Namita Pandey, Palamau V. DCIT,Circle-3, Ranchi

ITA 278/RAN/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8683 (ITAT-RANCHI)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 20-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHANDAN DAS
• Assessee Lawyers: HARI LAL PATEL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Revised return
• Section: 50C; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : RANCHI [BEFORE HONBLE SHRI S.S. GODARA, JM] I.T.A NO. 318/RAN/201 8 ASSESSMENT YEAR : 2014-1 5 DILIP KUMAR VS- DCIT, CIRCLE-1, RANCHI [PAN: ADLPK 4085 H] (APPELLANT) ( RESPONDENT) FOR THE APPELLANT : SHRI HARI LAL PATEL, ADVOCATE FOR THE RESPONDENT : SHRI CHANDAN DAS, J CIT I.T.A NO. 278/RAN/201 8 ASSESSMENT YEAR : 2014-1 5 NAMITA PANDEY VS- DCIT, CIRCLE-3, RANCH I [PAN: ADBPP 8248 B] (APPELLANT) ( RESPONDENT) FOR THE APPELLANT : NONE FOR THE RESPONDENT : SHRI CHANDAN DAS, J CIT DATE OF HEARING : 11.01.2019 DATE OF PRONOUNCEMENT : 09.04.2019 ORDER 1. THESE TWO APPEALS OF THE DIFFERENT ASSESSEES F OR ASSESSMENT YEAR 2014-15 ARE DIRECTED AGAINST THE CIT(A)-RANCHIS ORDER DATED 09 .07.2018 AND 26.06.2018 RESPECTIVELY PASSED IN CASE NOS. CIT(A), RANCHI/105 55/2016-17 AND CIT(A), RANCHI/ 10392/2016-17 INVOLVING PROCEEDINGS U/S 143 (3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). HEARD BOTH THE PARTIES. CASE FILES PERUSED. DILIP KUMAR & NAMITA PANDEY ITA NOS.318 & 278/RAN/2018 ASSESSMENT YEAR: 2014-15 P PP PA AA AG GG GE EE E | || | 2 22 2 2. THE ASSESSEESS SOLE SUBSTANTIVE GROUND CHALL ENGES CORRECTNESS OF BOTH LOWER AUTHORITIES ACTION ADDING CAPITAL GAINS ARISING FRO M TRANSFER OF DIFFERENT RESIDENTIAL PROPERTIES AMOUNTING TO RS. 27,20,000/- AFTER APPLY ING SECTION 50C OF THE ACT. THE CIT(A)S DETAILED DISCUSSION TO THIS EFFECT READ AS UNDER: 5. THE APPELLANT, WITH REGARD TO GROUNDS 1-3 HAS S TATED THAT THE CALCULATION OF CAPITAL GAINS AT RS. 27,20,000/- WAS UNJUSTIFIED. T HE APPELLANT STATED THAT HE HAD ALSO PURCHASED A FLAT FOR A CONSIDERATION OF RS. 30 ,72,750/-(SEE PAGE 2 OF THE ASSESSMENT ORDER). THE LD. ASSESSING OFFICER ERRED IN NOT ALLOWING DEDUCTION U/S 54 OF THE ACT. 5.1. THE LD. ASSESSING OFFICER HAS STATED THAT THE APPELLANT HAD PURCHASED AND SOLD THE FOLLOWING PROPERTIES DURING THE FY RELEVAN T TO A.Y. 2014-15:- SL. NO. NAME OF THE PURCHASER / SELLER TRANSACTION DATE PURCHASE / SALE CONSIDERATION STAMP DUTY PAID REGISTRATION NO. JURISDICTIONAL REGISTRATION OFFICE 1. DILIP KUMAR ADLPK408 5H (PURCHASE) 24.06.2013 (PURCHASE) RS. 30,72,750/- RS. 1,22,910/- 2956 DIST. REGISTRATION OFFICE, KUTCHERY COMPLEX 2 DILIP KUMAR ADLPK408 5H (SELLER) 22.10.2013 RS. 18,18,080/- RS. 72,723/- 5880 DIST. REGISTRATION OFFICE, KUTCHERY COMPLEX 3 DILIP KUMAR ADLPK408 5H (SELLER) 24.06.2013 RS. 23,60,000/- RS. 94,400/- 2936 DIST. REGISTRATION OFFICE, KUTCHERY COMPLEX 5.2. THE LD. ASSESSING OFFICER NOTED THAT THE APPEL LANT HAD SOLD A PROPERTY (FLAT) SITUATED AT SATYAM SHIVAM SUNDERAM APARTMENT FOR A CONSIDERATION OF RS. 17,50,000/- BY DEED NO. 2936. HOWEVER, THE STAMP DU TY VALUE OF THE SAME WAS RS. 23,60,000/-. THEREFORE, THERE WAS A DIFFERENCE OF R S. 6,10,000/-. SIMILARLY, THE APPELLANT HAD SOLD A PLOT OF LAND AT CONTANTA CO-OP ERATIVE SWABLAMBI SOCIETY FOR A SALE CONSIDERATION OF RS. 2,50,000/-. HOWEVER, TH E STAMP DUTY VALUE OF THE SAME WAS RS. 23,60,000/-. THEREFORE, THERE WAS A DIFFERE NCE OF RS. 21,60,000/-. THE LD. ASSESSING OFFICER, ACCORDINGLY, MADE AN ADDITION OF RS. 27,20,000/-. 5.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE APPEL LANT AND HAVE PERUSED THE ASSESSMENT ORDER. AS REGARDS INVOCATION OF THE PROV ISIONS OF SECTION 50C OF THE ACT IT HAS TO BE SEEN THAT SECTION 50C IS APPLICABL E, IN THE CIRCUMSTANCES DEFINED IN SECTION 50C(1) I.E. WHERE, AS IN THE INSTANT CAS E, THERE IS TRANSFER OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, AT A CONSIDE RATION LOWER THAN THE STAMP VALUE, I.E. THE VALUE OF THE CAPITAL ASSET TRANSFER RED UNDER THE STAMP ACT, SO THAT, FOR THE PURPOSES OF SECTION 48, STAMP VALUE SHALL B E DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ARISING AS A RESULT O F THE SAID TRANSFER. SECTION 48 PROVIDES FOR THE MODE OF COMPUTATION OF INCOME CHAR GEABLE UNDER THE HEAD CAPITAL GAINS (SECTION 45) ON THE TRANSFER OF A C APITAL ASSET. SECTION 50C(1) ONLY SEEKS TO SUBSTITUTE THE FULL VALUE OF THE CONSIDERA TION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER (I.E. OF THE CAPITAL ASSET), WHI CH IS THE STARTING POINT FOR THE COMPUTATION UNDER SECTION 48, WITH THE STAMP VALUE, IN THE CIRCUMSTANCE SPECIFIED UNDER SECTION 50C(1), APPLICABLE IN THE INSTANT CAS E. IN SHORT, IN A CASE OF TRANSFER OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, SECTION 48 IS TO BE READ ALONG WITH SECTION 50C FOR COMPUTING THE CAPITAL GAINS CH ARGEABLE UNDER SECTION 45. DILIP KUMAR & NAMITA PANDEY ITA NOS.318 & 278/RAN/2018 ASSESSMENT YEAR: 2014-15 P PP PA AA AG GG GE EE E | || | 3 33 3 5.4. FURTHER, IT IS AN ADMITTED POSITION THAT THE A PPELLANT DID NOT CLAIM DEDUCTION U/S 54 OF THE ACT IN HIS RETURN OF INCOME. THE HON BLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD. V CIT [2006] 284 ITR 323 (SC) HAS HELD THAT A CLAIM FOR DEDUCTION WHICH HAS NOT BEEN MADE IN THE RETURN OF INCOME CANNOT BE MADE OTHER THAN BY FILING A REVISED RETURN. ACCORDINGLY, THE L D. ASSESSING OFFICER WAS JUSTIFIED IN NOT ALLOWING THE CLAIM OF DEDUCTION U/S 54 OF TH E ACT. GROUNDS OF APPEAL ARE DISMISSED. 3. IT EMERGES FROM A PERUSAL OF THE CIT(A)S FINDIN GS THAT THE LOWER AUTHORITIES HAVE NOT MADE ANY REFERENCE TO DVO U/S 50(C)(2) OF THE ACT. MR. DAS VEHEMENTLY CONTENDS THAT THE ASSESSEE NOWHERE RAISED SUCH A PL EA IN THE LOWER PROCEEDINGS. I FIND NO MERIT IN REVENUES INSTANT ARGUMENT. HONBL E CALCUTTA HIGH COURT DECISION IN SUNIL KR. AGARWAL VS. CIT REPORTED IN [2015] 372 ITR 83 (CAL) WHEREIN IT WAS HELD THAT THE ASSESSING OFFICER HAS TO MAKE THE IMP UGNED REFERENCE, EVEN IF, THERE IS NO SUCH PLEA RAISED AT THE ASSESSEES BEHEST. I THEREFORE RESTORE THE INSTANT FORMER ISSUE BACK TO THE ASSESSING OFFICER FOR FURTHER APP ROPRIATE PROCEEDINGS. HE SHALL ALSO EXAMINE THE ASSESSEES CLAIM SECTION 54 DEDUCT ION AS HONBLE APEX COURTS DECISION IN GOETZ (INDIA) LTD.(SUPRA) MAKES IT CLEA R THAT THE SAME NOWHERE IMPINGES UPON THE APPELLATE AUTHORITIES JURISDICTI ON UNDER THE ACT TO ENTERTAIN A NEW PLEA IN ABSENCE OF REVISED RETURN. 4. SAME ORDER TO FOLLOW IN LATTER ASSESSEES APPEA L I.T.A. NO. 278/RAN/2018 SINCE THE LOWER AUTHORITIES HAVE NOT MADE ANY REFERENCE T O THE DVO U/S 50C(2) WHILST ADDING THE IMPUGNED CAPITAL GAINS. 5. THESE ASSESSEES APPEALS ARE ALLOWED FOR STATIST ICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE COURT ON 09.04.2019 SD/- [ S.S.GODARA ] JUDICIAL MEMBER DATED : 09.04.2019 SB, SR. PS DILIP KUMAR & NAMITA PANDEY ITA NOS.318 & 278/RAN/2018 ASSESSMENT YEAR: 2014-15 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. I) DILIP KUMAR,4B, K.D. CHOWDHARY APARTMENT, SOU TH, OFFICE PARA, DORANDA, RANCHI-834002. II) NAMITA PANDEY, CHURCH ROAD, DALTONGANJ, PALAMU- 822101, JHARKHAND. 2. I) DCIT, CIRCLE-1, RANCHI II) DCIT, CIRCLE-3, RANCHI 3..C.I.T(A).- 4. C.I.T.- RANCHI 5. CIT(DR), RANCHI BENCH. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, RAN CHI BENCH