Shri Anil Gopiram Kokra, Ahmedabad V. The Income Tax Officer, Ward-5(3)(4), Ahmedabad

ITA 2649/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8243 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 14-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRASSON KABRA
• Assessee Lawyers: P K AJMERA
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Fair market value
• Section: 50C

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO. 2649/AHD/2016 / ASSESSMENT YEAR: 2012-13 ANIL GOPIRAM KOKRA D-307, GROUND FLOOR SUMEL BUSINESS PARK-2 B/H. VANIJYA BHAVAN KANKARIYA, AHMEDABAD. PAN : AADPK 7102 L VS ITO, WARD-5(3)(4) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI P.K.AJMERA, AR REVENUE BY : SHRI PRASSON KABRA, SR.DR / DATE OF HEARING : 13/04/2018 /DATE OF PRONOUNCEMENT : 10/05/2018 O R D E R PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF ASSES SEE AGAINST ORDER OF LD.CIT(A), AHMEDABAD-5 DATED 15.6.2016 FOR ASSTT .YEAR 2012-13. 2. REGISTRY HAS POINTED OUT THAT APPEAL FILED BY TH E ASSESSEE IS BARRED BY 14 DAYS. IN ORDER TO EXPLAIN THE DELAY, THE ASS ESSEE HAS FILED CONDONATION APPLICATION AS WELL AS HIS AFFIDAVIT. IN THAT AFFIDAVIT HE DEPOSED THAT ORDER OF LD.CIT(A) WAS RECEIVED ON 1.8 .2016. IT WAS HANDED OVER TO THE TAX CONSULTANT FOR FILING APPEAL . DUE DATE OF FILING APPEAL WAS 30.9.2016. BUT TAX CONSULTANT WAS BUSY IN TIME BARRING WORK AND/OR FILING OF TAX RETURNS OF INCOME. ASSESSEE HA S FAMILY PROBLEMS. HE WAS NOT WELL AND ON ACCOUNT OF CUMULATIVE EFFECT OF ALL THESE ISSUES, ITA NO.2649/AHD/2016 - 2 - THE APPEAL BECAME TIME BARRED BY 14 DAYS. THE LD.C OUNSEL FOR THE ASSESSEE PRAYED FOR CONDONATION OF DELAY. ON THE O THER HAND, THE LD.DR OPPOSED PRAYER OF THE ASSESSEE. 3. ON DUE CONSIDERATION OF THE ABOVE FACTS AND CIRC UMSTANCES, I AM CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFIC IENT REASONS FOR NOT FILING APPEAL BEFORE THE TRIBUNAL IN TIME. THERE I S NO DELIBERATE ATTEMPT AT THE END OF THE ASSESSEE TO MAKE HIS APPEAL TIME BARRED BECAUSE BY MAKING AN APPEAL TIME BARED, THE ASSESSEE WAS NOT G OING TO GAIN ANYTHING. THEREFORE, I CONDONE THE DELAY IN FILING THE APPEAL AND DECIDE THE SAME ON MERIT. 4. ON MERIT, GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING COMPUTATION OF CAPITAL GAIN BY ADOPTI NG THE SALE CONSIDERATION EQUIVALENT TO THE AMOUNT CONSIDERED B Y THE STAMP DUTY VALUATION AUTHORITY FOR THE PURPOSE OF PAYMENT OF S TAMP DUTY. 5. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HIS RETURN OF INCOME ON 30.9.2012 DECLARING TOTAL INCOME AT RS.6, 73,870/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT N OTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE AO THAT THE ASSESSEE H AD SOLD HIS HOUSE FOR A CONSIDERATION OF RS.40 LAKHS. SIMILARLY, HE HAS S OLD HIS OFFICE PREMISES FOR A CONSIDERATION OF RS.10 LAKHS. ON FURTHER VER IFICATION, IT REVEALED THAT FOR THE PURPOSE OF PAYMENT OF STAMP DUTY VALUE OF HOUSE WAS ADOPTED AT RS.55,14,286/- AND OFFICE AT RS.13,30,61 2/-. ON STRENGTH OF SECTION 50C, THE LD.AO CONFRONTED THE ASSESSEE AS T O WHY SALE CONSIDERATION BE NOT DEEMED EQUIVALENT TO THE VALUE ADOPTED