YES ASSOCIATES, MUMBAI V. ITO WD 15(1)(1), MUMBAI

ITA 3156/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78717 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 08-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SAHU

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G B ENCH, MUMBAI , , , ! '# $ $ $ $ % & ' '# ) BEFORE SHRI N.K. BILLAIYA, AM AND SHRI AMIT SHUK LA, JM ./ I.T.A. NO.3156/MUM/2012 ( * * * * / ASSESSMENT YEAR :2008-09 M/S. YES ASSOCIATES, SHREE SAI DHAM, R. NO. 209, 2 ND FLOOR, TILAK ROAD, GHATKOPAR (E), MUMBAI-400 077 / VS. THE ITO, WARD 15(1)(1), MUMBAI #+ ! ./ , ./ PAN/GIR NO. : AAAFY 4230E ( +- / APPELLANT ) .. ( ./+- / RESPONDENT ) +- 0 / APPELLANT BY: DR. K. SHIVARAM, SR. ADVOCATE SHRI RAHUL SARDA ./+- 1 0 / RESPONDENT BY: SHRI R.K. SAHU 1 %2! / DATE OF HEARING : 09..04.2014 34* 1 %2! / DATE OF PRONOUNCEMENT :09.04.2014 '& / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A)-26, MUMBAI DT.14.3.2012 PERTAINING TO A.Y. 2008-09. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 34,37,425 OUT OF RS. ITA NO. 3156/M/2012 2 41,21,416/- ADDED BY THE AO BEING THE DIFFERENCE IN THE SALE PRICE SHOWN IN THE SALE AGREEMENT AND THE PRICE SHOWN BY STAMP DUTY AUTHORITIES. 3. THE ASSESSEE IS A BUILDER AND DEVELOPER. THE RE TURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS ELECTRONICALLY FIL ED DECLARING LOSS OF RS. 8,51,380/-. THE RETURN WAS SELECTED FOR SCRUTINY A SSESSMENT AND ACCORDINGLY STATUTORY NOTICES WERE ISSUED AND SERVE D UPON THE ASSESSEE. 4. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PRO CEEDINGS, THE AO OBSERVED THAT THE ASSESSEE IS ENGAGED IN DEVELOPMEN T OF PROJECT AT GHATKOPAR AND FOLLOWS PROJECT COMPLETION METHOD. T HE AO FURTHER OBSERVED THAT THERE IS HUGE DIFFERENCE BETWEEN THE SALE PRICE AS PER AGREEMENT AND AS PER STAMP DUTY VALUATION. COMPARA TIVE CHART IS EXHIBITED BY THE AO AT PARA-4 ON PAGE -2 OF HIS ORD ER. AFTER PERUSING THE CHART, THE AO WAS OF THE FIRM BELIEF THAT THE ASSES SEE HAS SHOWN SALE OF FLAT AT AROUND RS. 3,650 PER SQ. FT WHEN THE AVERAG E RATE OF SALE IN GHATKOPAR FOR RESIDENTIAL FLAT WAS RS. 8,000/- TO 10,000/- PER SQ. FT DEPENDING ON THE LOCATION. THE AO WAS CONVINCED TH AT THE ASSESSEE HAS SUPPRESSED THE SALE PRICE . THE AO WENT ON TO MAKE ADDITION OF RS. 41,21,416/- BEING THE DIFFERENCE BETWEEN THE PRICE AS PER STAMP DUTY AUTHORITY AND THE PRICE AS PER SALE AGREEMENT. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A). THE LD. CIT(A) AT PARA-3 ON PAGE-2 OF HIS ORDER OBSERVED TH AT THE FACTS OF THE CASE UNDER CONSIDERATION ARE SIMILAR TO THE FACTS OF ASS ESSMENT YEAR 2006-07 WHEREIN THE AO HAS MADE SIMILAR ADDITION WHICH WERE CONFIRMED BY THE THEN LD. CIT(A) VIDE APPELLATE ORDER DT. 16.12.2009 . THE LD. CIT(A) VIDE PARA 3.2. ON PAGE-5 OF HIS ORDER EXTRACTED THE FINDINGS OF THE LD. CIT(A) FOR A.Y. 2006-07. AFTER EXAMINING THE SIMIL ARITY OF THE FACTS, THE ITA NO. 3156/M/2012 3 LD. CIT(A) NOTICED THAT THE ADDITIONAL PROFIT OF RS . 6,83,991/- IN RESPECT OF FLAT NO. B-701 HAS ALREADY BEEN CONSIDERED IN A. Y. 2006-07. ACCORDINGLY, THE LD. CIT(A) DIRECTED TO DELETE A SU M OF RS. 683991/- AND CONFIRMED THE BALANCE. 6. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. TH E LD. SENIOR COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNA L IN ASSESSEES OWN CASE FOR A.Y. 2006-07 HAS DECIDED THIS ISSUE IN FAV OUR OF THE ASSESSEE. THE LD. COUNSEL PLACED THE ORDER OF THE TRIBUNAL BE FORE US. 7. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY REL IED UPON THE FINDINGS OF THE AO. 8. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES AND THE RELEVANT MATERIAL PLACED BEFORE US. IT IS NOT IN DISPUTE THAT SIMILAR ADDITIONS WERE MADE IN A.Y. 2006-07 WHICH WERE CONF IRMED BY THE LD. CIT(A) AND FOR THE YEAR UNDER CONSIDERATION, THE LD . CIT(A) HAS SIMPLY FOLLOWED THE FINDINGS OF HIS PREDECESSOR FOR A.Y. 2 006-07. WE FIND THAT THE TRIBUNAL IN A.Y. 2006-07 IN ITA NO. 831/MUM/201 0 HAS CONSIDERED SIMILAR ISSUE WHILE DECIDING GROUND NO. 1TO 3 AT PA RA-12 ON PAGE7 OF ITS ORDER WHEREIN THE TRIBUNAL HELD AS UNDER: IN VIEW OF OUR FINDINGS GIVEN ABOVE, THE ORDER OF THE CIT(A) CONFIRMING ADDITION MADE BY THE AO ON THIS ISSUE ON THE BASIS OF DIFFERENCE BETWEEN SALE PRICE OF THE AGREE MENT AND STAMP VALUATION AUTHORITIES IS HEREBY SET ASIDE AND THE ADDITIONS SO MADE ARE HEREBY ORDERED TO BE DELETED. ITA NO. 3156/M/2012 4 RESPECTFULLY FOLLOWING THE FINDINGS OF THE TRIBUNA L, ON IDENTICAL SET OF FACTS, FINDINGS OF THE LD. CIT(A) ARE SET AS IDE, ADDITION SO MADE ARE HEREBY ORDERED TO BE DELETED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH APRIL, 2014 . '& 1 4* ! 5 6'7 9.4.2014 4 1 8 SD/- SD/- (AMIT SHUKLA ) (N.K. BILLAIYA) '# /JUDICIAL MEMBER ! '# / ACCOUNTANT MEMBER MUMBAI; 6' DATED 09.04.2014 . . ./ RJ , SR. PS '& '& '& '& 1 11 1 .% .% .% .% 9*% 9*% 9*% 9*% / COPY OF THE ORDER FORWARDED TO : 1. +- / THE APPELLANT 2. ./+- / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. ;8 .% , , / DR, ITAT, MUMBAI 6. 8< = / GUARD FILE. '& '& '& '& / BY ORDER, /% .% //TRUE COPY// > >> > / ? ? ? ? (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI