Mistry Rajshreeben Batukbhai, Kheda V. ITO, Ward-5, Nadiad

ITA 2848/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8587 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 15-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N K GOYAL
• Assessee Lawyers: ADITY SETH
• Keywords: Sale consideration of property below Jantri Value; Fair market value
• Section: 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER& MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO. 2848/AHD/2017 (ASSESSMENT YEAR: 2012-13) MISTRY RAJSHREEBEN BATUKBHAI 13, JAI AMBICA NAGAR SOCIETY NR. VAISHALI CINEMA, JUNA DUMRAL ROAD, NADIAD, DIST: KHEDA VS. ITO WARD-5 NADIAD [ PAN NO. AYN PM3 578 N ] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : MS. ADITY SETH, AR RESPONDENT BY : SHRI N. K. GOYAL, SR. D.R. DATE OF HEARING 20.11.2019 DATE OF PRONOUNCEMENT 20.01.2020 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 12.09.2017 PASSED BY THE COMMISSIONER O F INCOME TAX (APPEALS) 2, VADODARA UNDER SECTION 143(3) OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT) ARISING OUT OF THE ORDER DATED 24.03.2015 PASSED BY THE ITO, WARD-5, NADIAD FOR ASSESSMENT YEAR 2012-13 WHE REBY AND WHEREUNDER THE ADDITION MADE BY THE AO TO THE TUNE OF RS. 21,6 3,000/- UNDER SECTION 50C OF THE ACT HAS BEEN CONFIRMED. 2. THE BRIEF FACTS LEADING TO THE CASE IS THIS THAT THE ASSESSEE HAS TRANSFERRED A PLOTS OF LAND BEARING NOS. 577, 578 A ND 579/2 PAIKI AT FINAL PLOT ITA NO.2848/AHD/2017 MISTRY RAJSHREEBEN BATUKBHAI VS. ITO ASST.YEAR 2012-13 - 2 - NO. 94 AT A SITUATION OF RS. 17,00,000/- ON 05.10.2 011 BY EXECUTING A REGISTER SALE DEED. THE CASE OF THE ASSESSEE IS THIS THAT A SSESSEE AND THE PURCHASER HAD ENTERED INTO A MUTUAL AGREEMENT FOR SALE OF THE PLO T OF LAND ON 21.02.2011. ACCORDINGLY THE PURCHASER HAS PAID THE PART OF THE SALE CONSIDERATION OF RS. 10 LAKHS DURING THE F.Y. 2010-11 BY TWO A/C PAYEE CHEQ UES OF 5 LAKHS EACH; FIRST DATED 21.02.2011 AND THE NEXT DATED 01.03.2011. TH E BALANCE AMOUNT OF RS. 7 LAKHS WAS PAID TO THE ASSESSEE DURING THE F.Y. 2011 -12. WHEN THE MUTUAL AGREEMENT, THOUGH NOT WRITTEN IN BETWEEN THE PARTIE S, WAS MADE ON 21.02.2011. THE STAMP VALUATION OF THE SAID PLOT OF LAND WAS OF RS. 7,01,450/- MEANING THEREBY THE AGREED CONSIDERATION TO THE TUNE OF RS. 17,00,000/- WAS MUCH MORE THAT THE STAMP VALUATION PREVAILING AT THAT MATERIA L POINT OF TIME. HOWEVER, THE LD. AO RELIED UPON THE STAMP DUTY IN RESPECT OF THE SAID PROPERTY PREVAILING AS ON THE DATE OF TRANSFER THAT IS 05.10.2011 AT RS. 3 8,63,000/- AND THE BALANCE AMOUNT OF THE SAID CONSIDERATION BEING RS. 21,63,00 0/- HAS BEEN ADDED TO THE TOTAL INCOME OF THE ASSESSEE, WHICH WAS, IN TURN CO NFIRMED BY THE LD. CIT(A) AND HENCE ASSAILED BEFORE US. 3. IT IS THE FURTHER CASE OF THE ASSESSEE THAT IN TERMS OF PROVISO OF SEC. 50C OF THE ACT THE JANTRI VALUE PREVAILING AT THE DATE OF AGREEMENT I.E. 21.02.2011WHEN THE FIRST CHEQUE WAS DEPOSITED IN FA VOUR OF THE ASSESSEE SHOULD HAVE BEEN CONSIDERED BY THE LD. AO. MORESO, THE AO HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE BY GIVING A FAIR TR EATMENT BY REFERRING THE MATTER TO THE DEPARTMENTAL VALUATION OFFICER AS CON TEMPLATED UNDER SECTION 50C OF THE ACT. THE SAME, SINCE, HAS NOT BEEN EXER CISED BY THE LD. AO THE SAME WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A) BU T WITHOUT ANY RESULT. HENCE, THE LD. ADVOCATE APPEARING FOR THE ASSESSEE PRAYS BEFORE US FOR REMIT THE MATTER TO THE FILE OF THE LD. AO FOR ADJUDICATI ON OF THE ISSUE DENOVO AFTER ITA NO.2848/AHD/2017 MISTRY RAJSHREEBEN BATUKBHAI VS. ITO ASST.YEAR 2012-13 - 3 - REFERRING THE SAME TO THE DEPARTMENTAL VALUATION OF FICER UNDER SECTION 50C(2) OF THE ACT. ON THIS ASPECT SHE ALSO RELIES UPON SE VERAL PRONOUNCEMENTS PASSED BY THE CO-ORDINATE BENCH AS WELL AS THE JUDGMENT PA SSED BY THE HONBLE HIGH COURT AT CALCUTTA IN THE MATTER OF SUNIL KUMAR AGAR WAL VS. CIT (2015) 372 IT 83 (CAL.). 4. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER PASSED BY THE AUTHORITIES BELOW. 5. THE ASSESSEE HAS PLEADED THAT THE JANTRI VALUE U NDER SECTION 50C SHOULD BE CONSIDERED AS ON THE DATE OF AGREEMENT FOR TRANS FERS INSTEAD OF ACTUAL DATE OF REGISTRATION OF SALE DEED. THE SALE DEED HAS BEEN REGISTERED ON 05.10.2011 AND STAMP DUTY HAS BEEN PAID ON THE BASIS OF FAIR MARKE T VALUE OF RS. 38,63,000/-. THE ASSESSEE HAS STATED THAT SALE CONSIDERATION OF RS. 5 LAC WAS RECEIVED BY CHEQUE ON 01.03.2011 AND ANOTHER RS. 5 LAC BY CHEQU E ON 21.02.2011 IN THE BANK ACCOUNT OF HER HUSBAND. HOWEVER, NEITHER BEFO RE THE LD. CIT(A) NOR AT THE TIME OF APPELLANT PROCEEDINGS BEFORE US THE ASS ESSEE HAS PRODUCED ANY AGREEMENT IN SUPPORT OF HER CLAIM THEREFORE IN ABSE NCE OF ANY WRITTEN AGREEMENT AS ASSUMPTION BASIS DATE OF ACTUAL SALE C ANNOT BE DETERMINED. THEREFORE, WE DO NOT FIND ANY INTERFERENCE ON THIS ISSUE WITH THE DECISION OF LD. CIT(A). ACCORDINGLY, GROUND NOS. 1&2 OF APPEAL OF THE ASSESSEE ARE DISMISSED. HOWEVER, ABOUT THE OBJECTION OF THE ASS ESSEE TO THE FAIR MARKET VALUE OF THE PROPERTY BECAUSE OF JUST INCREASED IN THE JANTRI VALUE W.E.F. 18.11.2011, WE CONSIDER THAT WHEN THE ASSESSEE OBJE CTED TO SUCH VALUATION, AS DETERMINED BY THE LD. AO ON THE BASIS OF THE JANTRI RATE PREVAILING AT THE DATE OF SALE, IT BECAME THE DUTY INCUMBENT UPON THE LD. AO TO REFER THE MATTER TO THE DVO(DEPARTMENTAL VALUATION OFFICER) IN TERMS OF THE PROVISION OF SEC. 50C. WITH UTTER SURPRISE WE FIND THAT THE SAME WAS ALSO NOT BEEN CONSIDERED ITA NO.2848/AHD/2017 MISTRY RAJSHREEBEN BATUKBHAI VS. ITO ASST.YEAR 2012-13 - 4 - BY THE LD. CIT(A) SITTING IN APPEAL BY GIVING AN OP PORTUNITY TO THE ASSESSEE TO REFER THE MATTER TO THE DVO(DEPARTMENTAL VALUATION OFFICER) IN ORDER TO AVOID THE MISCARRIAGE OF JUSTICE THEREBY FAILED TO GIVE T HE FAIR TREATMENT BY USING THE ADEQUATE MACHINERY PROVIDED BY LEGISLATURE. ON THI S ASPECT WE GET THE INSPIRATION TO THE RATIO LAID DOWN BY THE HONBLE C ALCUTTA HIGH COURT IN THE MATTER OF SUNIL KUMAR AGARWAL(SUPRA) IS RELIED UPON BY THE LD. AR. WHEN THE SAID HAS BEEN LAID DOWN. WE, THEREFORE, RESPECTFULLY RELYING UPON THE JUDGM ENT PASSED BY THE HONBLE HIGH COURT AT CALCUTTA WE FIND IT FIT AND P ROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION UPON HIM TO REF ER THE VALUATION OF THE PROPERTY TO THE DEPARTMENTAL VALUATION OFFICER AND TO FRAME A FRESH ASSESSMENT IN THE LIGHT THEREOF I.E. THE REPORT OF THE DVO IN ACCORDANCE WITH LAW AND ALSO UPON GIVING AN OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE AND TO PASS A SPEAKING ORDER THEREON. 6. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 20 / 01 /20 20 SD/- SD/- (AMARJIT SINGH) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 20/01/2020 TANMAY, SR. PS TRUE COPY TRUE COPY ITA NO.2848/AHD/2017 MISTRY RAJSHREEBEN BATUKBHAI VS. ITO ASST.YEAR 2012-13 - 5 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)- 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 28.11.2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29 .11.2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 10.12.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .12.2019 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S .12.2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20 .01.2020 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