Parimal Somnathbhai Pandit, Ahmedabad V. ITO, ward-3(2)(4), Ahmedabad

ITA 272/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2011 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-08-2019
• Assessment Year: 2015-2016
• Appeal Filed On: 25-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMASHANKAR
• Assessee Lawyers: ARTIBEN N. SHAH
• Section: 142(1); 133(6)

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASSEM AHMED, ACCOUNTANT MEMBER ./ I.T.A. NO. 272/AHD/2019 ( / ASSESSMENT YEAR: 2015-16) PARIMAL SOMNATHBHAI PANDIT 6, FIRSTCHOICE ASSOCIATION MEGHANA BUNGALOWS, B/H. INDUCTOTHERM FACTORY, SOUTH BOPAL, AHMEDABAD- 380058 / VS. ITO WARD- 3(2)(4), AHMEDABAD ./ ./ PAN/GIR NO. : AHU PP1 322 R ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ARTIBEN N. SHAH, AR / RESPONDENT BY : SHRI UMA SHANKAR, SR. DR / DATE OF HEARING 23/08/2019 !'# / DATE OF PRONOUNCEMENT 06/09/2019 $%/ O R D E R PER MAHAVIR PRASAD - JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF LD. CIT(A)-3/ITO WARD-3(2)(4)/354/2017-18 DATED 12.12.2018 ARISING OUT OF ASSESSMENT ORDER DATED 27 .12.2017 AND ASSESSEE HAS TAKEN FOLLOWING GROUNDS: 1. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) -3, AHMEDABAD HAS ERRED IN LAW AND ON FACTS OF THE CAS E BY CONFIRMING THE ADDITION OF RS. 12,14,300/- U/S. 56 (2)(VII) OF THE I.T. ACT, 1961 MADE BY THE ASSESSING OFFICER IN RE SPECT OF PURCHASE OF IMMOVABLE PROPERTY BY RELYING ON THE M ARKET VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY THOUGH THE AREA ITA NO.272/AHD/2019 [PARIMAL SOMNATHBHAI PANDIT VS. ITO] A.Y. 2015-16 - 2 - OF LAND PURCHASED WAS 75 SQ. MTRS LESS THAN THE AR EA OF 363 SQ. MTRS STATED IN THE DOCUMENT OF SALE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -3, AHMEDABAD HAS ERRED IN LAW AND ON FACTS OF THE CAS E BY NOT TAKING INTO CONSIDERATION THE ABOVE DEDUCTION OF 7 5 SQ. MTRS MADE ACCORDING TO CUTTING OF 15 MTRS ON PLOT NO. 6 ACCORDING TO AUDA TP ROAD SCHEME RESULTING INTO REDUCTION IN THE AREA BY 75 SQ. MTRS. 2. FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION ASSESSEE HAS PURCHASED NON-AGRICULTURE PLOT SITUATE D AT MOUJE BOPAL, BLOCK NO. 355/A FOR A CONSIDERATION OF RS. 4 1,40,000/- AS PER SALE DEED EXECUTED IN THE OFFICE OF THE SUB REG ISTRAR (AHMEDABAD-9), BOPAL (REG. NO. 2154/2014). AGAINST THE SAID PROPERTY, ASSESSEE HAS PAID STAMP DUTY OF RS. 2,62, 500/-. IN VIEW OF THE ABOVE, THE MARKET VALUE (JANTRI RATE) OF THE PROPERTY IN QUESTION WAS OBTAINED FROM SUB REGISTRAR, (AHMEDABA D-9), BOPAL BY ISSUING NOTICE U/S. 133(6) OF THE ACT. IN RESPO NSE, SUB- REGISTRAR (AHMEDABAD-9), BOPAL VIDE LETTER DATED 24 .11.2017 REPORTED THE MARKET VALUE OF THE PROPERTY AT RS. 53 ,54,300/- AS AGAINST RS. 41,40,000/- SHOWN IN THE SALE DEED. IN VIEW OF THE ABOVE, AS PER ORDER SHEET ENTRY DATED 30.11.2017, A R OF THE ASSESSEE WAS ASKED AS TO WHY THE PROVISIONS OF SECT ION 56(2)(VII) SHOULD NOT BE APPLIED IN THIS CASE AND HE WAS REQUE STED TO FURNISH HIS REPLY, IF ANY, BY 06.12.2017. AS NO SUCH REPLY WAS RECEIVED BY THIS OFFICE BY THAT DATE, A NOTICE U/S. 142(1) D ATED 07.12.2017 WAS ISSUED TO THE ASSESSEE MENTIONING THE ABOVE FAC TS AND FIXING THE HEARING ON 13.12.2017. IN RESPONSE, ASSESSEE V IDE SUBMISSION DATED 26.12.2017 STATED AS UNDER:- I HAVE PURCHASED A PLOT AT BOPAL AS PER THE COPY O F SALE DEED ALREADY FILED. THE VALUE OF THE PLOT AS PER THE DE ED EXECUTED IS RS. 41,40,000/- WHEREAS I HAVE PAID STAMP DUTY ON THE A MOUNT OF RS. 53,54,250/- AS PER THE VALUATION. IN THIS CONTEXT, IT MAY KINDLY BE ITA NO.272/AHD/2019 [PARIMAL SOMNATHBHAI PANDIT VS. ITO] A.Y. 2015-16 - 3 - NOTED THAT THE VALUATION AUTHORITY HAS VALUED PLOT ON THE BASIS OF 363.00 SQ. MTR (AS PER COPY OF 7/12 RECORD ATTACHED ). WHEREAS THERE IS LAND CUTTING OF 75.00 SQ. MTR. AS PER T.P. SCHE ME. A COPY OF THE SAME IS ATTACHED HEREWITH. THEREFORE, THE VALUE OF THE LAND SHOULD BE CALCULATED ON 288.00 SQ. MTR (366.00-75.00SQ. MT R) AND IN FACT THE DEAL FOR THE PURCHASE OF LAND IN ON THIS BASIS ONLY . I HAVE ATTACHED A COPY OF PLAN FOR CONSTRUCTION WHICH CLEARLY SHOWS P LOT AREA AS PER RECORD 363.00 SQ. MTR AND PLOT AREA AS PER SITE (AF TER DEDUCTION) 288.00 SQ. MTR. THEREFORE, IN VIEW OF ABOVE, I HUMBLY REQUEST YOUR GOODS SELVES TO KINDLY ALLOW THE RATE FOR THE PURCHASE OF LAND AS P ER THE RATE MENTIONED IN SALE DEED. HENCE THE PROVISIONS OF SEC TION 56(2)(VII) OF I.T. ACT, 1961 WILL NOT BE APPLICABLE. BUT THE LD. AO WAS NOT AGREE WITH THE CONTENTION O F THE ASSESSEE AS ASSESSEE HAS NOT DISPUTED THE STAMP DUT Y ADOPTED IN RESPECT OF PROPERTY AND DETERMINED THE MARKET VALUE OF THE PROPERTY AS PER STAMP VALUATION AUTHORITY TO THE TU NE OF RS. 53,54,300/- AS PER SEC. 56(2)(VII) OF THE ACT AS AG AINST RS. 41,40,000/- SHOWN BY THE ASSESSEE AND A DIFFERENCE OF RS. 12,14,300/- WAS ADDED TO THE TOTAL INCOME OF THE AS SESSEE UNDER SEC. 56(2)(VII) OF THE ACT AGAINST THE SAID ADDITIO N. ASSESSEE HAS PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT (A) WHO CONFIRMED THE ACTION OF THE LD. AO. 3. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER THE APPELLANT CONTENTION IS THAT AS PER THE L AND REVENUE 7/12 DOCUMENT RECORDS THE AREA OF LAND AT BLOCK NO. 355/A, F.P. NO. 84/1 SUB PLOT NO. 6 IS 363 SQUARE METER AT BOAP L, AHMEDABAD. THERE HAS BEEN A CUTTING OF 15 METERS O N PLOT NO. 6 ACCORDING TO THE AUDA T.P. ROAD SCHEME, WHICH RESUL TED IN 75 SQUARE METER CUTTING ON BLOCK NO. 355/A IN PLOT NO. 6, BOPAL, AHMEDABAD. AT THE TIME OF PREPARATION OF STAMP DUT Y DOCUMENT THE AREA OF LAND IS CONSIDERED 363 SQUARE METER INS TEAD OF 288 SQUARE METER (I.E. 363 SQUARE METERS LESS 75 SQUARE METERS CUTTING ITA NO.272/AHD/2019 [PARIMAL SOMNATHBHAI PANDIT VS. ITO] A.Y. 2015-16 - 4 - AS PER THE T.P. SCHEME) BECAUSE THE LAND REVENUE RE CORDS ARE NOT UPDATED AS THE NEW AUDA T.P. ROAD SCHEME. AS PER T HE SALE DEED MADE BY THE TRANSFEROR MR. PARIMAL SOMANTH PAN DIT TRANSFERRED THE PROPERTY AT A CONSIDERATION OF RS. 41,40,000/- WHICH WAS BASED ON LAND AVAILABLE TO USE AFTER THE CUTTING AS PER THE NEW AUDA T.P. ROAD SCHEME WHICH IS 288 SQUARE M ETER ONLY. BUT TO EXECUTE THE TRANSACTION WITHOUT ANY FURTHER DELAY THE TRANSFEROR AND TRANSFEREE AGREED TO PAY THE STAMP D UTY ON THE TOTAL PLOT AREA OF 363 SQUARE METER THOUGH THE ACTU AL PLOT AREA TRANSFERRED WAS 288 SQUARE METER ONLY. EVEN THOUGH CONSTRUCTION PERMISSION ON THIS PLOT GIVEN BY THE AHMEDABAD MUNI CIPAL CORPORATION THE AUTHORITY FOR THE SAME, IS OF 288 S QUARE METERS ONLY. THE APPELLANT HAS SUBMITTED A COPY OF CONSTR UCTION PLAN SHOWING THE PLOT AREA AS PER RECORD IS 363 SQUARE M ETER AND PLOT AREA AS PER SITE (AFTER DEDUCTION) 288.00 SQUARE ME TER. HOWEVER, THE AO HAS MADE ADDITION OF RS. 12,14,300/- BY INVO KING THE PROVISION OF SEC. 56(2)(VII). THE APPELLANT WANTED TO EXECUTE THE SALE DEED AS SOON AS POSSIBLE AND DOESNT WANT TO B E PART OF ANY LEGAL PROCEEDING AND STAMP DUTY WAS PAID WITH BONA FIDE INTENTION. 4. LD. AR CONTENTION IS THAT AT THE TIME OF PREPARA TION OF STAMP DUTY DOCUMENT THE AREA OF LAND WAS CONSIDERED 363 S QUARE METER INSTEAD OF 288 SQUARE METER THAT IS 75 SQUARE METER WAS GONE FOR TOWN PLAN SCHEME PURPOSE AND LAND REVENUE WERE NOT UPDATED AS PER THE NEW AUDA T.P. ROAD SCHEME FOR RECTIFICATION OF THIS MISTAKE IS LONG TIME CONSUMING PROCESS AND SELLER A ND BUYER WERE BOTH IN HURRY FOR THE AGREEMENT OF THE ABOVE SAID L AND, THOUGH, PAYMENT WAS MADE AS PER STAMP VALUATION AUTHORITY F OR 363 ITA NO.272/AHD/2019 [PARIMAL SOMNATHBHAI PANDIT VS. ITO] A.Y. 2015-16 - 5 - SQUARE METER BUT ACTUAL POSITION OF 288 SQUARE METE R HAS BEEN TAKEN BY THE APPELLANT. 5. IN THE INTEREST OF THE JUSTICE WE SET-ASIDE THIS MATTER TO THE FILE OF THE LD. AO TO VISIT THE SITE AND MAKE THE M EASUREMENT OF PLOT AND WILL ALSO VERIFY THE LAND ACQUISITION DOCU MENTS OF 75 SQUARE METER BY THE AUTHORITIES FOR TOWN PLANNING S CHEME. THOUGH, APPELLANT HAS ALSO FILED A COPY OF THE PLAN PASSED BY THE ORDER WHEREIN SIZED OF THE PLOT IS 288 SQUARE METER IS MENTIONED. 6. THUS, WE DIRECT THE AO TO MAKE PHYSICAL VERIFICA TION OF THE PLOT AND VERIFY ABOVE SAID DOCUMENTS AND THEREAFTER , WILL DECIDE MATTER IN ACCORDANCE WITH LAW. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. SD/- SD/- (WASEEM AHMED) (MAHA VIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 06/09/2019 TANMAY TRUE COPY !' #' / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. $ / ASSESSEE 3. ) *+ , / CONCERNED CIT 4. ,- / CIT (A) 5. 012 33*+, *+#, 56$)$ / DR, ITAT, AHMEDABAD 6. 289 : / GUARD FILE. BY ORDER / $% , ;/5 *+#, 56$)$ < THIS ORDER PRONOUNCED IN OPEN COURT ON 06/09/2019