Mahendra Kumar Agarwal, Siliguri V. ITO, WARD -2(1), Siliguri, Siliguri

ITA 2193/KOL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75001 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 10-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD SRDR
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Fair market value; Valuation report
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI, ABRAHAM P.GEORGE, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO. 2193 / KOL / 2010 ASSESSMENT YEAR :2006-07 MAHENDRA KUMAR AGARWAL ISWAR SADAN PANJABIPARA, SILIGURI [ PAN NO.AFIPA 9472 M ] V/S . INCOME TAX OFFICER, WARD-2(1), SILIGURI /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SUBHASH AGARWAL, AR /BY RESPONDENT SHRI RAJENDRA PRASAD, SR-DR /DATE OF HEARING 05-02-2014 /DATE OF PRONOUNCEMENT 07-02-2014 / // / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER:- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(APPEALS), SILIGURI IN APPEAL NO.141/CIT(A)/SLG/ 08-09 DATED 16-11-2010 FOR THE ASSESSMENT YEAR 2006-07. SHRI SUBASH AGARWAL, A DVOCATE REPRESENTED ON BEHALF OF ASSESSEE AND SHRI RAJENDRA PRASAD, SR-DR REPRESENTED ON BEHALF OF THE REVENUE. 2. IN ASSESSEES APPEAL, ASSESSEE HAS RAISED FOLLOW ING GROUNDS:- 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DIRECTING THE A.O TO AP PLY THE VALUE ESTIMATED BY THE DVO FOR THE PURPOSE OF COMPUTATION OF CAPITA L GAIN TO WHOM REFERENCE WAS MADE BY THE A.O AS PER THE PROVISIONS OF SECTION 50C. ITA NO.2193/KOL/2010 A.Y. 2006-07 MAHENDRA KR AGARWAL V. ITO WD-2(1) SLG PAGE 2 2. FOR THAT OF THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE OBJECTION RAISE D BY THE ASSESSEE AGAINST THE VALUATION REPORT OF THE DVO. 3. FOR THAT THE LD. CIT(A) ERRED IN STATING THAT TH E ASSESSEE SHOULD HAVE FILED A SEPARATE APPEAL AGAINST THE ORDER OF THE DV O DETERMINING THE FAIR MARKET VALUE OF THE PLOT SOLD APPLYING THE RAT E OF RS.2,83,500/- PER KATHA. 4. FOR THAT THE LD. CIT(A)S OBSERVATION THAT IT IS A CASE FOR IMPOSING PENALTY US. 271(1)(C) AT THE HIGHEST RATE PRESCRIBE D UNDER THE ACT AND ALSO A SUITABLE CASE FOR INITIATING PROSECUTION UND ER THE I.T. ACT ARE UNWARRANTED AND UNCALLED FOR AND ARE LIABLE TO BE E XPUNGED. 3. IT WAS THE SUBMISSION BY LD. AR THAT ASSESSEE IS AN INDIVIDUAL WHO HAD EXPIRED ON 28-08-2012 AFTER THE ORDER OF LD. CIT(A) AND NECESSARY AFFIDAVIT FOR BRINGING IN THE LEGAL HEIR HAS BEEN FILED. SMT.SUSM ITA AGARWAL, WIFE OF DECEASED ASSESSEE IS NOW REPRESENTING THE ASSESSEE. IT WAS THE SUBMISSION BY LD. AR THAT ASSESSEE HAD SOLD THE LAND DURING TH E RELEVANT AY AND OFFERED THE SAME FOR CAPITAL GAINS. IT WAS THE SUBMISSION T HAT ASSESSING OFFICER HAD REQUESTED FOR DEPARTMENTAL VALUATION OFFICER (DVO) REPORT FOR THE PURPOSE OF APPLYING THE PROVISIONS OF SECTION 50C OF THE INCOM E-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND DVO HAD NOT REPLIED BY THE TIME WHEN ASSESSMENT WAS COMPLETED ON 30-12-2008. HOWEVER, WH EN THE APPEAL WAS PENDING BEFORE LD. CIT(A), THE DVO REPORT HAD BEEN OBTAINED ON 20-07-2010. AS PER THE DVOS REPORT, THE FAIR MARKET VALUE HAD BEEN ADOPTED BY THE LD. CIT(A). IT WAS THE SUBMISSION THAT ASSESSEES OBJEC TION TO THE DVO REPORT HAD NOT BEEN CONSIDERED BY THE LD. CIT(A). IT WAS THE S UBMISSION THAT HE HAS NO OBJECTION IF THE ISSUES IN THE APPEAL WERE RESTORED TO THE FILE OF AO FOR RE- ADJUDICATION AFTER CONSIDERING THE OBJECTION OF THE ASSESSEE IN RESPECT OF DVOS REPORT. 4. IN REPLY, LD. SR-DR HAD NO OBJECTION. ITA NO.2193/KOL/2010 A.Y. 2006-07 MAHENDRA KR AGARWAL V. ITO WD-2(1) SLG PAGE 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION. CONSIDE RING THE SUBMISSION OF THE ASSESSEE AND ALSO TAKING INTO CONSIDERATION THE FACT THAT THE DVO REPORT WAS OBTAINED MUCH AFTER THE ASSESSMENT AS ALSO THE FACT THAT THE OBJECTION OF THE ASSESSEE HAS NOT BEEN CONSIDERED BY THE DVO OR THE AO, THE ISSUES IN THIS APPEAL ARE RESTORED TO THE FILE OF AO FOR RE-A DJUDICATION AFTER GRANTING THE ASSESSEE OPPORTUNITY TO SUBSTANTIATE ITS CASE AND A FTER CONSIDERING THE OBJECTION OF THE ASSESSEE IN RESPECT OF DVO REPORT. ALL ISSUES IN RESPECT OF ISSUES IN THE PRESENT APPEAL ARE LEFT OPEN. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07/02/2014 SD/- SD/- (ABRAHAM.P.GEORGE) (GEORGE MATHAN) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP !- 07/02/2014 , , , , -, -, -, -, / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT MAHENDRA KUMAR AGARWAL ISWAR SADAN PANJABIPARA, SILIGURI 2. / RESPONDENT INCOME TAX OFFICER, WARD-2(1), SILIGURI 3. 2 / CONCERNED CIT 4. 2- / CIT (A) 5. , , , / DR, ITAT, KOLKATA 6. 9 / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,