FOR THE ITA NO.2649/AHD/2016 - 3 - PURPOSE OF STAMP DUTY PAYMENT. ACCORDING TO THE AO , A SHOW CAUSE NOTICE VIDE ORDER-SHEET ENTRY DATED 23.3.2015 WAS G IVEN TO THE ASSESSEE AND AUTHORIZED REPRESENTATIVE DID NOT OBJECT. ACCO RDINGLY, HE WORKED OUT NET LONG TERM CAPITAL GAIN OF RS.8,80,757/- AND MADE ADDITION. DISSATISFIED WITH THE ASSESSMENT ORDER, THE ASSESSE E CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). THE ASSESSEE CONTENDE D THAT THE AO HAS NOT GIVEN ANY SHOW CAUSE NOTICE, HENCE HIS ORDER IS NOT SUSTAINABLE. HOWEVER, THE LD.CIT(A) DID NOT ACCEPT CONTENTIONS O F THE ASSESSEE AND UPHELD COMPUTATION OF LONG CAPITAL GAIN AS COMPUTED BY THE AO. 6. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD. SECTION 50C PROVIDES THAT WHERE THE CO NSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE AD OPTED OR ASSESSED BY ANY AUTHORITY FOR THE PURPOSE OF PAYMENT OF STAMP D UTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED SHA LL FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE C ONSIDERATION. IN OTHER WORDS, FULL CONSIDERATION MENTIONED IN SECTION 48 I S TO BE REPLACED BY THE CONSIDERATION ON WHICH VALUE OF THE PROPERTY WA S ADOPTED FOR THE PURPOSE OF PAYMENT OF STAMP DUTY. HOWEVER, SUB-SEC TION (2) OF SECTION 50C PROVIDES THAT WHERE (A) THE ASSESSEE CLAIMS BEF ORE AO THAT VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALU ATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; OR SUCH VALUE HAS NOT BEEN DI SPUTED IN ANY APPEAL OR REVISION BEFORE ANY AUTHORITY OR COURT, THE AO M AY REFER THE VALUATION OF THE CAPITAL ASSETS TO A VALUATION OFFICER. THE G RIEVANCE OF THE ASSESSEE IS THAT AS PER SECTION SUB-CLAUSE (2) OF SECTION 50 C HE HAS A RIGHT TO ITA NO.2649/AHD/2016 - 4 - REQUISITE THE ASSESSEE FOR MAKING A REFERENCE TO TH E DVO FOR DETERMINING VALUE OF THE PROPERTY. IN OTHER WORDS, INSTEAD OF ADOPTING SALE CONSIDERATION EQUIVALENT TO THE AMOUNT ON WHICH STA MP DUTY WAS PAID, THE LD.AO OUGHT TO HAVE REFERRED IT TO THE DVO. TH US, OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE, BECAUSE HE CONFRONTED TH E ASSESSEE ON 23.3.2015 AND ON THAT VERY DAY HE HAS PASSED THE AS SESSMENT ORDER. THE LD.AO HAS RECORDED THAT AUTHORIZED REPRESENTATIVE O F THE ASSESSEE DID NOT OBJECT TO THIS PROPOSITION ABOUT ADOPTING THE S ALE CONSIDERATION EQUIVALENT TO THE AMOUNT TAKEN BY STAMP DUTY VALUAT ION AUTHORITY. ON THE HAND, I FIND THAT IN THE GROUNDS OF APPEAL TAKE N BEFORE THE LD.FIRST APPELLATE AUTHORITY, THE ASSESSEE HAS SPECIFICALLY TAKEN THE OBJECTION THAT HIS AUTHORIZED REPRESENTATIVE DID NOT AGREE WI TH THE PROPOSITION OF THE AO. THUS, THIS STAND OF THE ASSESSEE WOULD IND ICATE THAT PROPER OPPORTUNITY WAS NOT GIVEN BY THE AO. THEREFORE, I SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES BELOW AND REMIT THIS ISS UE TO THE FILE OF THE AO. THE LD.AO SHALL CALL FOR REPORT FROM THE DVO A S PER SECTION 50C(2) OF THE INCOME TAX ACT. HE THEREAFTER WOULD DETERMI NE CAPITAL GAIN ASSESSABLE IN THE HANDS OF THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 10 TH MAY, 2018. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 10/05/2018