ACIT,Circle-3, Ranchi V. Shri Binoy Kumar Singh, Daltonganj

ITA 207/RAN/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8267 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NISHA SINGH MARR
• Section: 56(2)(vii)(b); 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.207/RAN/2018 (ASSESSMENT YEAR: 2013-14) ACIT CRICLE-3, RANCHI VS. SHRI BINOY KUMAR SINGH C/O. M/S. ABHOY ENTERPRISES, SUDNA, DALTONGANJ-822101 AND CO NO. 02/RAN/2019 (IN I.T.A. NO. 207/RAN/2018) (ASSESSMENT YEAR : 2013-14) SHRI BINOY KUMAR SINGH C/O. M/S. ABHOY ENTERPRISES, SUDNA, DALTONGANJ-822101 VS. ACIT CRICLE-3, RANCHI [PAN NO. AFZ PS8 151 C] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI DEVESH PODDAR, ADV. RESPONDENT BY : SHRI NISHA SINGHMARR, JCIT, DR DATE OF HEARING 06.11.2019 DATE OF PRONOUNCEMENT 23 . 01 . 20 20 O R D E R PER MS. MADHUMITA ROY JUDICIAL MEMBER: THE INSTANT APPEAL FILED BY THE REVENUE AND CROSS O BJECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 20.03 .2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), JHARKHAND ARISING OUT OF T HE ORDER DATED 28.01.2016 PASSED BY THE ACIT, CIRCLE-3, RANCHI UNDER SECTION 144/143 (3) OF THE INCOME TAX ACT, 1961 - 2 - ITA NO.207/RAN/2018 AND CO NO.02/RAN/ 2019 CIT VS. SHRI BINOY KUMAR SINGH ASST.YEAR 2013-14 (HEREINAFTER REFERRED TO AS THE ACT) FOR THE ASSE SSMENT YEAR (A.Y.) 2013-14. SINCE BOTH THE APPEALS RELATE TO THE SAME ASSESSEE THESE ARE HEARD ANALOGUSLY AND ARE BEING DISPOSED OF BY A COMMON ORDER. ITA NO.207/RAN/2018 FOR A.Y. 2013-14 : 2. THE ASSESSEE IS AN INDIVIDUAL FILED ITS RETURN O F INCOME ON 31.03.2014 DECLARING TOTAL INCOME AT RS. 12,25,770/-. UPON SCRUTINY NOT ICE UNDER SECTION 143(3) OF THE DATED 02.09.2014 WAS ISSUED FOLLOWED BY SEVERAL NOT ICES FIXING DATE OF HEARING. SINCE ADEQUATE COMPLIANCE WAS NOT MADE BY AND UNDER A LET TER DATED 27.10.2015 THE ASSESSEE WAS DIRECTED TO SUBMIT THE DOCUMENTS RELAT ING TO THE INVESTMENT MADE DURING THE F.Y. 2012-13 TO THE AO FOLLOWED BY A SHOW-CAUSE NOTICE DATED 04.01.2016 ASKING THE ASSESSEE TO EXPLAIN THE INVESTMENT MADE IN THE IMMOVABLE PROPERTIES TO THE TUNE OF RS. 1,04,63,200/- ON THE BASIS OF THE INFORMATION M ADE AVAILABLE TO THE DEPARTMENT. HOWEVER, NO COMPLIANCE HAS BEEN MADE BY THE ASSESSE E AND ULTIMATELY ADDITION OF THE TOTAL CONSIDERATION OF THE PROPERTY TO THE TUNE OF RS. 1,61,77,800/- UNDER SECTION 69 WAS MADE BY THE AO WHICH WAS DELETED BY THE LD. CIT (A). HENCE, THE INSTANT APPEAL FILED BY REVENUE IS BEFORE US. IT APPEARS FROM THE RECORDS THAT IN THE APPELLATE PROCEEDING THE ASSESSEE DULY SUBMITTED THE EVIDENCES IN SUPPORT OF HIS INVESTMEN TS. UPON ADMISSION OF THE SAME IN TERMS OF PROVISION OF RULE 46A(2) OF THE ACT, A REM AND REPORT WAS CALLED FOR FROM THE AO BY THE LD. CIT(A). IN THE REMAND REPORT THE LD. AO OBSERVED THAT THE FOUR PROPERTIES PURCHASED BY THE ASSESSEE WERE IN THE LE SSER PRICE THAN THE JANTRI VALUE/CIRCLE VALUE AND, THEREFORE, SEC. 56(2)(VII)( B) IS ATTRACTED. HENCE THE DIFFERENCE BETWEEN THE PURCHASED AMOUNT AND THE STAMP DUTY VAL UE MAY BE BROUGHT TO TAX. HOWEVER, THE RELIEF WAS GRANTED BY THE LD. CIT(A) B Y ALLOWING THE APPEAL HOLDING THAT THE ASSESSEES CASE IS NOT COMING UNDER THE PU RVIEW OF SEC. 56(2)(VII)(B). - 3 - ITA NO.207/RAN/2018 AND CO NO.02/RAN/ 2019 CIT VS. SHRI BINOY KUMAR SINGH ASST.YEAR 2013-14 3. AT THE TIME OF THE HEARING OF THE INSTANT APPEA L THE LD. DR RELIED UPON THE ORDER PASSED BY THE LD. AO STATING THAT THE CASE IS ATTRA CTED UNDER SECTION 56(2)(VII)(B) OF THE ACT, SINCE THE LEGISLATURE HAS GIVEN A RETROSPE CTIVE OF SEC. 56(2)(VII)(B) EFFECT ON AND FROM 01.04.2014 BY THE FINANCE ACT 2013. THE L D. AR, HOWEVER, RELIED UPON THE ORDER PASSED BY THE LD. CIT(A). HE FURTHER ARGUED THAT THE STATUTORY PROVISION HAVING EFFECT ON AND FROM 01.04.2014 IS NOT APPLICABLE IN RESPECT OF THE PURCHASE OF FOUR PROPERTIES BY THE ASSESSEE IN THE F.Y. 2012-13. HOWEVER, THE LD. DR FAILED TO CONTROVERT THE SAID SUBMISSION MADE BY THE LD. AR. 4. HEARD THE PARTIES, PERUSED THE PERUSED THE RELEV ANT MATERIALS AVAILABLE ON RECORD. IT IS EVIDENT ON RECORD THAT THE LD. AO HAS STATED THAT THE PAYMENTS FOR PURCHASE OF THOSE LAND WERE PAID THROUGH HDFC BANK ACCOUNT OF THE ASSESSEE. THE PROVISO SPECIFIED THAT WHEN THE DATE OF AGREEMENT F IXING THE AMOUNT OF CONSIDERATION FOR THE TRANSFER OF IMMOVABLE PROPERTY AND THE DATE OF REGISTRATION ARE NOT THE SAME, THE STAMP DUTY VALUATION ON THE DATE OF AGREEMENT M AY BE TAKEN FOR THE PURPOSES OF THIS SUB-CLAUSE. FURTHER IT IS SPECIFIED BY THE PR OVISO THAT IT IS ONLY APPLICABLE WHERE THE AMOUNT OF CONSIDERATION OF A PARTICULAR TRANSAC TION OR PART THEREOF HAS BEEN PAID BY ANY MODE OTHER THAN CASH ON OR BEFORE THE DATE OF A GREEMENT FOR THE TRANSFER OF SUCH IMMOVABLE PROPERTY. THEREFORE, THE VALUATION AT TH E DATE OF AGREEMENT WOULD BE MADE APPLICABLE TO THE INSTANT CASE OF THE ASSESSEE SINCE THE PAYMENT HAS BEEN MADE THROUGH HDFC BANK AS ADMITTED BY THE AO. WE FIND T HAT THE APPLICABILITY OF THE PROVISION OF SEC. 56(2)(VII) IS ALSO NOT PERMISSIBL E. WE FURTHER APPRECIATE THE OBSERVATIONS MADE BY THE LD. CIT AT PARA 6.16:- - 4 - ITA NO.207/RAN/2018 AND CO NO.02/RAN/ 2019 CIT VS. SHRI BINOY KUMAR SINGH ASST.YEAR 2013-14 THE ISSUE TO BE DECIDED IS WHETHER THE AMENDED PRO VISIONS WHICH WERE EFFECTIVE FROM 01.04.2014 WOULD BE APPLICABLE TO THE DEED OF REGIS TRATION WHICH WAS MADE IN FINANCIAL YEAR-2012-13? THE PROVISIONS OF SECTION 56(2)(VII) ARE SUBSTANTIVE PROVISIONS. THEY LEAD TO CHARGE OF TAX. THE INTENT OF THE LEGISLATURE WHI LE INTRODUCING THE SECTION IS CLEAR. IT WAS TO BE MADE EFFECTIVE AS ON 01.04.2014 AND NOT B EFORE. IT IS TRITE LAW THAT EVERY TAX LAWS CREATING CHARGE OF TAX IS PROSPECTIVE UNLESS I T IS EXPRESSLY OR BY NECESSARY IMPLICATION MADE TO HAVE RETROSPECTIVE OPERATION. S UBSTANTIVE LAWS ARE THE PART OF THE LAW THAT CREATES, DEFINES, AND REGULATES THE RIGHTS , DUTIES AND POWERS OF PARTIES. WHILE ALLOWING THE CLAIM OF THE ASSESSEE THE LD. CI T(A), AS IT APPEARS CAREFULLY CONSIDERED RELEVANT JUDGMENTS MEN TIONED THEREIN. WE FIND FINALLY THE LD. CIT(A) OBSERVED THAT THE PROVI SION SINCE EFFECTIVE FROM 01.04.2014 HAS NOT APPLICABLE TO THE INSTANT C ASE SINCE THE PROPERTY WAS REGISTERED PRIOR TO THAT ON 21.12.2013. WHICH ACCORDING TO US IS JUST A PROPER WITHOUT ANY AMBIGUITY SO AS TO WARRANT INT ERFERENCE. THUS THE ORDER IS PASSED IN EFFECTIVE IN THE AGAINST OF THE ASSESSEE AND AGAINST THE REVENUE. THE APPEAL IS THUS FAILED. CO NO.02/RAN/2019 (IN ITA NO.207/RAN/2018) FOR A.Y . 2013-14: 5. THE FIRST GROUND TAKEN BY THE ASSESSEE RELATING TO THE ADDITION MADE TO THE TUNE OF RS. 1,61,77,800/- DELETION WHEREOF HAS ALREADY B EEN UPHELD BY US IN ITA NO. 207/RAN/2018. HENCE, THIS GROUND BECOME INFRUCTUOU S. THE SECOND GROUND RELATING TO THE INTEREST CHARGEA BLE UNDER SECTION 234B. THE CASE OF THE ASSESSEE IS THUS THE SAME IS THE CHARGE ABLE ON THE RETURN INCOME AND NOT THE ASSESSED INCOME. HEARD THE PARTIES, PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. THE LD. AO IS DIRECTED TO CHARGE INTEREST ON THE R ETURN INCOME ONLY TAKING INTO CONSIDERATION THE JUDGMENT PASSED BY THE HONBLE JU RISDICTIONAL JHARKHAND HIGH - 5 - ITA NO.207/RAN/2018 AND CO NO.02/RAN/ 2019 CIT VS. SHRI BINOY KUMAR SINGH ASST.YEAR 2013-14 COURT IN THE CASE OF AJAY PRAKASH VERMA VS. ITO IN TA NO. 38 OF 2010 IN ACCORDANCE WITH LAW. THE CO IS PARTLY ALLOWED. 6. IN THE COMBINED RESULT, REVENUES APPEAL IS DISM ISSED AND ASSESSEES CROSS OBJECTION IS PARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 23/01/2020 SD/- SD/- (PRADIP KUMAR KEDIA) (MS. MADH UMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23/01/2020 TANMAY, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ) ( / THE CIT(A)- 5. , '#$$ / DR, ITAT, RANCHI 6. %& '( / GUARD FILE. / BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) / ITAT, RANCHI 1. DATE OF DICTATION 03.12.2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04.12.2019 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S .. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.01.2020 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER