Appeal details
Counselvise Citation
207320514 RSA 2011
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 8 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
24-04-2015
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Next Hearing Date
22-04-2015
Assessment Year
2005-2006
Appeal Filed On
23-08-2011
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ITA NO. 2073/AHD/2011 / ASSESSMENT YEAR: 2005-06 INCOME-TAX OFFICER, WARD-2(4), SURAT VS. SMT. SHARDABEN HIRALAL PRAJAPATI, 2/627, SURMAVAD, RUSTAMPURA, SURAT PAN : ABCPP 1405 F / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI ROOPCHAND, SR. DR ASSESSEE(S) BY : SHRI DIVYAKANT PARIKH, AR ! '#$ ! '#$ ! '#$ ! '#$ / DATE OF HEARING : 22/04/2015 %& ! '#$ / // / DATE OF PRONOUNCEMENT: 24/04/2015 '( '( '( '(/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE REVENUE AND IS DIREC TED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, SURAT DATED 07.06.2011 PERTAINING TO THE ASSESSMENT YEAR 2005-0 6. 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE READS AS UNDER: ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LA W, THE LD. CIT(A)-II, SURAT HAS ERRED IN DELETING THE DIFFERENCE IN VALUE OF RS.19,48,500/- (RS.42,48,500 RS.23,00,000) AND CORRESPONDING VAL UE OF DIFFERENTIAL STAMP ITA NO.2073/AHD/2011 - SMT SHARDABEN HIRALAL PRAJAPATI VS. ITO AY: 2005-06 2 DUTY OF RS.1,62,875/- WERE ADDED TO THE TOTAL INCOM E OF THE ASSESSEE U/S 69B OF THE INCOME TAX ACT, 1961. 3. AT THE TIME OF HEARING BEFORE US, THE LD. DEPART MENTAL REPRESENTATIVE SOUGHT FOR TIME ON THE GROUND THAT SOME INFORMATION IS REQUIRED FROM THE ASSESSING OFFICER. HOWEVER, IT IS AN OLD MATTER AN D WE FIND THAT ALL THE NECESSARY DETAILS ARE ALREADY ON RECORD. THEREFORE, THE LD. DEPARTMENTAL REPRESENTATIVES REQUEST FOR ADJOURNMENT IS REJECTE D AND WE PROCEEDED FOR HEARING THE APPEAL. 4. IT IS SUBMITTED BY THE LD. DEPARTMENTAL REPRESEN TATIVE THAT DURING THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR UNDER C ONSIDERATION, THE ASSESSEE HAD PURCHASED NON-AGRICULTURAL LAND FOR A CONSIDERATION OF RS.23 LACS. HOWEVER, FROM THE SALE DEED, IT WAS FOUND TH AT THE STAMP DUTY AUTHORITIES HAVE VALUED THIS PROPERTY AT RS.42,48,5 00/-. THE ASSESSEE, AS A BUYER OF THE LAND, HAS PAID THE STAMP DUTY ON THE A BOVE VALUE. HE, THEREFORE, SUBMITTED THAT THE ACTUAL PURCHASE PRICE CAN NEVER BE LESS THAN THE STAMP DUTY VALUATION AND THEREFORE, THE ASSESSI NG OFFICER RIGHTLY TREATED THE DIFFERENCE BETWEEN THE STAMP DUTY VALUA TION AND SALE PRICE SHOWN BY THE ASSESSEE AS UNEXPLAINED INVESTMENT U/S 69B OF THE ACT. THE CIT(A) DELETED THE ADDITION WITHOUT PROPERLY CONSID ERING THE FACTS OF THE CASE. HE, THEREFORE, SUBMITTED THAT THE ORDER OF T HE CIT(A) SHOULD BE REVERSED AND THAT OF THE ASSESSING OFFICER SHOULD B E SUSTAINED. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, STATED THAT MERELY BECAUSE THE STAMP DUTY VALUATION WAS MORE THAN THE ACTUAL PRICE CONSIDERATION CANNOT BE A GROUND FOR MAKING ADDITIO N U/S 69B OF THE ACT. THE REVENUE HAS NOT BROUGHT ON RECORD ANY EVIDENCE THAT THE PAYMENT ITA NO.2073/AHD/2011 - SMT SHARDABEN HIRALAL PRAJAPATI VS. ITO AY: 2005-06 3 MADE BY THE ASSESSEE WAS MORE THAN THE PAYMENT RECO RDED IN THE SALE DEED. HE FURTHER SUBMITTED THAT THE SECTION 50C WHEREIN T HE STAMP DUTY VALUATION IS CONSIDERED THE ACTUAL SALE PRICE FOR THE PURPOSE OF CAPITAL GAIN IS APPLICABLE ONLY IN THE CASE OF SELLER AND CORRESPON DING PRESUMPTION CANNOT BE MADE IN THE CASE OF THE BUYER. IN SUPPORT OF TH IS CONTENTION, HE RELIED UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH CO URT IN THE CASE OF CIT VS. MEGHJIBHAI POPATBHAI VIRANI VIDE TAX APPEAL NO.46 O F 2013. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE ASSESSI NG OFFICER MADE THE ADDITION FOR THE DIFFERENCE BETWEEN THE STAMP DUTY VALUATION AND ACTUAL SALE CONSIDERATION AS UNEXPLAINED INVESTMENT U/S 69 B. HOWEVER, THE ACTUAL SALE PRICE AND THE STAMP DUTY VALUATION CAN BE DIFF ERENT FOR VARIETY OF REASONS. THAT IF THE PURCHASE PRICE PAID BY THE ASS ESSEE IS LESS THAN THE STAMP DUTY VALUATION, IT MAY BE GOOD AND SUFFICIENT CAUSE FOR MAKING NECESSARY INQUIRY BY THE ASSESSING OFFICER SO AS TO FIND OUT WHETHER THE ASSESSEE MADE ANY PAYMENT OVER AND ABOVE THE DISCLO SED SALE CONSIDERATION; BUT, IT BY ITSELF IS NOT SUFFICIENT TO PRESUME THAT THE ASSESSEE MADE THE INVESTMENT WHICH WAS NOT DISCLOSED BY THE ASSESSEE SO AS TO INVOKE THE PROVISIONS OF SECTION 69B. ADMITTEDLY, THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY EVIDENCE THAT THE ACTUAL PURCHASE CONSIDERATION PAID BY THE ASSESSEE WAS OVER AND ABOVE THE SUM OF RS.23 LACS RECORDED IN THE SALE DEED. THE DEEMING PROVISION OF SECTION 50C WHEREIN THE STAMP DUTY VALUATION IS CONSIDERED ACTUAL SALE CONSIDERAT ION FOR THE PURPOSE OF CAPITAL GAIN IS APPLICABLE ONLY IN THE CASE OF SELL ER AND NOT IN THE CASE OF BUYER FOR THE RELEVANT ASSESSMENT YEAR. WHILE TAKIN G THIS VIEW, WE DERIVE SUPPORT FROM THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MEGHJIBHAI POPATBHAI VIRANI (SUPRA). IN VIEW OF ABOVE FACTUAL AND LEGAL ITA NO.2073/AHD/2011 - SMT SHARDABEN HIRALAL PRAJAPATI VS. ITO AY: 2005-06 4 POSITION, WE DO NOT FIND ANY JUSTIFICATION TO INTER FERE WITH THE ORDER OF THE CIT(A) AND THE SAME IS SUSTAINED. THUS, THE REVENUE S APPEAL IS DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 24 TH APRIL, 2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 24/04/2015 BIJU T., PS '( ! ') *')' '( ! ') *')' '( ! ') *')' '( ! ') *')'/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ++ ' , / CONCERNED CIT 4. , ( ) / THE CIT(A) 5. )/0 ' , , / DR, ITAT, AHMEDABAD 6. 02 3 / GUARD FILE . '( '( '( '( / BY ORDER, TRUE COPY 4 44 4/ // / +5 +5 +5 +5 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD
