The ITO, Ward-3(4), Surat V. Smt. Rekhaben Jasmatbhai Vidiya, Surat

ITA 2225/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89250 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 26-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 05-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD 00 , ! ' #$, % & BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER !./ ITA NO. 2225/AHD/2011 % ) *)/ ASSESSMENT YEAR: 2008-2009 ITO, WARD - 3(4) SURAT. VS SMT.REKHABEN JASMATBHAI VIDIYA 6, VAIBHAV BUNGLOWS, CITY GYMKHANA ROAD PIPLOD, SURAT. PAN : AARPV 5448 E +, / (APPELLANT) -. +, / (RESPONDENT) REVENUE BY : SHRI NIMESH YADAV, SR.DR ASSESSEE(S) BY : SHRI M.K. PATEL / DATE OF HEARING : 26/03/2015 / DATE OF PRONOUNCEMENT: 10/04/2015 // O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER O F INCOME-TAX-II, SURAT DATED 1.7.2011. 2. THE ONLY GROUND OF APPEAL OF THE REVENUE READS A S UNDER: [1] ON THE FACTS AND CIRCUMSTANCE OF THE CASE A ND IN LAW, THE LD. CIT(A)-II, SURAT HAS ERRED IN DELETING THE ADDI TION OF RS.73,65,080/- TOWARDS UNACCOUNTED INVESTMENT IN PR OPERTIES U/S. 69B OF THE I.T. ACT WITHOUT NOTING THAT THE AS SESSEE FAILED TO ADEQUATELY EXPLAIN THE VAST: DIFFERENTIAL BETWEEN T HE JANTRI VALUE AND THE DOCUMENTED PRICE IN SUBSTANTIATION OF HER C LAIM. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. ITA NO.2225/AHD/2011 2 2. BRIEF FACTS OF THE CASE ARE THAT THE AO FOUND TH AT THE ASSESSEE HAS PURCHASED AGRICULTURAL LAND LOCATED AT VILLAGE SO NARI, SURAT FOR AN AMOUNT OF RS.8,51,000/- BY REGISTERED DOCUMENT. TH E SUB-REGISTRAR VALUED THE ABOVE PROPERTY AT RS.40,06,800/- AND CHA RGED ADDITIONAL STAMP DUTY OF RS.1,54,640/- IN ADDITION TO THE ORIG INAL STAMP DUTY OF RS.1,70,000/-. THE AO, THEREFORE, OPINED THAT THE VALUE OF THE PROPERTY WAS RS.40,06,800/- WHICH WAS ACCEPTED BY THE BOTH T HE PARTIES. HE FURTHER OBSERVED THAT THE ASSESSEE ALSO PURCHASED A GRICULTURAL LAND IN VILLAGE UNN, SURAT, R.S.NO.227, BLOCK NO.288 AND RE GISTERED IN THE OFFICE OF SUB-REGISTRAR, UDHNA, SURAT, AND THE DOCU MENT WAS REGISTERED AT VALUE OF RS.21,00,000/-. THE SUB-REGISTRAR, UDH NA VALUED THE PROPERTY AT RS.63,10,080/- AND CHARGED STAMP DUTY O F RS.3,10,000/- WHICH WAS PAID. HE OBSERVED THAT THE STAMP DUTY CH ARGED BY THE STAMP VALUATION AUTHORITY WAS NOT DISPUTED BY THE P ARTIES. THIS SHOWS THAT VALUE OF THE PROPERTY WAS RS.63,10,080/-. ACCORDINGLY, THE AO ISSUED SHOW CAUSE NOTICE FOR MAKING ADDITION OF DIF FERENTIAL AMOUNT OF RS.31,55,800/- AND RS.42,10,080/-. THE ASSESSEE SU BMITTED THAT SHE HAS NOT PAID ANY EXTRA MONEY, OVER AND ABOVE, THE A MOUNT SHOWN IN HER BOOKS OF ACCOUNTS. THE ASSESSEE RELIED ON THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN ITA NO.1749/AHD/ 2008 AND 2104/AHD/2010. THE AO DID NOT ACCEPT THE EXPLANATI ON OF THE ASSESSEE AND HELD THAT THE ASSESSEE HAS NOT RECORDED THE COR RECT VALUE OF THE INVESTMENT IN ITS REGULAR BOOKS OF ACCOUNTS AND SOU RCE OF EXTRA INVESTMENTS REMAINED UNEXPLAINED. THEREFORE, THE A O MADE ADDITION OF RS.73,65,080/- UNDER SECTION 69B OF THE ACT. 3. ON APPEAL, THE CIT(A) DELETED THE ADDITION BY OB SERVING THAT THE AO HAD NOT BROUGHT ANY EVIDENCE ON RECORD TO SHOW T HAT AN AMOUNT OF RS.73,65,080/- WAS PAID BY THE ASSESSEE TO THE SELL ER OF THE PROPERTY, OVER AND ABOVE, THE AMOUNT APPEARING IN THE SALE DE ED. HE RELIED ON THE DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SHRI ITA NO.2225/AHD/2011 3 PREMJIBHAI GOPALBHAI PATEL, ITA NO.2104/AHD/2010 WI TH CO NO.171/AHD/2010 FOR THE ASSTT.YEAR 2006-07, ORDER D ATED 29.10.2010 WHEREIN IT WAS HELD THAT APART FROM RELYING UPON TH E RATES ADOPTED BY STAMP VALUATION AUTHORITY, THERE IS NO OTHER MATERI AL TO SUPPORT THE ADDITION. THE RATES ADOPTED BY THE STAMP VALUATION AUTHORITY CANNOT BE TAKEN BY ITSELF AS THE PRICE, FOR WHICH THE PROPERT Y WAS PURCHASED. 4. BEING AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 5. THE DR SUPPORTED THE ORDER OF THE AO, ON THE OTH ER HAND, THE AR OF THE ASSESSEE SUBMITTED THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SARJAN REALITIES LTD., (2013) 40 TA XMANN.COM 398 (GUJ) HAS HELD THAT SECTION 50C OF THE ACT BY A DEEMING FICTION SUBSTITUTES THE CONSIDERATION RECEIVED ON SALE OF A CAPITAL ASS ET BY STAMP DUTY VALUATION. SUCH DEEMING FICTION, HOWEVER, IS APPLI CABLE ONLY IN CASE OF A SELLER FOR THE PURPOSE OF SECTION 48 OF THE ACT. HENCE, IT WAS THE SUBMISSION OF THE ASSESSEE THAT THE SECTION 50C WAS NOT APPLICABLE TO THE CASE OF THE ASSESSEE, AS THE ASSESSEE WAS THE P URCHASER OF THE AGRICULTURE LAND, AND THEREFORE, ORDER OF THE CIT(A ) SHOULD BE CONFIRMED. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, AND PER USING THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON REC ORD, WE FIND THAT THE UNDISPUTED FACTS IN THE INSTANT CASE IS THAT THE AO MADE ADDITION OF RS.73,65,080/- UNDER SECTION 69B OF THE ACT TOWARDS UNACCOUNTED INVESTMENT IN PURCHASE OF AGRICULTURAL LAND BY THE ASSESSEE, AS HE FOUND THAT THE STAMP VALUATION WAS HIGHER THAN THE CONSID ERATION MENTIONED IN THE SALE DEED. THEREFORE, HE MADE ADDITION OF T HE DIFFERENTIAL AMOUNT BETWEEN THE VALUE ADOPTED FOR REGISTRATION B Y THE SUB-REGISTRAR AND VALUE MENTIONED IN THE REGISTERED SALE DEED. 7. ON APPEAL, THE CIT(A) FOLLOWING THE DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SHRI PREMJIBHAI GOPA LBHAI PATEL (SUPRA) ITA NO.2225/AHD/2011 4 WHEREIN IT WAS HELD THAT BESIDES THAT STAMP DUTY VA LUATION, THERE WAS NO OTHER MATERIAL ON RECORD TO SHOW THAT THE ASSESS EE HAD ACTUALLY PAID ANY AMOUNT, OVER AND ABOVE, THE AMOUNT MENTIONED IN THE REGISTERED SALE DEED, AND THEREFORE, THE ADDITION MADE WAS NOT SUSTAINABLE, AND DELETED THE ADDITION. 8. THE DR COULD NOT POINT ANY DEFECT IN THE ABOVE F INDINGS OF THE CIT(A) NOR COULD BRING ON RECORD ANY MATERIAL TO SH OW THAT THE ASSESSEE HAD ACTUALLY PAID ANY AMOUNT MORE THAN WHAT WAS DIS CLOSED AS APPARENT CONSIDERATION IN THE RELEVANT SALE DEED. F URTHER, WE FIND THAT THE ASSESSEE IS A PURCHASER OF THE AGRICULTURAL LAN D IN THIS CASE. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF SARJAN RE ALITIES LD. (SUPRA) HAS HELD THAT SECTION 50C WAS APPLICABLE ONLY IN TH E CASE OF SELLER FOR THE PURPOSE OF SECTION 48 OF THE ACT. SINCE THE AS SESSEE WAS THE PURCHASER OF AGRICULTURAL LAND, THEREFORE, IN VIEW OF THE ABOVE DECISION, THE PROVISIONS OF SECTION 50C WERE NOT APPLICABLE I N THE CASE OF THE ASSESSEE. THEREFORE, WE CONFIRM THE ORDER OF THE C IT(A) AND DISMISS THE GROUND OF THE APPEAL OF THE REVENUE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 10 TH APRIL, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 10 /04/2015