The ITO, Sabarkantha, Ward-4, Sabarkantha V. Shri Hafisbhai A. Patel, Sabarkantha

ITA 2809/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1592 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 12-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Sale consideration of property below Jantri Value; Retrospective amendment; Valuation report; Tax effect
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.2809/AHD/2017 (ASSESSMENT YEAR : 2013-14) THE INCOME TAX OFFICER SABARKATHA, WARD-4 HIMATNAGAR 383 001 VS. SHRI HAFISBHAI A. PATEL AT : ILOL GAM TAL.: HIMATNAGAR DIST. SABARKANTHA 383 001 [PAN NO.BGDPP 4935 P] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI LALIT P.JAIN, SR.DR RESPONDENT BY : SHRI SUNIL TALATI, AR DATE OF HEARING : 06/09/2018 DATE OF PRONOUNCEMENT : 06 / 09 /2018 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL HAS BEEN FILED BEFORE US BY THE REVENUE AGAINST THE ORDER DATED 04.09.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, AHMEDABAD [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2013-14. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE REA D AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DIRECTING THE AO TO RECOMPUTED SHORT TERM CAPITAL GAIN BASED ON VALUATION REPORT O F THE DVO. 1.1. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE S AID REPORT OF THE DVO WAS BAD IN LAW AS THE DVO HAS ADOPTED THE AVERAGE VALUE AS GIVEN IN THE THREE REGISTERED DEEDS, AND NO REFERENCE WHATSOEVER WAS M ADE TO THE CIRCLE RATE AS FIXED BY THE DISTRICT AUTHORITIES, THEREBY RENDERIN G SECTION 50C AS REDUNDANT AND OTIOSE. 1.2. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE SA ID REPORT OF THE DVO WAS BAD IN LAW AS THE DVO WHILE PREPARING SUCH VALUATIO N REPORT SHOULD HAVE - 2 - ITA NO.2 809/AHD/2017 ITO VS. SHRI HAFISBHAI A.PATEL ASST.YEAR 2013-14 BEGUN THE EXERCISE WITH THE CIRCLE RATE AND THEREBY ALLOW DISCOUNT/RELIEF BASED ON CRITERION LIKE LOCATION (HOW FAR FROM THE ROAD, LAND LOCKED), STATE OF SUCH LAND ETC., RATHER THAN RELYING ON THE RATES GIVEN I N THE SALE DEEDS, THEREBY NEGATING THE VERY PURPOSE OF BRINGING IN SECTION 50 C ON THE STATUTE. 1.3. IT IS THEREFORE, PRAYED THAT THE SAID REPORT, BEING BAD IN LAW, SHOULD BE SET ASIDE AND THE DVO MAY BE DIRECTED TO FURNISH A FRESH REPO RT. 3. AT THE OUTSET, AFTER GOING THROUGH THE GROUNDS O F APPEAL AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW, A QUERY WAS RAISED B Y THE BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIRCULAR NO.3/2018 DATED 11.7.2018 RESTRICTING THE FILLING O F THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKHS, THE LD.DR DID NOT DISP UTE THE SAME AND SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACCORDANCE W ITH LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 12.12.2017. ON 11.7.2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007- ITJ(PT) PROHIBITING ITS SUBORDINATE AUTHORITIES FRO M FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, TAX EFFECT ON THE TOTAL INCOME ASSESSED MIN US THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FILED, IS LESS THAN RS.20 LAKHS. FU RTHER, THE CASE OF THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRC ULAR. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. - 3 - ITA NO.2 809/AHD/2017 ITO VS. SHRI HAFISBHAI A.PATEL ASST.YEAR 2013-14 HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIFICA TION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF THE R EVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 06/ 09/2018 SD/- SD/- ( PRAMOD KUMAR ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 06/ 09/2018 .., . ../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-2, AHMEDABAD 5. !'# , $ , / DR, ITAT, AHMEDABAD 6. #() *+ / GUARD FILE. / BY ORDER, ! //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 6.9.18 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 6.9.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.6.9.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 6.9.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER