CLIFFORD MENEZES, MUMBAI V. ASST CIT 19(2), MUMBAI

ITA 267/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2014 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 12-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: DEEPAK TRALSHWAL A
• Keywords: Revised return

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.267/MUM/2015 ASSESSMENT YEAR: 2010-11 MR. CLIFFORD MENEZES, FLAT NO.2, SAIBABA SOCIETY, VAKOLA, SANTACRUZ (E), MUMBAI-400055 / VS. ACIT - 19(2), PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400012 ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO. ABAPM7027Q !' # / ASSESSEE BY SHRI DEEPAK TRALSHWALA $ / REVENUE BY MS. BEENA SANTOSH- DR % $& ' # ( / DATE OF HEARING : 21/11/2016 ' # ( / DATE OF ORDER: 21/11/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 30/10/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE 2 ONLY CONSOLIDATED GROUND RAISED BY THE ASSESSEE IS WITH RESPECT TO SALE VALUE OF THE FLAT AS PER STAMP DUTY VALUATION AND THE AMOUNT MENTIONED IN THE SALE AGREEMENT. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI DEEPAK TRALASHWALA, CONTENDED THAT THE FACTUAL MATRIX WAS NOT CONSIDERED BY THE AUTHORITIES IN A REQUIRED MANNER BECAUSE THE AREA OF THE FLAT, AS PER THE AGREEMENT IS DIFFERENT, WHEREAS, THE VALUATION AUTHORITY VALUED THE CAPITAL GAIN AS THE AREA OF THE FLAT IS 1000 SQ. FT. WHICH NEEDS VERIFI CATION. IT WAS EXPLAINED BY THE LD. COUNSEL THAT THE ACTUAL AREA O F THE FLAT IS 698.725 SQ. FT., AS PER THE PLAN SANCTIONED BY BMC, WHEREAS, THE LD. ASSESSING OFFICER TOOK THE AREA AT 1000 SQ. FT. FOR VALUATION, THUS, THE VALUATION ADOPTED BY THE STAMP DUTY VALUATION AUTHORITIES IS NOT THE TRUE BASIS FOR CAL CULATING THE CAPITAL GAIN. THE LD. DR, THOUGH DEFENDED THE ADDIT ION BUT DID NOT CONTROVERT THE ASSERTION OF THE ASSESSEE FOR GE TTING THE AREA OF THE FLAT TO BE MEASURED AGAIN. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL DECLARED INC OME OF RS.24,16,374/- AND LATER ON FILED REVISED RETURN DE CLARING INCOME AT RS.30,58,081/-. THE LD. ASSESSING OFFICE R DETERMINED THE INCOME AT RS.71,42,780/-. THE ASSES SEE SOLD A FLAT NUMBER 101, DATTAR APARTMENT, VAKOLA, MUMBAI AND DECLARED LONG TERM CAPITAL GAIN IN HIS COMPUTATION OF INCOME, DECLARING GAIN OF RS.6,41,709/-. THIS STAMP DULY VA LUATION 3 AUTHORITY, ON THE BASIS OF AIR INFORMATION ADOPTED THE VALUE AT RS.67,31,000/-. THE ASSESSEE FURNISHED THE COPY OF THE PURCHASES AGREEMENT DATED 18/09/1991 AND ALSO LEAVE AND LICENSE AGREEMENT FOR THE PROPERTY. THE CLAIM OF T HE ASSESSEE IS THAT AREA OF THE FLAT WAS WRONGLY TAKEN AS 1000 SQ. FT. AGAINST THE ACTUAL AREA OF 698 SQ. FT. WITHOUT GOIN G INCOME MUCH DELIBERATION, WE ARE OF THE VIEW, THAT IN THE INTEREST OF JUSTICE, THE EXACT AREA OF THE FLAT HAS TO BE CALCU LATED FIRST SO AS TO ARRIVE AT A CORRECT FIGURE IN ACCORDANCE WITH LAW, THUS, WE DIRECT THE ASSESSING OFFICER TO EXAMINE THE CLAI M OF THE ASSESSEE AND AFTER PROVIDING A DUE OPPORTUNITY OF B EING HEARD DECIDE IN ACCORDANCE WITH LAW. THE LD. ASSESSING OF FICER IS FURTHER DIRECTED TO MEASURE THE ACTUAL AREA OF THE FLAT, DOCUMENTARY EVIDENCE, IF ANY AND THEN DECIDE THE IS SUE. THUS, THIS APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 21/11/2016. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; * DATED : 21/11/2016 F{X~{T? P.S / +$ 4 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 0./ / THE RESPONDENT. 3. 1 1 % 2# ( ,- ) / THE CIT, MUMBAI. 4. 1 1 % 2# / CIT(A)- , MUMBAI 5. 4$5 # , 1 ,-( , 6 , % & / DR, ITAT, MUMBAI 6. 7! 8& / GUARD FILE. / BY ORDER, 04-# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI,