Niranjana Paliwal, Noida V. ITO, Noida

ITA 2721/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3903 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 03-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K YADAV SENIOR
• Assessee Lawyers: B B BHAGAT
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND SHRI KULDIP SINGH SHRI KULDIP SINGH SHRI KULDIP SINGH SHRI KULDIP SINGH, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA ITAITA ITA NO NONO NO . .. . 2721/DEL/2017 2721/DEL/2017 2721/DEL/2017 2721/DEL/2017 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2009 2009 2009 2009 - -- - 10 1010 10 SMT. NIRANJANA PALIWAL, SMT. NIRANJANA PALIWAL, SMT. NIRANJANA PALIWAL, SMT. NIRANJANA PALIWAL, E EE E- -- -55, SECTOR 55, SECTOR 55, SECTOR 55, SECTOR- -- -21, 21, 21, 21, JALVAYU VIHAR, JALVAYU VIHAR, JALVAYU VIHAR, JALVAYU VIHAR, NOIDA NOIDA NOIDA NOIDA 201 301. 201 301. 201 301. 201 301. PAN : BKDPP4595F. PAN : BKDPP4595F. PAN : BKDPP4595F. PAN : BKDPP4595F. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2(3), 2(3), 2(3), 2(3), NOIDA. NOIDA. NOIDA. NOIDA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.B. BHAGAT, ADVOCATE. RESPONDENT BY : SHRI A.K. YADAV, SENIOR DR. DATE OF HEARING : 30.10.2017 30.10.2017 30.10.2017 30.10.2017 DATE OF PRONOUNCEMENT : 02.11.2017 02.11.2017 02.11.2017 02.11.2017 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PRESIDENT PRESIDENT PRESIDENT PRESIDENT : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2009-10 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-I, NOI DA DATED 28 TH MARCH, 2017. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. THAT ON FACTS, CIRCUMSTANCES OF THE CASE, THE O RDER U/S 148 OF INCOME TAX ACT, 1961 IS BAD IN LAW AS TH E MATTER REFERRED IN THE REASON RECORDED HAS NOT BEEN SUBJEC T MATTER OF ADDITION IN THE ASSESSMENT ORDER. 2. THAT LD.CIT(APPEALS) HAS ERRED IN HOLDING THAT T HE ASSESSEE ADMITTED THAT THE VALUE OF PLOT IS RS.1,30 ,50,000/- IGNORING THE SUBMISSION OF THE ASSESSEE THAT THE MA RKET VALUE IS LOWER THAN THE CIRCLE RATE. ITA-2721/DEL/2017 2 3. THAT THE LD.CIT(APPEALS) HAS ERRED IN IGNORING T HE FACT THAT SEVERAL PROPERTIES IN THE VICINITY SOLD B ELOW THE CIRCLE RATE. 4. THAT THE LD.CIT(APPEALS) HAS ERRED IN IGNORING T HE FACT THAT THE ASSESSING OFFICER APPLIED THE VALUE A S PER THE SALE DEED WITHOUT REFERRING THE MATTER TO THE VALUA TION OFFICER AS MANDATED U/S 50C(2) OF INCOME TAX ACT, 1 961. 3. HOWEVER, AT THE TIME OF HEARING BEFORE US, NO AR GUMENT WAS RAISED BY THE ASSESSEE WITH REGARD TO GROUND NO.1. ACCORDINGLY, THE SAME IS TREATED AS NOT PRESSED AND REJECTED AS SUCH . 4. GROUND NOS.2, 3 & 4 ARE INTERCONNECTED AND THEY ARE ALL WITH REGARD TO COMPUTATION OF CAPITAL GAINS BY TAKING TH E PRESUMPTIVE SALE PRICE AS PER DEEMING PROVISION OF SECTION 50C. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSEE FILED THE RETURN DECLARING CAPITAL GAIN AS PER ACTUAL SALE CONSIDERATION RECEI VED. HOWEVER, THE ASSESSING OFFICER WORKED OUT THE CAPITAL GAIN BY TA KING THE DEEMED SALE CONSIDERATION AS PROVIDED U/S 50C. THAT THE A SSESSING OFFICER DID NOT ALLOW ANY SPECIFIC OPPORTUNITY TO THE ASSESSEE BEFORE TAKING THE DEEMED SALE CONSIDERATION U/S 50C AS AGAINST THE AC TUAL SALE CONSIDERATION. HE ALSO STATED THAT THE ASSESSEE FI LED THE RETURN DECLARING ACTUAL SALE CONSIDERATION WHICH ITSELF PR OVES THAT THE ASSESSEE HAS OBJECTED TO THE DEEMED SALE CONSIDERAT ION U/S 50C AND, THEREFORE, THE ASSESSING OFFICER OUGHT TO HAVE REFE RRED THE MATTER TO THE VALUATION OFFICER AS PROVIDED IN SECTION 50C(2) . 5. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF AUTHORITIES BELOW. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. FROM A PERUSAL OF THE ASSESSMENT ORDER, IT IS EVIDENT THAT THE ASSESSING OFFICER DID NOT ALLOW ANY SPECIFIC OPPORTUNITY TO THE ASSESSEE BEFORE ADO PTING THE STAMP ITA-2721/DEL/2017 3 DUTY VALUATION AS PROVIDED U/S 50C FOR COMPUTING TH E CAPITAL GAINS AS AGAINST THE ACTUAL SALE PRICE SHOWN BY THE ASSESSEE . IN OUR OPINION, BEFORE ADOPTING THE STAMP DUTY VALUATION FOR THE PU RPOSE OF COMPUTING THE CAPITAL GAINS AS PER SECTION 50C, AN OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE SHOULD BE ALLOWED. WE, THEREFORE, DEE M IT PROPER TO SET ASIDE THE ORDERS OF AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER. WE DI RECT HIM TO ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND IF THE ASSESSEE CLAIMS BEFORE HIM THAT THE VALUE ADOPTED O R ASSESSED BY STAMP VALUATION AUTHORITY EXCEEDS THE FAIR MARKET V ALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER, THEN, HE WILL REFER THE MATTER TO THE VALUATION OFFICER AS PROVIDED IN SUB-SECTION (2) OF SECTION 50C OF THE ACT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEE MED TO BE PARTLY ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 02.11.2017 . SD/- SD/- ( (( ( KULDIP SINGH KULDIP SINGH KULDIP SINGH KULDIP SINGH ) )) ) ( (( ( G.D. AGRAWA G.D. AGRAWA G.D. AGRAWA G.D. AGRAWA L LL L ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER PRESIDENT PRESIDENT PRESIDENT PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SMT. NIRANJANA PALIWAL, SMT. NIRANJANA PALIWAL, SMT. NIRANJANA PALIWAL, SMT. NIRANJANA PALIWAL, E EE E- -- -55, SECTOR 55, SECTOR 55, SECTOR 55, SECTOR- -- -21, JALVAYU VIHAR, 21, JALVAYU VIHAR, 21, JALVAYU VIHAR, 21, JALVAYU VIHAR, NOIDA NOIDA NOIDA NOIDA 201 301. 201 301. 201 301. 201 301. 2. RESPONDENT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -2(3), NOIDA. 2(3), NOIDA. 2(3), NOIDA. 2(3), NOIDA. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR