HAS REASON TO BELIEVE THAT THE ASSESSEES INCOME HA S ESCAPED 4 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO ASSESSMENT. THERE IS NO REQUIREMENT UNDER THE LAW TO MAKE PRIOR ENQUIRY BEFORE RECORDING THE REASONS U/S 147 OF THE ACT. THE LD AR FOR THE ASSESSEE HAS RELIED ON THE DECISION OF HONBLE JODHPUR ITAT IN THE CASE OF ITO VS RAJENDER PRASHAD GUPTA, WHICH HELD NO T SQUARELY IS APPLICABLE BY THE LD CIT(A). IN CASE OF ASSESSEE, TH E RETURN OF INCOME WAS FILED IN THE OFFICE OF ACIT, CIRCLE-2, JAIPUR AND IT WAS PROCESSED U/S 143(1) IN THE OFFICE OF ACIT, CIRCLE-2, JAIPUR WHERE IN THE JURISDICTION OF THE CASE RESTS. THE REASONS FOR REOPENING OF THE CA SE WERE RECORDED BY THE JURISDICTIONAL ACIT. THE COPY OF THE REASONS FOR ISSUING OF NOTICE U/S 148 WAS ALSO ISSUED BY THE JURISDICTIONAL ACIT. SUBSE QUENTLY, THE CASE WAS TRANSFERRED TO THE OFFICE OF ITO WARD 2(3). THUS T HERE WAS NO PROCEDURAL LACUNA IN SO FAR AS THE ISSUANCE OF NOTI CE U/S 148 WAS INVOLVED BECAUSE THE NOTICE U/S 148 WAS ISSUED BY T HE JURISDICTIONAL ACIT WHERE THE ASSESSEE HAS FILED HIS RETURN. AFTER THE TRANSFER OF THE CASE, THE NEW INCUMBENT DISPOSED OFF THE OBJECTIONS OF THE ASSESSEE VIDE A SPEAKING ORDER DATED 4/12/2009 AND ISSUED AP PROPRIATE NOTICES. THERE IS NO REQUIREMENT TO RECORD FRESH SATISFACTION BY THE SUBSEQUENT ASSESSING OFFICER. THE ASSESSEE SUBMITTED BEFORE THE LD CIT(A) THAT ALL THE INFORMATION WAS SUBMITTED ALONGWITH THE RETURN AN D NO NEW FACTS CAME IN THE KNOWLEDGE OF THE ASSESSING OFFICER, THER EFORE, REOPENING 5 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO WAS BAD IN LAW. THE LD CIT(A) CONSIDERED THE VARIOUS CA SES WITH REFERENCE TO NO NEW FACTS BEFORE THE ASSESSING OFFIC ER PARTICULARLY IN THE CASE OF CIT VS MANOHAR LAL GUPTA (2007) 213 CTR 0193 (RAJ HC), WHICH WAS FOUND COMPLETELY DISTINGUISHABLE FROM THE FACT O F THE ASSESSEE. HE FURTHER RELIED ON THE DECISION IN THE CASE OF ACIT V S RAJESH JHAVERI STOCK BROKERS (P) LTD. (2007) 291 ITR 500 (SC), THER EFORE, THE LD ASSESSING OFFICER WAS NOT RENDERED POWERLESS TO INI TIATE ASSESSMENT PROCEEDINGS HAVING ACCEPTED THE RETURN U/S 143(1) IN A.Y. 2006-07. THE 151(1) IS ALSO NOT APPLICABLE IN THE CASE OF ASS ESSEE AS IN THIS CASE NOTICE U/S 148 WAS ISSUED BY THE DCIT, CIRCLE-2, JAIP UR. MOREOVER, THE CASE HAS NOT BEEN ASSESSED U/S 143(3) OF THE ACT, T HEREFORE, HE DISMISSED THE ASSESSEES APPEAL ON THIS GROUND. 3. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS SOLD HIS PROPERTY I.E. FLAT NO. 06 AND 08 SITUATED AT D-38/A, ASHOK MARG, C-SCH EME, JAIPUR FOR A TOTAL CONSIDERATION OF RS. 60,00,000/- VIDE REGISTE RED SALE DEED DATED 28/09/2005. HOWEVER, THE STAMP DUTY AUTHORITY FOR TH E PURPOSE OF STAMP DUTY, VALUED THE PROPERTY AT RS. 76,66,480/-. AMONGST OTHER DOCUMENTS, RELEVANT SALE DEED WAS APPENDED BY THE AS SESSEE WITH THE RETURN OF INCOME FILED BY HIM. HE HAS DRAWN OUR ATTE NTION ON PAGE NO. 5 6 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO OF THE PAPER BOOK AND ARGUED THAT THE ASSESSEE HAD ENCLOSED PHOTO COPY OF THE SALE DEED OF PROPERTY SOLD. IT IS FURTH ER SUBMITTED THAT THERE WAS AN AUDIT OBJECTION IN F.Y. 2008-09 ON NOT CONSID ERING THE SALE VALUE ON THE BASIS OF STAMP AUTHORITY U/S 50C, EXEMPT DE DUCTION U/S 54F AND DEDUCTION OF INTEREST U/S 24 OF THE ACT. THEREFORE, THE CASE WAS REOPENED U/S 147 ON THE BASIS OF AUDIT OBJECTION. TH E REASONS RECORDED BY THE ASSESSING OFFICER ARE PARI MATERIA WITH THE A UDIT OBJECTIONS RAISED BY THE AUDIT PARTY. ALL THE INFORMATION WAS PROVIDED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER ALONGWITH RETURN. IF TH E LD ASSESSING OFFICER FELT THAT THE SALE CONSIDERATION DISCLOSED BY THE A SSESSEE WAS LESS THAN THE MARKET VALUE. HE MIGHT HAVE REFERRED THE CASE T O THE VALUATION OFFICER. IT IS FURTHER ARGUED THAT THIS CASE HAS NO T BEEN SELECTED U/S 143(2) FOR SCRUTINIZING THE CASE. THE TIME LIMIT FO R SERVICING SUCH NOTICE ON THE ASSESSEE IS WITHIN SIX MONTHS FROM THE END O F THE F.Y., IN WHICH THE RETURN WAS FURNISHED, IT MEANS THE LD ASSESSING OFFICER ACCEPTED THE ASSESSEES RETURN. THE NOTICE U/S 148 CANNOT BE ISSU ED FOR ENSURING THE CORRECTNESS OF THE RETURNED INCOME WHICH DOMAIN IS EXCLUSIVE FOR SECTION 143(2). THERE WAS NO FRESH MATERIAL AVAILABLE WITH THE ASSESSING OFFICER FOR FORMATION OF BELIEVE THAT INCOME HAS ES CAPED ASSESSMENT. HE FURTHER RELIED ON THE DECISION IN THE CASE OF AMIT ENGINEERS VS. ACIT 7 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO (2015) 63 TAXMANN.COM 246 (CHANDIGARH TRIB) WHEREIN R EOPENING U/S 147 WAS MADE IN CASE OF PROCESS U/S 143(1)(A) OF THE ACT. HE FURTHER RELIED ON THE DECISION IN THE CASE OF S.RANJITH RED DY VS. DCIT (2013) 144 ITD 461 (HYD TRIB) WHEREIN REOPENING MADE U/S 14 7 AND FRAMING ASSESSMENT BY ISSUING NOTICE U/S 143(2) HAS EXPIRED . IN CASE OF CIT VS. ATUL KUMAR SWAMI (2014) 52 TAXMANN.COM 47, THE HONB LE DELHI HIGH COURT AFTER CONSIDERING THE HON'BLE SUPREME COURT D ECISION IN THE CASE OF KELVINATOR INDIA THAT REOPENING OF THE ASSESSMEN T HAS TO BE BASED ONLY ON TANGIBLE MATERIAL WHERE ISSUE OF RECEIPT UND ER THE NON-COMPETE AGREEMENT WAS INVOLVED AND CASE WAS PROCESSED U/S 143 (1) OF THE ACT. IN CASE OF CIT VS ORIENT CRAFT LTD. (2013) 29 TAXMA NN.COM 392 (DELHI) ON REASONS TO BELIEVE AND TANGIBLE MATERIAL FOR REO PENING THE CASE U/S 147. IN IDENTICAL FACTS OF THE CASE OF TUPPERWARE IN DIA (P) LTD (2016) 65 TAXMANN.COM 17 (DELHI), THE HON'BLE HIGH COURT HAS HELD THAT THE CASE REOPENED ON THE BASIS OF AUDIT REPORT AVAILABLE WITH THE ASSESSING OFFICER AND MANAGEMENT SERVICE FEES PAID WITHOUT DED UCTING TDS HAS BEEN DISCLOSED IN THE RETURN. THE HONBLE COURT HAS HELD THAT THERE WAS NO NEW MATERIAL CAME ACROSS IN THE KNOWLEDGE OF ASSE SSING OFFICER, WHICH CAN BE BASED ON REASONS TO BELIEVE. THE VARIOUS CASES ALSO REFERRED BY THE LD COUNSEL ON REOPENING ON THE BASI S OF AUDIT OBJECTION 8 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO AND BORROWED SATISFACTION, ERRONEOUS AND COMPUTATION OF BENEFIT U/S 80HHC AND REQUESTED TO QUASH THE REOPENING PROCEEDI NGS U/S 147 OF THE ACT. 4. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LOWER AUTHORITIES AND ARGUED THAT IN THIS CASE, THE ONLY CASE WAS PROCESSED U/S 143(1) OF THE ACT OR THE HON'BLE SUPR EME COURT DECISION IN THE CASE OF RAJESH JHAVERI STOCK BROKERS (P) LTD . (2007) 291 ITR 500 (SC) IS SQUARELY APPLICABLE. THE LD ASSESSING OFFICE R HAS NOT FRAMED ANY OPINION IN PROCESSING THE RETURN, THEREFORE, THE OR DER OF THE LD CIT(A) IS DESERVED TO BE UPHELD. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS UNDISPUTED FACT THAT THE REASONS HAD BEEN RECORDED BY THE ASSESSING OFFI CER ON THE BASIS OF DIFFERENCES IN THE SALE VALUE DISCLOSED IN THE COMP UTATION OF INCOME BY THE ASSESSEE, CLAIMED DEDUCTION U/S 54F ON RESIDENT IAL HOUSE AND EXCESS DEDUCTION OF INTEREST CLAIMED U/S 24 OF THE ACT. THE ASSESSEE FILED RETURN ON 30/3/2007 FOR A.Y. 2006-07, WHICH CA N BE SCRUTINIZED BY ISSUING NOTICE U/S 143(2) BY 30/3/2008 NOT WITHIN SI X MONTHS FROM THE END OF THE FINANCIAL YEAR AS REFERRED BY THE LD AR. IT IS ALSO A FACT THAT ALL CASES ARE NOT BEEN SELECTED FOR SCRUTINY THROUGH TH E ELECTRONIC PROCESS 9 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO DEVICE BY THE CBDT, WHICH IS NOT IN THE HANDS OF ASS ESSING OFFICER. THERE IS NO REFERENCE IN THE SATISFACTION OF ANY AUD IT OBJECTION AND THEREFORE, IT IS NOT A BORROWED INFORMATION. IT IS A LSO AN UNDISPUTED FACT THAT AUDIT OBJECTION AS WELL AS REASONS TO BELIEVE A RE IDENTICAL BUT IN ASSESSMENT RECORD, VARIOUS PROCEEDINGS WOULD BE FOUN D SUCH AS 263 PROCEEDINGS, 264 PROCEEDINGS, RECTIFICATION U/S 154 , AUDIT OBJECTIONS, INSPECTION, WHICH ARE PRESCRIBED BY THE LAW ITSELF. TH EREFORE, WHATEVER PROCEEDINGS ARE AVAILABLE ON THE RECORD CANNOT BE P RESUMED DIRECTLY THAT THE BASIS OF REASONS TO BELIEVE IS THAT THE PR OCEEDINGS WITHOUT REFERRING BY THE ASSESSING OFFICER IS REASON TO BEL IEVE. THE REASONS RECORDED BY THE ASSESSING OFFICER ARE SELF CONTAINE D. FURTHER THE AR CLAIMED THAT THE ASSESSEE ENCLOSED THE COPY OF SALE DEED WHERE VALUE BY THE STAMP AUTHORITY HAD BEEN DISCLOSED ALONGWITH THE RETURN, APPEARS TO BE INCORRECT THAT THE ASSESSEE HAD ENCLOSED THE COPY OF SALE DEED AS EVIDENT FROM THE REMARK PHOTO COPY OF THE SALE DEE D OF PROPERTY SOLD (2) CAN BE REFERRED TWO PAGES OF THE COPY OF DEED B UT ON VERIFICATION OF THE COPY OF THE SALE DEED, IT IS IN NINE PAGE. EVEN THE ASSESSE ENCLOSED THE COPY OF SALE DEED ALONGWITH THE RETURN, IT IS NO T NECESSARY TO VERIFY THE EACH AND EVERY ITEM BY THE ASSESSING OFFICER AS THE RETURNS ARE PROCESSED ON COMPUTER AND WHATEVER REFUND/DEMAND IS SENT DIRECTLY TO 10 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO THE ASSESSEE. THEREAFTER THESE RETURNS ARE BUNCHED A ND PUT IN THE RECORD ROOM. THE DEPARTMENT HARDLY TAKES 1% RETURN U NDER THE SCRUTINY TO PROMOTE THE COMPLIANCE OF THE TAX PAYMENT FOR TH E PUBLIC. IT IS ALSO ON THE PART OF THE ASSESSEE TO DISCLOSE THE TRUE FA CTS IN THE RETURN. THE ASSESSEE HAS CALCULATED CAPITAL GAIN BY TAKING THE SALE CONSIDERATION OF RS. 60 LACS IN COMPUTATION OF INCOME. THEREFORE, WE UPHOLD THE ORDER OF THE LD CIT(A) ON THIS ISSUE. 6. THE 3 RD GROUND OF THE ASSESSEES APPEAL IS AGAINST UPHOLDI NG THE ADDITION BY THE LD CIT(A) WITHOUT CONSIDERING SECTION 50C(2) OF THE ACT BY THE ASSESSING OFFICER. THE LD ASSESSING OFFICER H AD ADOPTED, FOR COMPUTATION OF CAPITAL GAIN, THE SALE VALUE ON THE BASIS OF VALUE ADOPTED BY THE STAMP AUTHORITY AT RS. 76,66,480/-. THE ASSES SEE WAS ALLOWED REASONABLE OPPORTUNITY OF BEING HEARD DURING THE CO URSE OF HEARING. THEREAFTER HE CALCULATED CAPITAL GAIN ON THE BASIS O F VALUE ASSESSED BY THE STAMP AUTHORITY U/S 50C. NOWHERE, THE ASSESSEE HAS CHALLENGED THE VALUATION BEFORE THE ASSESSING OFFICER, THEREFORE, THE LD CIT(A) ALSO CONFIRMED THE ORDER OF THE ASSESSING OFFICER BY HOL DING THAT THE ASSESSING OFFICER IS NOT REQUIRED SUO MOTO TO ESTAB LISH THAT THE RATE TAKEN BY THE STAMP DUTY AUTHORITIES WAS MORE THAN T HE FAIR MARKET VALUE. DURING THE APPELLATE PROCEEDINGS, THE APPELL ANT HAS NOT FILED ANY 11 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO EVIDENCE ABOUT HAVING RAISED THE CLAIM BEFORE THE A SSESSING OFFICER REGARDING EXCESS VALUE BEING ADOPTED BY THE STAMP D UTY AUTHORITIES. THE CASE LAW RELIED BY THE ASSESSEE BEFORE THE LD CIT (A) I.E. LD CIT VS. CHANDNI BHUCHAR (2010) 229 CTR (P&H) 190 WAS NOT FOUN D APPLICABLE IN THE CASE OF ASSESSEE. ACCORDINGLY, HE UPHELD THE AC TION OF THE ASSESSING OFFICER. 7. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR HAS SUBMITTED THAT THE LD ASSESSING OFFICER WAS AWARE THAT SALE VAL UE/FAIR MARKET VALUE OF THE PROPERTY WAS LESS THAN THE STAMP DUTY VALUE, HE SHOULD HAVE REFERRED THE CASE TO THE VALUATION OFFICER. IF THE LD ASSESSING OFFICER DISAGREE WITH THE CONSIDERATION STATED IN THE SALE D EED, THE ONUS IS ON HIM TO PROVE THAT THE ASSESSEE RECEIVED MORE WHAT HA S BEEN DECLARED IN THE SALE DEED. HE RELIED ON THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CHANDNI BHUCHAR (SUPRA). IT IS FURTHER ARGUED THAT IF THE ASSESSING OFFICER SATISFIED THAT FAIR M ARKET VALUE EXCEEDS SALE VALUE DISCLOSED IN THE AGREEMENT TO SALE, HE SHOULD HAVE REFERRED THE PROPERTY TO THE VALUATION OFFICER. THE HONBLE CALC UTTA HIGH COURT IN THE CASE OF SUNIL KUMAR AGARWAL (2014) 47 TAXMANN.COM 