GOSALIA ENTERPRISES, MUMBAI V. ITO 12(1)(4), MUMBAI

ITA 218/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2335 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 05-04-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 12-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K M KESHKAMAT
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, G BENCH, MUMBAI. BEFORE S/SHRI S.V.MEHROTRA, AM & V.DURGA RAO,JM I.T.A. NO.218/MUM/2009 ASSESSMENT YEAR: 2005-06 GOSALIA ENTERPRISERS, V. THE I.T.O. 12(1)(4), 105/29, 2 ND FLOOR, MUMBAI SAMACHAR MARG, MUMBAI. MUMBAI-01. PA NO.AAADFG 0980 E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K. GOPAL RESPONDENT BY : SHRI K.M.KESHKAMAT O R D E R PER S.V.MEHROTRA, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER DATED 3.11.2008 OF LD CIT (A)-XII, MUMBAI FOR THE ASS ESSMENT YEAR 2005-06. GROUND RAISED BY THE ASSESSEE READS AS UNDER:- THE LD CIT (A) ERRED IN TAKING/RETAINING SALE OF T HE PROPERTY AT SAI CHAMBERS CO.OP.HOUSING SOCIETY LTD., AS PER THE VAL UE ADOPTED BY THE STAMP AUTHORITY AT RS.70,04,850/- IN PLACE OF S ALE PROCEEDS REALIZED RS.18,50,000/-. 2. FACTS IN BRIEF ARE THAT THE ASSESSEE FIRM DERIVE D INCOME FROM LET OUT PROPERTY OF BHARAT CHAMBER TO BHARAT OVERSEAS BANK, COMPENSATION FROM LICENCE FOR LETTING OUT RENTAL PREMISES AT BUSINESS CENTRE SITUATED AT 105, APOLLO STREET, MUMBAI, CAPITAL GAIN AND OTHER SOURCES. TH E RETURN OF INCOME WAS FILED BY THE ASSESSEE SHOWING TOTAL INCOME AT RS.5,29,744 /-. THE PREMISE OF BHARAT CHAMBER WAS ON OWNERSHIP BASIS. THE ASSESSEE HAD S OLD SAI CHAMBER PREMISES. THE AO, AS PER THE PROVISIONS OF SECTION 50C, ADOPTED STAMP AUTHORITY VALUATION AT RS.70,04,850/-IN PLACE OF PR OCEEDS REALIZED OF RS.18,50,000/-. ITA NO.218/M/2007 M/S. GOSALIA ENTERPRISES 2 3. BEFORE LD CIT (A), IT WAS POINTED OUT THAT THE A SSESSEE HAD REQUESTED THE AO TO MAKE A REFERENCE FOR VALUATION OF THE PROPER TY TO THE DVO OR BY AN ARCHITECT. HOWEVER, THE AO DID NOT ACCEPT THE ASSE SSEES REQUEST AS THE CASE WAS GETTING TIME BARRED BY LIMITATIONS. LD CIT (A) AFTER CONSIDERING THE ASSESSEES SUBMISSIONS THAT THE PROPERTY WAS SOLD O N ACCOUNT OF DISTRESS BECAUSE OF ITS LOCATION, DISADVANTAGEOUS, CONDITION AND LACK OF INCOME FROM THE PROPERTY, ETC, DIRECTED THE AO TO REFER THE SAID PR OPERTY TO THE DVO FOR THE PURPOSES OF DETERMINING ITS VALUE AS PER PROVISIONS OF SECTION 50C(2) AND FURTHER DIRECTED THE AO TO ADOPT THE VALUATION AS DETERMINE D BY THE DVO FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 4. HAVING HEARD BOTH THE SIDES, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD CIT(A) BECAUSE HE HAS ONLY ACCEPTED THE ASSESSEES CONTENTION OF REFERRING THE MATTER TO THE DVO FOR THE PURPOSE OF ARRIVING AT THE FAIR MARKET VALUE OF THE PROPERTY. WE, ACCORDINGLY, CONFIRM TH E ORDER OF LD CIT (A). 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STAN DS DISMISSED. PRONOUNCED ON 9 TH APRIL, 2010 SD/- (V. DURGA RAO) (JUDICIAL MEMBER) SD/- (S.V. MEHROTRA) (ACCOUNTANTMEMBER) MUMBAI, DATED 9 TH APRIL, 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-, MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY-, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH G, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA NO.218/M/2007 M/S. GOSALIA ENTERPRISES 3 DATE INITIALS 1. DRAFT DICTATED ON 7.4.2010 PS 2. DRAFT PLACED BEFORE AUTHOR 7.4.2010 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER ITA NO.218/M/2007 M/S. GOSALIA ENTERPRISES 4