Jagmal Joshi, Gautam Budh Nagar V. ITO, Ward- 1(5), Noida

ITA 2934/DEL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8791 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: JAGDEEP GAUTAM
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S.SAINI, ACCOUNTANT M EMBER ITA NO.-2934/DEL/2018 (ASSESSMENT YEAR: 2008-09) JAGMAL JOSHI GAUTAM BUDH NAGAR WARD NO. 1, MOHALLA RAWATIAN PAN : AKRPJ4481H VS ITO, WARD-1(5), NOIDA ASSESSEE BY SHRI JAGDEEP GAUTAM, CA REVENUE BY SHRI S.L.ANURAGI, SR. DR ORDER PER N.S.SAINI, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, NOIDA DATED 28.02.2018 FOR ASSESSMENT YEAR 2008-09. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT T HE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE ORDER OF THE ASSESSING OFFICER MAKING ADDITION FOR RS. 11,09,350/- UNDER THE HEAD LONG TERM CAPITAL GAIN FOR SALE OF LAND IGNORING THE REPORT OF REGISTERED VALUATION OFFICER WHO VALUED T HE PROPERTY AT RS. 15,23,200/-IN PLACE OF THE STAMP DUTY VALUE OF RS. 51,46,000/-. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E SOLD IMMOVABLE PROPERTY FOR A CONSIDERATION OF RS. 15,00 ,000. THE ASSESSEE RELIED ON THE VALUATION REPORT OF THE VALU ATION OFFICER, MEERUT CONTENDING THAT THE VALUE OF THE PROPERTY SO LD WAS RS. 15,23,200/-. THE ASSESSING OFFICER DID NOT ACCEPTED THE CONTENTION OF THE ASSESSEE AND ADOPTED STAMP DUTY VALUE OF RS. 51,46,000/- DATE OF HEARING 27.12.2018 DATE OF PRONOUNCEMENT 28.12.2018 2 ITA N O. 2934/DEL/2018 AND CONSIDERING THE SHARE OF THE ASSESSEE IN THE SA ID PROPERTY AT 23.7% ADOPTED THE SALE CONSIDERATION OF RS. 12,19,6 00/- AND AFTER ALLOWING DEDUCTION FOR COST OF ACQUISITION FOR RS. 1,10,250/- DETERMINED THE LONG TERM CAPITAL GAINS IN THE HANDS OF THE ASSESSEE AT RS. 11,09.350/- AND BROUGHT THE SAME TO TAX. 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) WHO DISMISSED THE APPEAL OF THE ASSESSEE. 5. BEFORE ME THE ASSESSEE HAS FILED COPY OF ASSESSM ENT ORDER IN THE CASE OF SHRI ASHOK KUMAR GUPTA PASSED U/S 143(3 ) OF THE ACT DATED 26.03.2006 WHO WAS 50% CO-OWNER OF THE PROPER TY AND CONTENDED THAT IN THE SAID ASSESSMENT THE ASSESSING OFFICER HAS ACCEPTED THE REGISTERED VALUER VALUATION REPORT WHO VALUED THE PROPERTY AT RS. 15,23,200/- AND HAS TAXED 50% OF TH E SAID AMOUNT IN THE HANDS OF THIS ASSESSEE. THEREFORE, IN THE CA SE OF THE ASSESSEE THE ASSESSING OFFICER CANNOT TURN AROUND AND TAKE D IFFERENT STAND BY NOT ACCEPTING THE VALUATION REPORT OF THE REGIST ERED VALUER. 6. THE DEPARTMENTAL REPRESENTATIVE SHRI S.L.ANURAGI , SR. DR WOULD NOT CONTROVERT THE ABOVE CONTENTION OF THE AU THORISED REPRESENTATIVE OF THE ASSESSEE, HOWEVER, HE SUPPORT ED THE ORDER OF THE LOWER AUTHORITIES. 7. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE , I AM OF THE CONSIDERED VIEW THAT THE HONBLE SUPREME COURT IN T HE CASE OF UNION OF INDIA & ORS. VS. KAUMUDINI NARAYAN DALAL A ND ANRS. [2001] 249 ITR 219 (SC) HAS HELD AS UNDER : IN PRADIP RAMANLAL SHETH V. UNION OF INDIA [1993] 204 ITR 866 , THE GUJA-RAT HIGH COURT HAD DECIDED, INTER ALIA, THAT THE APPROPRIATE AUTHORITY HAD NO POWER, AUTHOR ITY OR JURISDICTION, IN ASCERTAINING THE DISCOUNTED VALUE OF THE APPARENT CONSIDERATION, UNDER SECTION 269UD OF THE INCOME- TAX ACT, 1961, TO DEDUCT FROM THE TOTAL AMOUNT OF T HE CONSIDERATION, ANY SUM ON THE SUPPOSITION THAT IF T HE SALE HAD TAKEN PLACE THE SELLER WOULD HAVE BEEN OUT OF POCKE T TO THE 3 ITA N O. 2934/DEL/2018 EXTENT OF 50 PER CENT. OF THE TOTAL REGISTRATION FE ES AND STAMP DUTY, BECAUSE HE HAD AGREED THAT THESE EXPENSES WOU LD BE SHARED EQUALLY BETWEEN THE SELLER AND BUYER. IN A S UBSEQUENT CASE RELATING TO OTHER PARTIES THE GUJA-RAT HIGH CO URT FOLLOWED ITS EARLIER DECISION. THE DEPARTMENT PREFERRED AN A PPEAL TO THE SUPREME COURT FROM THE LATER DECISION OF THE HIGH C OURT. THE DEPARTMENT WAS UNABLE TO EXPLAIN WHAT WAS THE FATE OF THE APPEAL FILED AGAINST THE DECISION IN PRADIP RAMANLA L SHETH V. UNION OF INDIA , IF FILED, OR WHY NO APPEAL WAS FILED AGAINST THAT DECISION. THE SUPREME COURT DISMISSED THIS APPEAL HOLDING THAT IT WAS NOT OPEN TO THE REVENUE TO ACCE PT THE EARLIER JUDGMENT IN THE CASE OF ONE ASSESSEE AND CH ALLENGE ITS CORRECTNESS WITHOUT JUST CAUSE IN THE CASE OF OTHER ASSESSEES. 8. FURTHER THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SHIVSAGAR ESTATE [2002] 257 ITR 59 (SC) HAS HELD AS UNDER :- FOLLOWING ITS DECISION FOR AN EARLIER YEAR (SEE [1 993] 201 ITR 953) THE HIGH COURT HELD FOR CERTAIN SUBSEQUENT YEA RS THAT THE INCOME FROM PROPERTY HELD BY 65 CO-OWNERS HAD T O BE ASSESSED SEPARATELY IN THE HANDS OF THE INDIVIDUAL CO-OWNERS AND NOT IN THE HANDS OF AN ASSOCIATION OF PERSONS. THE DEPARTMENT PREFERRED APPEALS AND SPECIAL LEAVE PETI TIONS TO THE SUPREME COURT. THE SUPREME COURT DISMISSED THE APPEALS AND PETITIONS ON THE GROUND THAT NO APPEAL HAD BEEN TAKEN TO THE SUPREME COURT FOR THE EARLIER YEAR. 9. IN VIEW OF THE ABOVE DECISIONS OF THE HONBLE S UPREME COURT IN OUR CONSIDERED OPINION IT IS NOT OPEN FOR THE DEPAR TMENT TO TAKE TWO DIFFERENT STAND IN CASE OF TWO DIFFERENT ASSESSEES ON EXACTLY SAME FACTS. 10. IN OUR VIEW AFTER ACCEPTING THE SALE VALUE OF PROPERTY AT RS. 15,23,200/- DURING THE YEAR UNDER CONSIDERATION IN THE CASE OF SHRI ASHOK KUMAR GUPTA IT WAS NOT OPEN TO NOT TO ACCEPT THE SAME IN THE HANDS OF THE ASSESSEE. 11. I, THEREFORE, SET ASIDE THE ORDERS OF THE L OWER AUTHORITIES AND DIRECT THE ASSESSING OFFICER TO VERIFY THE FACT WHE THER THE SALE VALUE OF THE PROPERTY WAS ACCEPTED BY THE DEPARTMENT AT RS. 15,23,200/- IN THE HANDS OF SHRI ASHOK KUMAR GUPTA IN THE FINAL ASSESS MENT. IF THE SAME 4 ITA N O. 2934/DEL/2018 HAS BEEN FOUND TO HAVE BEEN ACCEPTED BY THE DEPARTM ENT AND THAT DECISION HAS BECOME FINAL THEN THE SAME VIEW HAS TO BE ADOPTED IN THE INSTANT CASE ALSO. 12. NEEDLESS TO MENTION THAT SUFFICIENT OPPORTUN ITY OF HEARING SHALL BE ALLOWED TO THE ASSESSEE BEFORE PASSING THE ORDER AF RESH BY THE ASSESSING OFFICER IN LIGHT OF THE DISCUSSIONS MADE HEREINABOVE. THUS, THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED F OR STATISTICAL PURPOSES. 13. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH DECEMBER, 2018 AT NEW DELHI. SD/- (N.S.SAINI) ACCOUNTANT MEM BER DATED: 28 .12.2018 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA N O. 2934/DEL/2018 DATE OF DICTATION 27.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER .12.2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 12.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .12.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS .12.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER