The ITO, Ward-2(3), Surat V. Shri Yogesh R.Rathod, Surat

ITA 3124/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5987 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 23-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.3124 / AHD/2009 (ASSESSMENT YEAR 2006-07) ITO, WARD 2(3), SURAT VS. SHRI YOGESH R. RATHOD, PROP. ARPAN GENERAL STORES, R-9, BOMBAY MARKET, UMARWADA, SURAT PAN/GIR NO. : AEMPR6617N (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S.K. MEENA, SR. DR RESPONDENT BY: SHRI M. K. PATEL, AR O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) II, SURAT DATED 27.08.2009 FOR THE ASSESSMENT YEAR 2006-07. THE GROUNDS RAISED BY THE REVENUES ARE AS UNDER: I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE ON A CCOUNT OF UNEXPLAINED INVESTMENT U/S 69B OF THE ACT OF RS.14, 93,000/-. II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. III) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) MAY BE SET ASIDE AND THAT OF THE A.O. MAY KINDLY BE RESTORED T O THE ABOVE EXTENT. I.T.A.NO. 3124 /AHD/2009 2 2. THE BRIEF FACTS OF THE CASE ARE THAT IT IS NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS PURCHASED AN AGRICULTURAL LAND WHEREIN HE IS HAVING 50% SHARE WITH THE OTHER PARTN ER, FOR AN AMOUNT OF RS.27.50 LACS. IT IS FURTHER NOTED BY THE A.O. THA T IN THE PURCHASE, THE ASSESSEE HAS PAID EXCESS STAMP DUTY OF RS.1,76,328/ - AND A PENALTY OF RS.250/-. THE A.O. WAS OF THE OPINION THAT SINCE T HE ASSESSEE HAS PAID MORE STAMP DUTY AS PER THE VALUATION OF SUB-REGISTRAR, T HE ASSESSEE MUST HAVE PAID EXTRA VALUE OF THE LAND PURCHASED BY HIM. THE A.O. ASKED THE ASSESSEE TO SHOW CAUSE AS TO WHY 50% OF THE DIFFERENCE PRICE AS SHOWN IN THE DEED AND AS THAT ASSESSED BY THE REGISTRAR, BEING AN AMOUNT OF RS.14,93,000/-, SHOULD NOT BE TAKEN AS ADDITIONAL VALUE OF THE LAND PAID B Y THE ASSESSEE IN THE FORM OF UNACCOUNTED CASH TO THE SELLER, WHICH HAS NOT BE EN RECORDED. VARIOUS SUBMISSIONS WERE MADE BY THE ASSESSEE BEFORE THE A. O. BUT THE A.O. WAS NOT SATISFIED AND HE MADE ADDITION ON THIS ACCOUNT OF R S.14,93,000/-. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEA L BEFORE LD. CIT(A) WHO HAS DELETED THE ADDITION BY FOLLOWING THE TRIBUNAL DECISION RENDERED IN THE CASE OF BHARAT M. PATEL VS ACIT IN I.T.A. NO. 1749/ AHD/2008 DATED 29.08.2008. NOW, THE REVENUE IS IN APPEAL BEFORE U S. 3. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LD. A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT (A). HE ALSO SUBMITTED A COPY OF THE TRIBUNAL DECISION IN THE CASE OF ACIT V S SHRI RAJEEV BHAI P PATEL IN I.T.A. NO. 2658/AHD/2009 AND C.O. NO.18/AH D/2010 DATED 04.05.2011. IT IS SUBMITTED THAT IN THIS CASE, IT IS HELD BY THE TRIBUNAL THAT THE PROVISIONS OF SECTION 50C ARE NOT APPLICABLE IN THE CASE OF PURCHASER OF THE PROPERTY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT I.T.A.NO. 3124 /AHD/2009 3 IN THE PRESENT CASE, THE ADDITION HAS BEEN MADE BY THE A.O. SIMPLY ON THIS BASIS THAT STAMP DUTY VALUATION OF THE PROPERTY PUR CHASED BY THE ASSESSEE. IN THE PROVISIONS OF SECTION 50C, IT IS PROVIDED THAT IN THE CASE OF SALE OF PROPERTY, THE SALE VALUE OF THE PROPERTY HAS TO BE WORKED OUT ON THE BASIS OF THE VALUE OF THE PROPERTY AS PER S TAMP DUTY VALUAT ION. BUT THIS IS A DEEMING PROVISION WHICH IS SPECIFICALLY MEANT FOR THE SALE OF THE PROPERTY AND IT CANNOT BE MADE APPLICABLE TO THE BUYER OF THE PROPE RTY AND NO ADDITION CAN BE MADE ON THIS ACCOUNT WITHOUT BRINGING ON RECORD SOME ADVERSE MATERIAL INDICATING ANY EXTRA PAYMENT MADE BY THE ASSESSEE I N RESPECT OF THE PROPERTY PURCHASED BY HIM. NO SUCH MATERIAL HAS BEEN BROUGH T ON RECORD BY THE A.O. IN THE PRESENT CASE AND HENCE, THE ISSUE IN QUESTIO N IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY VARIOUS TRIBUNAL DECISION S. THE TRIBUNAL DECISION SUBMITTED BEFORE US IS IN THE CASE OF ACIT VS RAJEE V BHAI P PATEL (SUPRA) AND IN THE SAID TRIBUNAL ORDER, VARIOUS OTHER TRIBU NAL DECISIONS ARE ALSO NOTED. HENCE, BY RESPECTFULLY FOLLOWING THESE PRECEDENTS, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2011. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 29 TH JULY, 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE I.T.A.NO. 3124 /AHD/2009 4 1. DATE OF DICTATION 20/7 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/7. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 26/7 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 29/7 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 29/7 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29/7/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..