15 8 (CALCUTTA) HAS HELD THAT THE LEGISLATURE DID NOT INTEND THAT THE C APITAL GAIN SHOULD BE FIXED MERELY ON THE BASIS OF THE VALUATION TO BE MA DE BY THE DISTRICT 12 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO SUB-REGISTRAR FOR THE PURPOSE OF STAMP DUTY. THE LEG ISLATURE HAS TAKEN CARE TO PROVIDE ADEQUATE MACHINERY TO GIVE A FAIR T REATMENT TO THE CITIZEN/TAXPAYER. THEREFORE, IT IS A BOUNDEN DUTY O F THE ASSESSING OFFICER TO ACT FAIRLY TO GIVE A FAIR TREATMENT BY GIVING HI S AN OPTION TO FOLLOW THE COURSE PROVIDED BY THE LAW. THE HONBLE JAIPUR BENCH OF ITAT IN THE CASE OF SMT. KAMLESH TIWARI, ITA NO. 587/JP/2013 HAS FOLLOWED THE RATIO OF THE HONBLE CALCUTTA HIGH COURT IN THE CAS E OF SUNIL KUMAR AGARWAL (SUPRA). HE FURTHER RELIED ON THE DECISION IN THE CASE OF APPADURAI VIJAYARAGHAVAN VS. JCIT (2014) 49 TAXMANN. COM 513 (MAD) AND ANIL KUMAR JAIN VS ITO (2013) 34 TAXMANN.COM 25 8 (DELHI TRIB). THEREFORE, HE PRAYED TO QUASH THE ORDER OF THE ASSES SING OFFICER. 8. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LD CIT(A) AND FURTHER ARGUED THAT THE ASSESSEE H AD NOT CHALLENGED THE VALUE ADOPTED BY THE STAMP AUTHORITIES IS NOT F AIR OR EXCESSIVE AND ALSO NOT MADE ANY REQUEST TO THE ASSESSING OFFICER TO REFER THE PROPERTY FOR VALUATION TO THE DVO. THEREFORE, THE ASSESSEES APPEAL ON THIS GROUND IS DESERVED TO BE DISMISSED. 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. AS PE R SECTION 50C, THE LD ASSESSING OFFICER IS DUTY BOUND TO TAKE VALUE AS TA KEN BY THE STAMP 13 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO AUTHORITIES. AS PER LAW THE ASSESSEE CAN CHALLENGE THE VALUATION MADE BY THE STAMP AUTHORITY BY FILING THE APPEAL AGAINST THE STAMP DUTY PAID BEFORE THE APPELLATE AUTHORITY UNDER THE REGISTRATI ON OF STAMP ACT AND ANOTHER ALTERNATIVE IS THAT HE CAN OBJECT THE VALUA TION PROPOSED BY THE ASSESSING OFFICER ON THE BASIS OF SECTION 50C OF TH E ACT AND ON THAT BASIS THE ASSESSING OFFICER CAN REFER THE ISSUE TO THE DVO AND GET VALUATION AS PER LAW. THE HONBLE CALCUTTA HIGH COUR T IN THE CASE OF SUNIL KUMAR AGARWAL (SUPRA) CITED BY THE ASSESSEE A RE SQUARELY APPLICABLE. THEREFORE, THE LD ASSESSING OFFICER IS D IRECTED TO REFER THE MATTER TO THE DVO AND TAKE FAIR MARKET VALUE ON THE DATE OF SALE/TRANSFER. ON THAT BASIS, HE WILL COMPUTE THE CA PITAL GAIN AS PER LAW. THEREFORE, WE SET ASIDE THIS ISSUE TO THE ASSESSING O FFICER. 10. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/03/2016. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18 TH MARCH, 2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI VIJAY KUMAR PATNI, JAIPUR. 14 ITA NO. 202/JP/2012 VIJAY KUMAR PATNI VS ITO 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 2(1), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 202/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR