Binay Prakash, Kolkata V. I.T.O.,Ward-1(1), Kolkata

ITA 203/KOL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2399 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 05-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVASH ROY J
• Assessee Lawyers: S L KOCHAR
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 143(3); 50C; 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.203/KOL/2019 ASSESSMENT YEAR:2014-15 SRI BINAY PRAKASH 4, GANGADHAR BABU LANE, FIRINGI KALI TOWERS, 1 ST FLOOR BOWBAZAR, KOLKATA- [ PAN NO.AGBPP 6089 K ] / V/S . INCOME TAX OFFICER WARD-1(1), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S.L.KOCHAR, ADVOCATE & SHRI ARYAN KOCHAR, ADVOCATE /BY RESPONDENT SHRI PRAVASH ROY, JCIT-DR /DATE OF HEARING 17-06-2019 /DATE OF PRONOUNCEMENT 21-06-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2014-15 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-1, KOLKATAS O RDER DATED 19.06.2018 PASSED IN CASE NO.599764531230117/CIT(A)-1/ITO.WARD-1(1)/2 016-17 INVOLVING PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961 ; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GROUND CHALLENGE S CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION MAKING ADDITION OF 12,05,022/- ON ACCOUNT OF THE CAPITAL ASSET PURCHASED ON 05.03.2014 FOR 31,14,622/-. THERE IS NO DISPUTE THAT THE ASSESSEE HAD ADOPTED VALUE OF THE SAID PROPERTY AT 19,09,600/- AS PURCHASE PRICE. THE ASSESSING ITA NO.203/KOL/2019 A.Y. 2014-15 SRI BINAY PRAKASH VS. ITO WD-1(1), KOL. PAGE 2 OFFICER AS WELL AS THE CIT(A) HAVE THEREFORE PROCE EDED TO ADD THE DIFFERENTIAL SUM OF 12,05,022/- BY QUOTING SEC. 50C OF THE ACT. 3. I HAVES GIVEN MY THOUGHTFUL CONSIDERATION TO RIV AL CONTENTIONS. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT T HE ASSESSING OFFICERS ASSESSMENT ORDER DATED 28.12.2016 HAS APPLIED SEC. 50C OF THE ACT WHICH IS NOT SUSTAINABLE AS THE SAID STATUTE PROVISION COMES INTO PLAY IN CASE OF A VENDOR THAN VENDEE. THE REVENUES NEXT ARGUMENT AT THIS STAGE IN SUPPORT OF BOTH THE LOWER AUTHORITIES ACTION IS THAT SEC. 56(2)(VII) IS ATTRACTED IN FACT OF THE INSTANT CASE . I FIND NO MERIT IN REVENUES STAND. THE ASSESSEES PAPER BOOK HAS PLACED ON RECORD THE CORRESPONDING AGREEMENT TO SELL DATED 28.04.2011 MAKING IT CLEAR THAT HE HAD PAID A SUM OF 5 LAC AS PER CHEQUE NO.742562 DATED 14.04.2011. THE SAID CRUCIAL FACT H AS GONE UNREBUTTED FROM THE REVENUE SIDE. I NOTICE IN THIS BACKDROP THAT SEC.56 (2)(VII)(B) FIRST AND SECOND PROVISO MAKE IT CLEAR THAT THE IMPUGNED ADDITION WOULD NOT BE MADE IN CASE THE DATE OF AGREEMENT AND TRANSFER OF IMMOVABLE PROPERTY IN ISS UE ARE NOT THE SAME AND IT INVOLVES A PART OF SALE CONSIDERATION PAID IN ANY M ODE OTHER THAN CASH. THE LEGISLATURE HAS INSERTED SIMILAR FIRST AND SECOND PROVISO IN SE C. 50C(1) OF THE ACT AS WELL BY THE FINANCE ACT 2016 WITH EFFECT FROM 01.04.2017. THIS TRIBUNALS CO-ORDINATE BENCHS DECISION IN DHARAMSHIBHAI SONANI VS. ACIT (2016) 57 ITR 669 (AHD) HAS HELD THE SAID PROVISO TO BE RETROSPECTIVELY APPLICABLE SINCE CURATIVE IN NATURE. I DRAW SUPPORT THEREFROM TO CONCLUDE THAT THE ASSESSING OFFICER AS WELL AS CIT(A) HAVE ERRED IN ADOPTING THE STAMP PRICE OF THE ASSET PURCHASED FOR THE PURPOSE OF MAKING THE IMPUGNED ADDITION IN ASSESSEES HANDS U/S 50C AS WE LL AS SEC. 56 OF THE ACT. I ACCORDINGLY DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED ADDITION. 4. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 21/06/2019 SD- (S.S. GODARA) JUDICIAL ME MBER KOLKATA, *DKP/SR.PS - 21/06/2019 ITA NO.203/KOL/2019 A.Y. 2014-15 SRI BINAY PRAKASH VS. ITO WD-1(1), KOL. PAGE 3 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SRI BINAY PRAKASH, 4 GANGADHAR BABU LANE , FIRINGI KALI TOWERS, 1 ST FLOOR BOWBAZAR, KOLKATA 2. /RESPONDENT-ITO WARD-1(1), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',