Mangala Dnyaneshwar Pathare, Pune V. Income-tax Officer, Ward - 7(3), Pune

ITA 2956/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4971 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 14-08-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 12-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE
• Assessee Lawyers: HARI KRISHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO. 2956/PUN/2017 / ASSESSMENT YEAR : 2011-12 MRS. MANGALA DNYANESHWAR PATHARE, PUNYA TARA BUNGALOW, KHARADI GAON, CHANDAN NAGAR, NAGAR ROAD, PUNE-411 014. PAN : AYYPP2921R . ...... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 7(3), PUNE / RESPONDENT . / ITA NO. 2957/PUN/2017 / ASSESSMENT YEAR : 2011-12 MR. DNYANESHWAR PUNAJI PATHARE, PUNYA TARA BUNGALOW, KHARADI GAON, CHANDAN NAGAR, NAGAR ROAD, PUNE-411 014. PAN : AATPP9111G .... ... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 7(3), PUNE / RESPONDENT ASSESSEE BY : SHRI HARI KRISHAN REVENUE BY : SHRI VISHWAS MUNDHE / DATE OF HEARING : 14.08.2019 / DATE OF PRONOUNCEMENT : 16.08.2019 2 ITA NOS.2956 & 2957 /PUN/2017 A.Y.2011-12 / ORDER PER R.S. SYAL, VP : THESE TWO APPEALS BY DIFFERENT BUT RELATED ASSESSE ES ARISE OUT OF THE ORDERS PASSED BY THE CIT(A), PUNE- 5, PUNE ON 30.08.2017 IN RELATION TO THE ASSESSMENT YEAR 2011 -12. 2. SINCE COMMON ISSUE IS RAISED IN BOTH THE APPEALS , I AM, THEREFORE, PROCEEDING TO DISPOSE THEM OFF VIDE THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THESE APPEALS ARE TIME-BARRED BY 3 DAYS. THE LD . AR STATED REASONS WHICH LED TO THE LATE FILING OF THE APPEALS. I AM SATISFIED WITH SUCH REASONS. THE DELAY IS ACCOR DINGLY CONDONED AND THE APPEALS ARE ADMITTED FOR HEARING O N MERITS. ITA NO.2957/PUN/2017 A.Y. 2011-12 4. SUCCINCTLY, THE FACTS OF THIS CASE ARE THAT THE ASSESSEE SOLD AGRICULTURAL LAND AT SURVEY NO.69, HISSA NO.4 AT KHARADI, PUNE ON 27.10.2010 ALONG WITH OTHER CO-OW NERS, INCLUDING THE OTHER ASSESSEE IN THIS BATCH OF APPEA LS. THE ASSESSEE DECLARED NET SALE CONSIDERATION AT RS.1,18 ,85,302/- PLUS COST OF FLAT OF RS.13,38,033/- IN THE COMPUTAT ION OF LONG TERM CAPITAL GAIN. THE AO OBSERVED ON PERUSAL OF PA RT III OF 3 ITA NOS.2956 & 2957 /PUN/2017 A.Y.2011-12 THE CONVEYANCE DEED EXECUTED ON 27.10.2010 THAT TH E ASSESSEE AND FAMILY OF YASHWANT PUNAJI PATHARE WERE ENTITLED TO TWO FLATS OF 1600 SQ. FT. THE VALUE OF SUCH FLAT S IN THE CONVEYANCE DEED WAS MUTUALLY AGREED AT RS.2550/- PE R SQUARE FEET. THE AO ADOPTED THE SAME VALUE OF FLAT OF 1600 SQ.FT @ RS.2550/- WHICH WORKED OUT TO RS.40,80,000 /-. THEREAFTER, HE RECOMPUTED THE AMOUNT OF CAPITAL GAI N. THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER I N ADOPTING THE RATE OF RS.2550/- PER SQ. FT, AGAINST WHICH TH E ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE DISPUTE IN THE APPEAL IS ONLY ON THE VALUE OF FLAT TAKEN BY THE AS SESSEE AT RS.13,38,033/- IN THE COMPUTATION OF CAPITAL GAIN, WHICH THE AUTHORITIES BELOW TOOK AT RS.40,80,000/-. THE LD. AR CONTENDED THAT VALUE OF THE FLAT WAS ERRONEOUSLY TA KEN BY THE AO @ RS.2550/- PER SQ. FT. AND ACTUAL VALUE OF THE FLAT WAS @ RS.832/- PER SQ. FT. ON BEING CALLED UPON TO SUBSTA NTIATE THE BASIS FOR ADOPTING VALUE OF FLAT @ RS.832/- PER SQ. FT, THE ASSESSEE SUBMITTED THAT IT WAS ON ESTIMATION BASIS. IN MY CONSIDERED OPINION, THE CONTENTION RAISED ON BEHALF OF THE ASSESSEE IS BEREFT OF MERIT. 4 ITA NOS.2956 & 2957 /PUN/2017 A.Y.2011-12 6. IT IS SEEN THAT THE ASSESSEE ENTERED INTO CONVEY ANCE DEED, WHOSE COPY HAS BEEN PLACED IN THE PAPER BOOK. THE RELEVANT CLAUSE OF THE CONVEYANCE DEED READS AS UND ER: IT IS AGREED BY AND BETWEEN THE VENDORS AND THE PURCHASERS PERTAINING TO ALLOTMENT OF THE SAID TWO RESIDENTIAL FLATS TO NOS. (I) AND (III) OF THE VENDOR EACH AS FOLLOWS : (A) THAT THE AGREED PRICE OF THE SAID RESIDENTIAL FLATS BETWEEN THE VENDORS AND THE PURCHASERS SHALL BE @ OF RS.2550/- PER SQ. FT SALEABLE AREA THEREOF. (B) THAT IN THE EVENT OF THE SALEABLE AREA OF ANY OF THE SUCH FLATS BEING FOUND TO BE LESS THAN 1600 SQ. FT, THE PURCHASERS SHALL MAKE PAYMENT TO THE VENDORS OF AN AMOUNT TO BE ARRIVED AT BY MULTIPLYING SUCH SHORTFALL IN THE SALEABLE AREA BY RS.2550/-. (C) THAT IN THE EVENT THE SALEABLE AREA OF ANY OF THE SAID FLATS BEING FOUND TO BE MORE THAN 1600 SQ. FT. THEN IN SUCH EVENT THE ALLOTTEE VENDORS OF SUCH FLATS SHALL MAKE PAYMENT TO THE PURCHASERS OF AN AMOUNT TO BE ARRIVED @ BY MULTIPLYING SUCH INCREMENTAL AREA BY RS.2550/- . 7. IT IS OBVIOUS FROM THE CONVEYANCE DEED THAT PRI CE OF THE SAID RESIDENTIAL FLATS WAS AGREED BETWEEN THE VENDO RS AND THE PURCHASERS (INCLUDING THE ASSESSEE) AT RS.2550/- PE R SQ.FT. IN OTHER WORDS, THE ASSESSEE RECEIVED SALE CONSIDERATI ON IN TWO PARTS VIZ. RS.1,18,85,302/- IN CASH AND THE REMAINI NG PART IN THE SHAPE OF FLAT WHOSE VALUE WAS MUTUALLY AGREED @ RS.2550/- PER SQ. FT. ONCE THE VALUE OF THE FLAT HA S BEEN 5 ITA NOS.2956 & 2957 /PUN/2017 A.Y.2011-12 AGREED AT THE RATE OF RS.2550 PER SQUARE FEET, THER E CAN BE NO QUESTION OF RESILING FROM THE SAME FOR THE PURPOSE S OF INCOME TAX ASSESSMENT. IT IS OBVIOUS THAT THERE CAN T BE TWO VALUES OF THE SAME FLAT AT THE SAME TIME, VIZ., ONE FOR ACTUAL TRANSACTION AND ANOTHER FOR THE PURPOSE OF SHOWING CAPITAL GAIN. THE RELIANCE OF THE LD. AR ON CERTAIN DECISIO NS IS MISPLACED INASMUCH AS INSTANTLY, THERE IS NO DISPUT E ON ANY OTHER ASPECT OF THE COMPUTATION OF CAPITAL GAIN EXC EPT THE VALUE OF FLATS. THE ASSESSEE OFFERED AND THE REVENU E ACCEPTED THAT THE VALUE OF FLAT WAS TO BE CONSIDERED FOR THE PURPOSES OF INCLUSION IN THE FULL VALUE OF CONSIDERATION. THE DISPUTE IS ONLY ON THE VALUE OF THE FLATS TO BE ADOPTED. AS AD MITTEDLY THE VALUE OF FLAT WAS AGREED BETWEEN THE ASSESSEE AND V ENDOR AT RS.2550 PER SQUARE FEET, I UPHOLD THE ACTION OF THE AUTHORITIES BELOW ON THIS COUNT. THE IMPUGNED ORDER IS THEREFORE, UPHELD. ITA NO.2956/PUN/2017 A.Y.2011-12 8. THE FACTS AND CIRCUMSTANCES OF THIS APPEAL ARE ADMITTEDLY SIMILAR TO THOSE IN ITA NO.2957/PUN/2017 . THE INSTANT ASSESSEE IS ONE OF THE CO-OWNERS OF THE SAM E PROPERTY TRANSFERRED AS THE FIRST ASSESSEE IN THIS BATCH OF APPEALS. SINCE THE DISPUTE IS CONFINED TO THE DETERMINATION OF THE VALUE OF THE SAME FLAT TO BE TAKEN FOR THE PURPOSES OF 6 ITA NOS.2956 & 2957 /PUN/2017 A.Y.2011-12 COMPUTATION OF CAPITAL GAINS, FOLLOWING THE ABOVE V IEW TAKEN IN THE ABOVE CASE OF SH. DNYANESHWAR PUNAJI PATHARE , I UPHOLD THE IMPUGNED ORDER. 9. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED ON 16 TH DAY OF AUGUST, 2019. SD/- R.S. SYAL /VICE-PRESIDENT / PUNE; / DATED : 16 TH AUGUST, 2019. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS), PUNE-5, PUNE. 4. THE PR. CIT, PUNE-4, PUNE. 5. , , - ' , / DR, ITAT, SMC BENCH, PUNE. 6. % / GUARD FILE. / BY ORDER, // TRUE COPY // / PRIVATE SECRETARY , / ITAT, PUNE. 7 ITA NOS.2956 & 2957 /PUN/2017 A.Y.2011-12 * DATE 1 DRAFT DICTATED ON 14 .08 .201 9 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 16 .08 .2019 SR. PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 DATE OF UPLOADING OF ORDER SR. PS/PS 8 FILE SENT TO BENCH CLERK SR. PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER