ITO, Ward - 29(4), Kolkata, Kolkata V. Poonam Malhan, Kolkata

ITA 2121/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2695 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2010
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 18-03-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 15-12-2009
• Court: TRIBUNAL
• Department Lawyers: MRS JYOTI KUMARI
• Assessee Lawyers: V K SINGHANIA
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Retrospective amendment; Capital Gains
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH: K OLKATA (BEFORE HON.SHRI D.K.TYAGI, JM & HON. SHRI B.K.HALDAR,AM) ITA NO.2121/KOL/09 ASSESSMENT YEAR: 2006-07 INCOME-TAX OFFICER VS. POONAM MAL HAN WARD 29(4), KOLKATA PAN:AENPM6474M (APPELLANT) (RESPON DENT) APPELLANT BY: MRS. JYOTI KUMARI RESPONDENT BY: MR. V.K.SINGHANIA ORDER PER SHRI B.K.HALDAR, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A),XVI, KOLKATA DATED 15-09-2009 FOR THE A.Y 20 06-07. 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEA L:- 1. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) WAS WRONG IN STATING THAT THE INVOKING OF PROVISIONS OF SECTION 50C WAS NOT JUSTIFIED IN THE CASE, AS THE TRANSFER IS NOT REGISTERED WITH STAMP DUTY AUTHORITIES, AS THE OBSERVATION OF THE CIT(A) MAKES THE LEGISLATIVE INTENTION AND THE SPIRIT OF SECTION 50C TO TAX DEEM ED CAPITAL GAIN REDUNDANT AND CAUSES THE EXCHEQUER TO BLEED ON COUNTS OF STAMP DUTY AND INCOME TAX AND 2. FOR THAT THE LD.CIT(A) FAILED TO APPRECIATE THE FACT THE VALUE ADOPTED BY THE REGISTERING AUTHORITY FOR THE PURPOSE OF PAYMENT OF STAMP DUTY REMAINS SAME FOR A PARTICULAR DATE OF TRANSFER EVEN IF THE PROPERTY IS REGISTERED LATER O N ANY DATE. 3 . DURING THE ASSESSMENT PROCEEDINGS IT WAS NOTICED BY THE A.O THAT THE ASSESSEE SOLD OFFICE SPACE AT PODDAR P OINT. IT WAS CLARIFIED BY THE ASSESSEE THAT THE PROPERTY WAS SOL D ON THE BASIS OF AGREEMENT AND REGISTRATION OF THE DEED WAS NOT M ADE. AS THE AGREEMENT WAS DATED 4-2-06, THE AO SENT THE AGREEME NT TO THE REGISTRAR OF ASSURANCE [ AUTHORITY FOR STAMP DUTY] FOR ASCERTAINING THE VALUATION OF THE IMPUGNED PROPERTY FOR THE 2 PURPOSE OF STAMP DUTY. AS PER REPORT OF THE REGISTR AR OF ASSURANCE, THE VALUE OF THE PROPERTY CAME TO RS.66, 67,200/-. THE ASSESSEE, THEREFORE, WAS ASKED TO SHOW-CAUSE AS TO WHY THE ABOVE VALUATION OF THE PROPERTY SHOULD NOT BE TAKEN AS FU LL VALUE OF CONSIDERATION AS PER SECTION 50C OF THE ACT. IT WA S CONTENDED BY THE ASSESSEE THAT AS NO CONVEYANCE/SALE DEED HAS BE EN EXECUTED BEFORE THE REGISTRAR OF ASSURANCE SECTION 50C WAS N OT APPLICABLE. RELIANCE WAS PLACED ON THE CASE OF NAV NEET KR. THAKKAR VS. ITO (2007) 112 TTJ (JD) 76] (SMC). THE AO DID NOT ACCEPT THE ABOVE CONTENTION OF THE ASSESSEE FO R THE FOLLOWING REASONS:- A. THE CASE LAW AS CITED BY THE ASSESSEE WAS WITH REFERENCE TO VALUATION MADE BY DVO AND SUCH ORDER WAS NOT OF HONBLE JURISDICTIONAL TRIBUNAL. B. THE LEGISLATIVE INTENT OF SECTION 50C WAS TO BRING ALL SUCH CASES WITHIN THE AMBIT OF SECTION 50C OF THE ACT. 3.1 THE AO, THEREFORE, WORKED OUT THE CAPITAL GAINS BY TAKING THE FULL VALUE OF SALE CONSIDERATION AS PER SECTION 50C AT A FIGURE OF 66,67,200/-. 4. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A). 5. BEFORE THE LD.CIT(A) THE ASSESSEE IN ADDITION TO THE SUBMISSIONS MADE BEFORE THE AO MADE THE FOLLOWING SUBMISSIONS:- A. THE CASE WAS SQUARELY COVERED BY THE ORDER OF THE ITAT, C BENCH, KOLKATA IN ITA NO.1378/KOL/08 FOR THE A.Y 2005-06 IN THE CASE OF SHANTI DEVI MAKHARIA VS. ACIT, CIR- 52, KOLKATA. 6. THE LD.CIT(A) IN THE FACTS OF THE CASE CONCLUDED THAT IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL TRIBUNAL IN THE CASE OF SHANTI DEVI MAKHARIA (SUPRA), THE AO WAS NO T JUSTIFIED IN APPLYING SECTION 50C OF THE ACT FOR DETERMINING THE FULL VALUE 3 OF CONSIDERATION FOR THE PURPOSE OF COMPUTING CAPIT AL GAIN ACCRUING ON A/C OF TRANSFER OF IMPUGNED PROPERTY. 7. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE TH E TRIBUNAL. 8. BEFORE US THE LD. SR.DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE AO. IT WAS FURTHER SUBMITTED BY H ER THAT SECTION 50C HAS BEEN AMENDED W.E.F 1-10-09 WHEREIN ASSESSAB LE VALUE FOR THE PURPOSE OF STAMP DUTY HAS ALSO BEEN BROUGHT WITHIN THE AMBIT OF SAID SECTION. IT WAS CONTENDED BY HER THA T THE AMENDMENT IS CLARIFICATORY AND EXPLANATORY IN NATUR E AND, THEREFORE, SHOULD BE APPLIED IN ALL PENDING CASES. IT WAS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.CIT(A) O N THIS ISSUE BE REVERSED AND THAT OF THE AO BE RESTORED. 9. THE LD.AUTHORISED REPRESENTATIVE, ON THE OTHER H AND, PLACED RELIANCE ON THE ORDER OF THE LD.CIT(A). IT WAS FURTHER SUBMITTED BY HIM THAT THE AMENDMENT MADE TO SECTIO N 50C W.E.F 1-10-09 DO NOT HAVE RETROSPECTIVE EFFECT. IN THE AMENDMENT, IT IS CLEARLY WRITTEN THAT THE SAME IS A PPLICABLE W.E.F 1-10-09. THUS, THE SAME CANNOT BE MADE APPLICABLE T O A.Y 2006- 07 I.E. THE A.Y UNDER CONSIDERATION. 10. WE HAVE HEARD THE PARTIES AND PERUSED THE REC ORD. AS REGARDS THE APPLICABILITY OF AMENDED SECTION AS IS AVAILABLE ON THE STATUTE ON 1-10-09, WE ARE OF THE CONSIDERED OP INION THAT THE SCOPE OF SECTION 50C HAS BEEN ENLARGED BY SUCH AMEN DMENT. THIS BEING THE CASE, WE ARE OF THE CONSIDERED OPINI ON THAT THE AMENDMENT IS NOT EXPLANATORY AND CLARIFICATORY IN N ATURE. THUS, WE HOLD THAT THE SAME APPLIES TO TRANSFER TAKING P LACE ON AND AFTER 1-10-09. THE AMENDED SECTION 50C, WHICH WAS A PPLICABLE DURING THE RELEVANT PREVIOUS YEAR DID NOT BRING WIT HIN ITS AMBIT TYPE OF TRANSFER OF PROPERTY WHICH WE ARE DEALING W ITH IN THE PRESENT CASE AS PER DECISION OF THE JURISDICTIONAL TRIBUNAL IN THE 4 CASE OF SHANTI DEVI MAKHARIA (SUPRA). IN VIEW OF T HE ABOVE, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF TH E LD.CIT(A) ON THIS ISSUE AND CONFIRM THE SAME. THE GROUNDS TAKEN BY THE REVENUE, ARE, THEREFORE, REJECTED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED ON 1-4-10. SD/- SD/- ( D.K.TYAGI) (B.K.HALDAR ) JUDICIAL MEMBER DT. 1-4-10 ACC OUNTANT MEMBER COPY FORWARDED TO :- 1. I.T.O, WARD 29(4), AAYKAR DAKSHIN, 4 TH FL., KOL-68. 2. POONAM MALHAN C/O VINOD KR. SINHANIA 196 OLD CHINA BAZAR, 1 ST FL.,ROOM NO.1, KOL-1 3. CIT(A)-XVI, KOL 4. CIT(WB) 5 D.R., ITAT, KOLKATA. *PP TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, KOLKATA 5