The ITO, Ward-3(2), Surat V. Shri Mansukhbhai Karsanbhai Sheta,HUF, Surat

ITA 3107/AHD/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6417 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 20-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI RAJ KUMAR
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : AH MEDABAD ( BEFORE HONBLE SHRI T.K.SHARMA, J.M. & HONBLE SHRI A.N.PAHUJA, A.M.) I.T.A.NO. 3107/AHD./2009 : ASSESSMENT YEAR 200 6-07 ITO, WARD-3(2), SURAT VS- SHRI MANSUKHBHAI KARSANBHAI SHETA (HUF), SURAT (PAN : AAMHS 6706F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JAI RAJ KUMAR, SR. D.R. RESPONDENT BY: NONE (WRITTEN SUBMISSION) O R D E R PER SHRI T.K.SHARMA, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF LD. CIT(A)-II, SURAT DATED 21.08.2009 DELETING THE ADDITION OF RS.13,98, 875/- MADE BY THE AO UNDER SECTION 69B OF THE I.T. ACT ON ACCOUNT OF UNEXPLAIN ED INVESTMENT FOR THE ASSESSMENT YEAR 2006-2007. 2. ON THE DATE FIXED FOR HEARING, NONE WAS PRESENT FROM THE SIDE OF THE ASSESSEE. HOWEVER, ON THE EARLIER DATE OF HEARING, VIDE LETTE R DATED 31.01.2010, WRITTEN SUBMISSIONS WERE FILED WHEREIN IT IS STATED THAT TH E ISSUE INVOLVED IN THIS APPEAL IS RELATING TO ADDITION MADE UNDER SECTION 69B OF THE I.T. ACT ON ACCOUNT OF ALLEGED UNACCOUNTED INVESTMENT IN PLOT OF LAND. THE ADDITIO N WAS MADE BY THE AO MAKING SECTION 50C OF THE I.T. ACT AS THE BASE, WITHOUT IN DEPENDENT EVIDENCE IN ANY FORM, TO JUSTIFY THAT THE ASSESSEE HAS INCURRED OR PAID EXTR A CONSIDERATION FOR PURCHASING THE PLOT OF LAND. IN THE WRITTEN SUBMISSIONS, IT IS ALS O MENTIONED THAT THE MATTER IS SQUARELY COVERED BY THE DECISION OF ITAT, AHMEDABAD BENCHES IN VARIOUS CASES INCLUDING THE CASE OF BHARATKUMAR N. PATEL VS- ACIT, CIRCLE-3, S URAT IN ITA NO.1749/AHD/2008 DATED 29.08.2008 FOR THE ASSESSMENT YEAR 2005-06. T HE LD. CIT(A), SURAT-II HAS FULLY ALLOWED THE APPEAL OF THE ASSESSEE. THE SUBJECT ASS ESSMENT WAS FRAMED BY THE VERY 2 ITA NO.3107/AHD./2009 SAME AO ON THE SAME GROUND AND CONTENTION AS THAT I N THE CASE OF BHARAT N. PATEL ( SUPRA ). TO SUM UP, IN THE WRITTEN SUBMISSIONS, IT IS ME NTIONED THAT SINCE THE MATTER IS SQUARELY COVERED BY VARIOUS DECISIONS INCLUDING THE DECISION OF ITAT, AHMEDABAD BENCHES IN THE CASE OF BHARAT N. PATEL ( SUPRA ). THE VIEW TAKEN BY THE LD. CIT(A) BE UPHELD. 2.1 IN VIEW OF THE ABOVE, WE PROCEED TO DECIDE THIS APPEAL OF THE REVENUE, ON THE BASIS OF SUBMISSIONS MADE BY THE LD. D.R. AND THE M ATERIALS AVAILABLE ON RECORD. 3. AT THE TIME OF HEARING BEFORE US, SHRI JAI RAJ K UMAR, SR.D.R., APPEARED ON BEHALF OF THE REVENUE AND FAIRLY ADMITTED THAT THE CONTROVERSY INVOLVED IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE ITAT, AH MEDABAD BENCHES IN THE CASE OF BHARAT N. PATEL ( SUPRA ). 4. AFTER HEARING THE LD. D.R., WE HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THE IMPUGNED ORDER, VIDE PARA 6 AND 6.1, THE LD. CIT(A) DELETED THE ADDITION OF RS.13,98,875/- MADE UNDER SECTION 6 9B OF THE I.T. ACT. THE SAID PARAGRAPHS READ AS UNDER: 6. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. THE AR HAS RELIED UPON THE CASE OF BHARAT N PATEL V/S ACIT, CIR-3, FOR THE AY 2005-06 DATED 29-08-2008 IN ITA NO.1749/AHD/2008, WHERE A SIMILAR ADDITION W HICH WAS CONFIRMED BY ME IN APPEAL, HAS BEEN STRUCK DOWN BY THE ITAT. REL EVANT OBSERVATIONS OF THE ITAT ARE REPRODUCED HEREUNDER: 10. AFTER CAREFUL CONSIDERATION OF THE RIVAL SUB MISSIONS, FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF LAW AS WEL L AS DECISION(S) OF HON'BLE SUPREME COURT AND VARIOUS BENCHES RELIED UPON BY TH E PARTIES, WE ARE OF THE OPINION THAT THE CIT(APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION BY DRAWING THE ANALOGICAL PROVISIONS OF SECTION 50C OF THE ACT. THE CIT(APPEALS) CONFIRMED THE ADDITION BY OBSERVING THAT IF THIS PR OPOSITION IS TO BE ACCEPTED, THEN THE DEEMING PROVISIONS OF SECTION 50C OF THE A CT WILL BECOME INOPERABLE. HE, FURTHER, HELD THAT SECTION 50C OF THE ACT IS AP PLICABLE TO THE SELLER AND PROVIDES THAT THE VALUATION MADE BY THE STAMP VALUA TION AUTHORITY IS TO BE DEEMED AS THE CONSIDERATION RECEIVED BY THE SELLER. HAVING SAID SO, THE CIT(APPEALS) FURTHER HELD THAT 'THE CONVERSE WILL A LSO HAVE TO BE ACCEPTED AS 3 ITA NO.3107/AHD./2009 TRUE, I.E., THE VALUATION OF THE STAMP VALUATION AU THORITY WILL HAVE TO BE DEEMED AS THE CONSIDERATION PAID BY THE PURCHASER O F THE PROPERTY AS WELL. 10.1 WE ARE UNABLE TO AGREE WITH THE AFORESAID ANA LOGY DRAWN BY THE CIT(APPEALS) BECAUSE HAD THE LEGISLATURE INTENDED S O, IT COULD HAVE EASILY SPECIFIED SUCH A PROPOSITION IN THE PROVISION ITSEL F. 11. IN VIEW OF THE SETTLED PROPOSITION OF LAW THAT THE APPELLATE AUTHORITY HAS NO RIGHT EITHER TO ADD OR TO DELETE ANY WORD FROM THE PROVISIONS OF LAW UNLESS AND UNTIL THE SAME ARE FOUND TO BE HAVING SOME AMBIGUIT Y, WE ARE UNABLE TO SUSTAIN THE STAND OF THE CIT(APPEALS), THERE BEING NO AMBIG UITY IN THE SECTION 50C OF THE ACT, WE ARE OF THE OPINION THAT THESE PROVISION S ARE NOT APPLICABLE TO THE PURCHASER. ' 6.1 RESPECTFULLY FOLLOWING THE DECISION OF THE ITAT IN THE CASE OF SHRI BHARAT N. PATEL(SUPRA), I DIRECT THE AO TO DELETE THE ADDITIO N OF THE SUM OF RS.13,98,875. 4.1 FROM THE PERUSAL OF THE ABOVE, IT CAN BE SEEN T HAT IN THE IMPUGNED ORDER, THE LD. CIT(A) HAS MERELY FOLLOWED THE DECISION OF ITAT, AH MEDABAD BENCHES IN THE CASE OF BHARAT N. PATEL ( SUPRA ). WE, THEREFORE, INCLINE TO UPHOLD THE ORDER OF TH E LD. CIT(A). RESULTANTLY, THE APPEAL RAISED BY THE REVENUE IS DI SMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.05.2011 SD/- SD/- (A.N.PAHUJA) (T.K.SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25/05/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT 3) CIT(A) CONCERNED 4) CIT CONCERNED 5) D.R., ITAT, AHMEDABAD TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S.