Sri Anup Kumar Chakravarti, Durgapur V. ACIT, Circle - 1(1), Kolkata, Kolkata

ITA 2285/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1608 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 08-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Fair market value
• Section: 143(3)

Judgement Text

1 I.T.A. NO. 2285/KOL/2017 ASSESSMENT YEAR : 2014-2015 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 2285/KOL./2017 ASSESSMENT YEAR : 2014-2015 SRI ANUP KUMAR CHAKRAVARTI,........................ ..........................APPELLANT 2/23, EINSTEIN AVENUE, P.O. DURGAPUR, PIN CODE NO. 713 205 [PAN: ABYPC 7999 K] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ...................RESPONDENT CIRCLE-1(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI H.V. BHARDWAJ, FCA, FOR THE APPELLANT SHRI SANJAY MUKHERJEE, ADDITIONAL CIT, D.R., FOR TH E RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 29, 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 31, 2018 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-22 KOLKATA DAT ED 24.03.2017 AND THE SOLITARY ISSUE RAISED THEREIN RELATES TO THE AD DITION OF RS.14,62,510/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON THE BASIS OF STAMP DUTY VALUATION OF PROPERTY ON TH E DATE OF CONVEYANCE DEED. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO WAS A NON- RESIDENT DURING THE YEAR UNDER CONSIDERATION. THE R ETURN OF INCOME FOR THE SAID YEAR WAS FILED BY HIM ON 26.03.2015 DECLAR ING TOTAL INCOME OF RS.5,35,080/-. THE ASSESSEE HAD PURCHASED A PROPERT Y FOR A CONSIDERATION OF RS.30,19,030/- FOR WHICH THE DEED OF CONVEYANCE WAS EXECUTED ON 07.11.2013. IN THIS REGARD, IT WAS NOTED BY THE ASS ESSING OFFICER THAT THE FAIR MARKET VALUE OF THE SAID PROPERTY WAS ASSESSED BY THE REGISTERING 2 I.T.A. NO. 2285/KOL/2017 ASSESSMENT YEAR : 2014-2015 AUTHORITY AT RS.44,81,540/- FOR THE STAMP DUTY PURP OSE. HE, THEREFORE, INVOKED SECTION 56(2)(VII)(B) OF THE ACT AND ADDED THE DIFFERENCE OF RS.14,62,510/- (RS.44,81,540/- MINUS RS.30,19,030/- ) TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER S ECTION 143(3) VIDE AN ORDER DATED 09.12.2016. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) DISPUTING THE ADDITION OF RS.14,62,510 /- MADE BY THE ASSESSING OFFICER ON THE BASIS OF STAMP DUTY VALUAT ION MADE BY THE REGISTERING AUTHORITY AS ON THE DATE OF CONVEYANCE DEED. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT( APPEALS), IT WAS SUBMITTED BY THE ASSESSEE THAT THE AGREEMENT FOR PU RCHASE OF THE PROPERTY, I.E. RESIDENTIAL FLAT HAD BEEN ENTERED IN TO ON 12.02.2010 ITSELF AND THE REFERENCE TO THE SAID AGREEMENT WAS CLEARLY MADE IN THE DEED OF CONVEYANCE EXECUTED ON 07.11.2013. IT WAS ALSO SUBM ITTED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) THAT THE S UM OF RS.1,00,000/- WAS PAID TO THE BUILDER AGAINST THE PURCHASE OF THE SAID PROPERTY BY CHEQUE ON 15.10.2009 AND A FURTHER SUM OF RS.3,52,8 55/- WAS ALSO PAID BY CHEQUE ON THE DATE OF EXECUTION OF AGREEMENT, I.E. 12.02.2010. RELIANCE IN THIS REGARD WAS PLACED BY THE ASSESSEE ON THE 1 ST AND 2 ND PROVISO TO SECTION 56(2)(VII)(B) TO CONTEND THAT THE STAMP DUT Y VALUE ON THE DATE OF AGREEMENT FOR PURCHASE MUST BE TAKEN AND NOT THE ST AMP DUTY VALUE ON THE DATE OF THE REGISTRATION OF DEED OF CONVEYANCE. THE LD. CIT(APPEALS) DID NOT ACCEPT THIS CONTENTION OF THE ASSESSEE BY O BSERVING THAT IT WAS UNSUPPORTED AND UNCONVINCING. HE ALSO OBSERVED THAT NO DOCUMENTS HAD BEEN SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER NOR ANY SPECIFIC ARGUMENT WAS RAISED DURING THE COURSE OF A SSESSMENT PROCEEDINGS BY RELYING ON THE 1 ST AND 2 ND PROVISO TO SECTION 56(2)(VII)(B). HE ACCORDINGLY PROCEEDED TO CONFIRM THE ADDITION MA DE BY THE ASSESSING OFFICER ON THIS ISSUE. AGGRIEVED BY THE ORDER OF TH E LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 3 I.T.A. NO. 2285/KOL/2017 ASSESSMENT YEAR : 2014-2015 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS REITERATED BEFORE THE TRIBUNAL THE CONTENTION RAISE D ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) BY RELYING ON THE 1 ST AND 2 ND PROVISO TO SECTION 56(2)(VII)(B) THAT THE AMOUNT OF CONSIDE RATION FOR THE TRANSFER OF IMMOVABLE PROPERTY HAVING BEEN FIXED BY THE AGRE EMENT EXECUTED ON 12.02.2010 AND THE PART OF SUCH CONSIDERATION HAVIN G BEEN PAID BY THE ASSESSEE BY CHEQUE BEFORE THE DATE OF THE SAID AGRE EMENT, THE STAMP DUTY VALUE ON THE DATE OF THE SAID AGREEMENT MUST BE TAK EN FOR THE PURPOSE OF SECTION 56(2)(VII)(B) AND NOT THE STAMP DUTY VALUE AS ON THE DATE OF THE REGISTRATION OF CONVEYANCE DEED. IN SUPPORT OF THIS CONTENTION, HE HAS ALSO FILED THE COPY OF AGREEMENT DATED 12.02.2010 A ND POINTED OUT THAT THE REFERENCE TO THE SAID AGREEMENT WAS MADE EVEN I N THE DATE OF CONVEYANCE DEED EXECUTED ON 06.11.2013. HE, HOWEVER , HAS AGREED THAT THE COPY OF AGREEMENT DATED 12.02.2010 WAS NOT PROD UCED BEFORE THE ASSESSING OFFICER AS THE SAME WAS NEVER SPECIFICALL Y ASKED FOR BY HIM. AS RIGHTLY POINTED OUT BY THE LD. D.R. FROM THE RELEVA NT PORTION OF THE ASSESSMENT ORDER, SPECIFIC OPPORTUNITY IN THIS REGA RD WAS GIVEN BY THE ASSESSING OFFICER TO THE ASSESSEE TO OFFER HIS EXPL ANATION ON THE ISSUE OF APPLICABILITY OF SECTION 56(2)(VII)(B), BUT THE AUT HORIZED REPRESENTATIVE OF THE ASSESSEE DID NOT RAISE ANY OBJECTION TO THE ADDITION OF RS.14,62,510/- PROPOSED TO BE MADE BY THE ASSESSING OFFICER ON THE BASIS OF STAMP DUTY VALUATION OF THE PROPERTY AS ON THE D ATE OF CONVEYANCE DEED. MOREOVER, THE FACT THAT THERE WAS SUCH AN AGR EEMENT EXECUTED ON 12.02.2010 AND REFERENCE TO THE SAID AGREEMENT WAS MADE IN THE DEED OF CONVEYANCE WAS ALSO NOT BROUGHT TO THE NOTICE OF TH E ASSESSING OFFICER BY THE ASSESSEE. EVEN THE RELEVANT ASPECT OF PART PAYM ENT HAVING BEEN MADE BY THE ASSESSEE AGAINST THE CONSIDERATION SO AGREED BY THE AGREEMENT DATED 12.02.2010 WELL BEFORE THE EXECUTION OF THE S AID AGREEMENT WAS ALSO NOT BROUGHT TO THE NOTICE OF THE ASSESSING OFF ICER. KEEPING IN VIEW ALL THESE FACTS OF THE CASE, I FIND MERIT IN THE CONTEN TION RAISED BY THE LD. D.R. THAT THE CLAIM OF THE ASSESSEE MADE ON THE BASIS OF 1 ST AND 2 ND PROVISO TO SECTION 56(2)(VII)(B) REQUIRES VERIFICATION BY THE ASSESSING OFFICER. THE 4 I.T.A. NO. 2285/KOL/2017 ASSESSMENT YEAR : 2014-2015 IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THIS ISSU E IS ACCORDINGLY SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER VERIFYING THE CLAIM OF THE ASSESSEE BASED ON THE 1 ST AND 2 ND PROVISO TO SECTION 56(2)(VII)(B) FROM THE RELEVANT DOCUMENTARY EVIDENCE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DAY OF JANUARY, 2018. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 31 ST DAY OF JANUARY, 2018 COPIES TO : (1) SRI ANUP KUMAR CHAKRAVARTI, C/O. V.N. PUROHIT & CO., CHARTERED ACCOUNTANTS, DIAMOND CHAMBERS, UNIT-III, 4 TH FLOOR, SUIT NO . 4G, 4, CHOWRINGHEE LANE, KOLKATA-700 016 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX(APPEALS)-22, KOLKA TA; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.