Shri Nilesh H. Jariwala, Surat V. The Income Tax Officer,Ward-2(2), Surat

ITA 2532/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8740 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 15-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Fair market value
• Section: 50C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO. 2532/AHD/2014 / ASSESSMENT YEAR: 2008-09 SHRI NILESH H. JARIWALA, 3/2246-A, SALABAPURA, BALABHAI NI SHERI, SURAT PAN : AATPJ 3690 E VS. THE INCOME-TAX OFFICER, WARD 2 (2), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : DHARMVIR D. YADAV, SR DR / DATE OF HEARING : 03/08/2017 / DATE OF PRONOUNCEMENT: 04/08/2017 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAIN ST THE ORDER OF THE LD. CIT(A)-II, SURAT DATED 14.07.2014 PASSED FO R ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS TAKEN SEVEN GROUNDS OF APPEAL, BUT HIS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE VIZ. THE LD. CIT(A) HAS ERRED IN CONFIRMING PENALTY OF RS.24,489/-, WHICH WAS IMPOSED BY THE AS SESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE THE ACT). 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME ON 10.09.2008 DECLARING TOTAL INCOME OF R S.76,948/-. IT CAME TO THE NOTICE OF THE ASSESSING OFFICER THAT THE ASSESS EE HAD 1/18 TH SHARE IN A ITA NO. 2532/AHD/2014 SHRI NILESH H. JARIWALA VS. ITO FOR AY: 2008-09 2 PIECE OF LAND. IT WAS SOLD DURING THE ACCOUNTING Y EAR RELEVANT TO THIS ASSESSMENT YEAR. THE SALE CONSIDERATION CAME TO TH E ASSESSEE WAS OF RS.13,08,600/-. THE LD. ASSESSING OFFICER HAS OBSE RVED THAT AS PER SECTION 50C OF THE ACT, SALE CONSIDERATION WOULD COME TO AS SESSEES SHARE AT RS.24,91,704/-. THUS, THERE WAS UNDERSTATEMENT OF SALE PROCEEDS OF IMMOVABLE PROPERTIES AT RS.11,73,104/-. THE ASSESS EE PRAYED THAT FAIR MARKET VALUE OF THE PROPERTY BE DETERMINED AS PER S ECTION 50C(2) OF THE ACT. THE LD. DVO HAS WORKED OUT THE FAIR MARKET VAL UE OF THE PROPERTY AND THE SHARE ALLOCATED TO THE ASSESSEE WAS OF RS.1 6,08,000/-. THUS, THE DIFFERENCE OF RS.2,89,400/- WAS ADDED TO THE CAPITA L GAIN COMPUTATION OF THE ASSESSEE. LD. ASSESSING OFFICER HAS INITIATED P ENALTY PROCEEDINGS AND IMPOSED A PENALTY OF RS.24,489/-. 4. APPEAL TO THE LD. CIT(A) DID NOT BRING ANY RELIE F. 5. BEFORE US, NO ONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE. WITH THE ASSISTANCE OF LD. DEPARTMENTAL REPRESENTATIVE, WE HAVE GONE THROUGH THE RECORD CAREFULLY. ON DUE CONSIDERATION OF THE RECORD, WE ARE OF THE VIEW THAT NO PENALTY IS IMPOSABLE UPON THE ASSESSEE . IT WAS AN ADDITION WHICH WAS MADE WITH THE HELP OF DEEMING FICTION. T HERE IS HUGE VARIANCE BETWEEN THE ACTUAL SALE CONSIDERATION RECE IVED BY THE ASSESSEE AND THE DEEMED SALE CONSIDERATION WITH THE HELP OF SECTION 50C OF THE ACT. WHEN THE DVO HAS DETERMINED THE FAIR MARKET V ALUE OF THE PROPERTY, A THIRD RATE CAME VIZ. (I) RS. 24,91,704/ - AS PER SECTION 50C OF THE ACT, (II) RS.13,08,600/- AS PER ACTUAL SALE CON SIDERATION DISCLOSED BY THE ASSESSEE AND (III) RS.16,08,000/- AS PER DVOS VALUATION. THESE VARIATIONS ITSELF SUGGEST THAT THERE CANNOT BE DELI BERATE ATTEMPT AT THE END ITA NO. 2532/AHD/2014 SHRI NILESH H. JARIWALA VS. ITO FOR AY: 2008-09 3 OF THE ASSESSEE FOR CONCEALING THE PARTICULARS OF I NCOME. THEREFORE, WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE PEN ALTY. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE COURT ON 4 TH AUGUST, 2017 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 04/08/2017 BIJU T., SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! # / CONCERNED CIT 4. # ( ) / THE CIT(A) 5. & ! , ! , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) &, / ITAT, AHMEDABAD