SONU RAJU PARIYANI, MUMBAI V. ITO WD 22(2)-3, MUMBAI

ITA 276/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48976 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 23-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 11-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VANDANA SAGAR
• Assessee Lawyers: VIRAG SHAH
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI P.M. JAGTAP, A.M. AND SHRI V. DURGA RA O, J.M. ITA NO. 276/MUM/2010 ASSESSMENT YEAR: 2005-06 SONU RAJU PARIYANI, APPELLANT C/O SHIRISH H. SHAH & CO. , MANGROL MANSION 6, RUSTOM SIDHWA MARG, FORT, MUMBAI 400 001. (PAN AILPP1606L) VS. INCOME TAX OFFICER-22(2)-3, RESPONDENT MUMBAI 400 077. APPELLANT BY : MR. VIRAG SHAH RESPONDENT BY : MS. VANDANA SAGAR ORDER PER V. DURGA RAO, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)-33, MUMBAI, PASSED ON 25/09/2009 FOR THE ASS ESSMENT YEAR 2005-06, WHEREIN THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL:- 1. THE LEARNED CIT(A) ERRED IN FACTS AND IN LAW I N JUSTIFYING AND UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT SECTIO N 50C(2) DOES NOT MAKE IT MANDATORY FOR ASSESSING OFFICER TO REFE R THE MATTER TO THE VALUATION OFFICER. 3. THE LEARNED CIT(A) ERRED IN HOLDING THAT REFERE NCE TO VALUATION OFFICER CAN ONLY BE MADE AT THE ASSESSMENT STAGE AN D NOT BEYOND THAT PERIOD AND ACCORDINGLY HELD THAT IT WAS NOT WI TH THE JURISDICTION WITH CIT(A) TO SEND BACK THE MATTER TO THE ASSESSING OFFICER FOR DETERMINING THE VALUE OF THE SAID FLAT. 4. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN NOT REFERRING THE VALUATION OF THE PROPERTY TO A VALUER AS PER SE CTION 50C(2)(A) TO DETERMINE THE FAIR MARKET VALUE OF THE PROPERTY. ITA NO.276/M/2010 SONU RAJU PARIYANI 2 5. WITHOUT PREJUDICE TO THE ABOVE, THE APPELLANT PR AYS THAT YOUR HONOUR MAY KINDLY DIRECT THE ASSESSING OFFICER TO REFER THE MATTER TO THE VALUER TO DETERMINE THE FAIR MARKET V ALUE AND RECOMPUTED THE LONG TERM CAPITAL GAINS ON THE BASIS OF THE VALUE DETERMINED BY THE VALUER OR THE VALUE AS PER STAMP DUTY, WHICHEVER IS LOWER. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS AN INDIVIDUAL. HE RECEIVED INTEREST ON INVESTMENTS AND DIVIDEND INCOME. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AD FILED RETURN OF INCOME BY SHOWING LONG TERM CAPITAL GAIN/LOSS OF RS . NIL ON SALE PROPERTY. THE ASSESSEE WAS 25% OWNER OF A PROPERTY BEING OWNERSHIP FLAT BEARING NO. 502 AT JAI TEMPLE VIEW CO-OP. HSG. SOCIETY, SANTACRUZ. VIDE AGREEMENT FOR SALE DATED 18/06/2004 THE ASSESSEE SOLD THE SAID FLAT FOR A CONSIDERATION OF RS. 38,50 ,000/- AND THE BALANCE 75% OF THE PROPERTY IS OWNED BY THE ASSESSE ES HUSBAND. HOWEVER, FOR THE PURPOSE OF STAMP DUTY THE VALUE HA S BEEN DETERMINED AT RS. 86,06,850/-. THE ASSESSEE HAD REQ UESTED THE ASSESSING OFFICER REFER THE MATTER TO THE VALUATION OFFICER FOR THE PURPOSE OF DETERMINING THE FAIR MARKET VALUE, BUT, THE ASSESSING OFFICER HAD REJECTED THE REQUEST OF THE ASSESSEE ON THE GROUND THAT SINCE THE ASSESSMENT WAS GETTING TIME BARRED THE AS SESSEES REQUEST AT THIS STAGE CANNOT BE ACCEPTED. AGGRIEVED, THE AS SESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(A). THE CIT (A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 3. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IN THE CASE OF THE ASSE SSEES HUSBAND, WHO IS HAVING 75% OWNERSHIP IN THE SAID FLAT, THE L EARNED CIT(A) HAS DIRECTED THE ASSESSING OFFICER TO REFER THE MATTER TO THE VALUATION OFFICER AND, ACCORDINGLY, THE ASSESSING OFFICER HAD REFERRED THE MATTER TO THE VALUATION OFFICER. AFTER THE REFERENCE, THE VALUE WAS ADOPTED BY THE ASSESSING OFFICER AT RS. 55,44,000/- AS PER THE REPORT OF THE VALUATION OFFICER IN THE CASE OF ASSESSEES HUSBAND . IN THIS CONNECTION, THE LEARNED COUNSEL HAS REFERRED PAGE N OS. 3, 12 TO 14 AND 15 OF THE PAPER BOOK, WHERE VALUATION REPORT, C IT(A)S ORDER AND ITA NO.276/M/2010 SONU RAJU PARIYANI 3 ORDER GIVING EFFECT TO THE ORDER OF CIT(A) RESPECTI VELY ARE PLACED IN THE CASE OF ASSESSEES HUSBAND. 4. AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSING THE RELEVANT MATERIAL ON RECORD, WE FIND T HAT ON THE SAME PROPERTY THE ASSESSING OFFICER HAS ADOPTED THE MARK ET VALUE AT RS. 55,44,000/- IN ASSESSEES HUSBAND CASE, WHO IS HAVI NG 75% SHARE IN THE SAID FLAT AND IN CASE OF ASSESSEE, WHO IS HAVIN G 25% SHARE, THE ASSESSING OFFICER HAD ADOPTED THE VALUE OF RS. 86,0 6,850/- AND REFUSED THE REQUEST OF THE ASSESSEE TO REFER THE MA TTER TO THE VALUATION OFFICER. ON CONSIDERATION OF THE FACTS OF THE CASE, WE SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICE R TO ADOPT VALUE OF RS. 55,44,000/-, WHICH IS ADOPTED IN THE CASE OF TH E ASSESSEES HUSBAND, WHO IS HAVING 75% SHARE IN THE FLAT AND RE -COMPUTE THE LONG TERM CAPITAL GAINS ON THE BASIS OF THE VALUE OF RS. 55,44,000/- AS ADOPTED IN THE CASE OF ASSESSEES HUSBAND. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 27 TH MAY, 2011. SD/- SD/- (P.M. JAGTAP) (V. DURG A RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 27 TH MAY, 2011 KV ITA NO.276/M/2010 SONU RAJU PARIYANI 4 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, E BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 23/05/11 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 24/05/11 SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER