PAWANKUMAR BAIRAGRA, MUMBAI V. ITO 24(2)(1), MUMBAI

ITA 3176/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54998 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 23-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D EVI SINGH
• Keywords: Sale consideration of property below Jantri Value; Depreciation
• Section: 143(3); 50C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI R.V. EASWAR, PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 3176/MUM/2010 (ASSESSMENT YEAR: 2005-06) SHRI PAWAN KUMAR BAIRAGRA INCOME TAX OFFICER - 24(2 )(1) 2A, MANALI EVERSHINE NAGAR PRATYAKSH KAR BHAVAN, BK C MALAD (W), MUMBAI 400064 VS. BANDRA (E) MUMBAI 400051 PAN - AABPB 2520 M APPELLANT RESPONDENT APPELLANT BY: SHRI J.P. BAIRAGRA RESPONDENT BY: SHRI DEVI SINGH DATE OF HEARING: 10.08.2011 DATE OF PRONOUNCEMENT: 24.08.2011 O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY ASSESSEE IS AGAINST THE ORDER OF THE CIT- XXIV, MUMBAI DATED 10.03.2010 UNDER SECTION 263 OF THE I.T. ACT. ASSESSEE HAS RAISED FOUR GROUNDS ON THE ISSUE OF JURISDICTION TO REVISE THE ORDER UNDER SECTION 263. 2. BRIEFLY STATED, ASSESSEE, AN ESTATE AGENT, FILED RE TURN OF INCOME ON 24.08.2005 DECLARING TOTAL INCOME OFF ` 4,92,512/-. IN THE SCRUTINY ASSESSMENT COMPLETED UNDER SECTION 143(3) DATED 26. 06.2007 TOTAL INCOME WAS ASSESSED AT ` 5,12,830/- BY DISALLOWING 10% OF MOTOR CAR EXPENSES AND DEPRECIATION CLAIMED UNDER THE HEAD BUSINESS INCOM E. THE CIT EXAMINED THE RECORD AND CAME TO THE CONCLUSION THAT ASSESSEE HAD SHOWN UNSECURED LOANS OF ` 1,16,57,571/- AND ` 1,41,816/- IN THE BALANCE SHEET, WHICH INCLUDED LOANS FROM PRIVATE LIMITED COMPANIES IN WH ICH ASSESSEE IS A SHAREHOLDER. THEREFORE, PROVISIONS OF SECTION 2(22) (E) ARE APPLICABLE BUT ITS APPLICABILITY HAS NOT BEEN EXAMINED BY THE A.O. AT THE TIME OF ASSESSMENT. 3. SIMILARLY THE CIT ALSO CONSIDERED THAT ASSESSEE HAS CLAIMED INDEXATION BENEFIT OF LONG TERM CAPITAL GAIN ON SAL E PROCEEDS OF ` 7,25,000/- OF FLAT NO. 202 GAURAV ESTATE (WRONGLY STATED FOR G AURAV SITARE) AND ITA NO. 3176/MUM/2010 SHRI PAWAN KUMAR BAIRAGRA 2 ` 12,11,000/- OF FLAT NO. 402 IN GAURAV DHRUV AND THE SAME WERE ALLOWED BY THE A.O. WITHOUT ANY VERIFICATION AT THE TIME OF AS SESSMENT AND AS ASSESSEE WAS ENGAGED IN THE BUSINESS OF REAL ESTATE AND INDE XATION BENEFIT WAS NOT ALLOWABLE AND PROVISIONS OF SECTION 50C WERE APPLIC ABLE. ASSESSEE WAS ISSUED A SHOW CAUSE NOTICE AND IN THE WRITTEN SUBMI SSIONS DATED 23.03.2010 ASSESSEE SUBMITTED THAT THERE WERE NO UN SECURED LOANS FROM ANY COMPANIES IN WHICH ASSESSEE IS A SHAREHOLDER. A SSESSEE REITERATED FROM THE SCHEDULES OF THE BALANCE SHEET THAT THE LOANS A RE FROM NON-COMPANIES AND THERE IS ONLY COMPANY FROM WHICH HE HAD TAKEN L OAN IN WHICH HE IS NOT A SHAREHOLDER. IT WAS THE CONTENTION THAT PROVISION S OF SECTION 2(22(E) ARE NOT APPLICABLE. WITH REFERENCE TO THE ISSUE OF INDE XATION BENEFIT AND APPLICABILITY OF SECTION 50C, ASSESSEE SUBMITTED TH AT HE WAS AN INVESTOR IN FLATS, SHOPS AND WAS HOLDING IT FOR MORE THAN 3 TO 6 YEARS AND ASSESSEE WAS NEITHER DEALING IN PROPERTIES NOR CARRYING ON THE B USINESS AS BUILDER. THEREFORE, THE LONG TERM INVESTMENTS MADE BY ASSESS EE ARE CORRECTLY ASSESSED UNDER THE HEAD CAPITAL GAINS. IT WAS FUR THER CONTENDED THAT THE ORDER PASSED BY THE A.O. WAS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. THE CIT, HOWEVER, DID NOT AGRE E AND ON THE PRETEXT THAT THE A.O. FAILED TO MAKE ENQUIRIES, WHICH ARE CALLED FOR UNDER THE CIRCUMSTANCES AND RELYING ON THE CASE LAW, HE SET A SIDE THE ORDER WITH A DIRECTION TO THE A.O. TO MAKE IT AFRESH AFTER PROPE R VERIFICATION. ASSESSEE IS AGGRIEVED ON THIS DIRECTION OF THE CIT UNDER SECTIO N 263. 4. REFERRING TO THE SHOW CAUSE NOTICE AND THE WRITTEN SUBMISSION GIVEN TO THE CIT AND ALSO TO THE PAPER BOOK FILED IN THIS REGARD, THE LEARNED COUNSEL SUBMITTED THAT ASSESSEE HAD UNSECURED LOANS FROM INDIVIDUALS AND HUFS EXCEPT A LOAN FROM ONE COMPANY, INDO CASTLE MU LTIMEDIA LTD. ( ` 19,80,300/-) IN WHICH HE WAS NOT A SHAREHOLDER NOR A DIRECTOR NOR IT WAS ASSOCIATE CONCERN OF THE ASSESSEE. IN THESE CIRCUMS TANCES IT WAS SUBMITTED THAT PROVISIONS OF SECTION 2(22)(E) ARE NOT APPLICA BLE. THIS ASPECT WAS EXAMINED BY THE A.O. AND, THEREFORE, THERE IS NO NE ED TO INVOKE PROVISIONS OF SECTION 263. WITH REFERENCE TO THE OTHER ISSUE OF O FFERING INCOME FROM SALE OF APARTMENTS AS LONG TERM CAPITAL GAINS, THE LEARNED COUNSEL SUBMITTED THAT ASSESSEE IS AN ESTATE BROKER DOING THE BUSINESS OF ESTATE AGENT IN THE NAME ITA NO. 3176/MUM/2010 SHRI PAWAN KUMAR BAIRAGRA 3 OF HIS PROPRIETARY CONCERN, M/S. AMAR ESTATE AGENCY AND ASSESSEE IS GETTING BROKERAGE INCOME, WHICH IS BEING DECLARED UNDER THE HEAD INCOME FROM BUSINESS. ASSESSEE IS ALSO MAKING INVESTMENTS IN F LATS AND SHOPS FROM TIME TO TIME WITH VARIOUS BUILDERS AND THESE INVESTMENTS WERE SOLD AT THE OPPORTUNE TIME AFTER 3 TO 6 YEARS. IT WAS HIS SUBMI SSION THAT ASSESSEE IS NEITHER DEALING IN PROPERTIES NOR CARRYING ON THE B USINESS AS BUILDER AND IS MAKING ONLY LONG TERM INVESTMENTS, WHICH ARE REFLEC TED IN THE BALANCE SHEET AS SUCH. THE LEARNED COUNSEL EXPLAINED THE MODUS OP ERANDI AND ALSO THE FACT THAT DURING THE YEAR ASSESSEE HAS ONLY SOLD TH E SURRENDER RIGHTS IN FLAT NOS. 402 AND 102 AND THERE IS NO SEPARATE AGREEMENT AND REGISTRATION WITH SUB-REGISTRAR. ASSESSEE HAS IN FACT HAD MADE INITIA L INVESTMENTS LONG BACK WHICH WAS REFLECTED IN THE BALANCE SHEET AS INVESTM ENT AND DURING THE YEAR THE SURRENDER OF RIGHTS RESULTED IN CAPITAL GAINS A ND THE PROPERTIES WERE EXECUTED BY THE BUILDER TO THE PARTY, HENCE PROVISI ONS OF SECTION 50C ARE NOT APPLICABLE. THE LEARNED COUNSEL RELIED ON THE PRINC IPLES ESTABLISHED IN THE CASE OF CIT VS. MAX INDIA LTD. 295 ITR 282 (SC) AND CIT VS. DESIGN & AUTOMATION ENGINEERS (BOMBAY) P. LTD. 177 TAXMAN 9 (BOM) AND MRS. KHATIZA S. OOMERBHOY VS. ITO 101 TTJ (MUM) 1905 TO SUBMIT THAT THESE ASPECTS HAVE BEEN EXAMINED BY THE A.O. AND THE A.O. HAS APPLIED HIS MIND AND, THEREFORE, THERE IS NO QUESTION OF NON-APPLICA TION OF MIND NOR INCOMPLETE ENQUIRY. THEREFORE THE ORDER PASSED UNDE R SECTION 263 LACKS JURISDICTION. 5. THE LEARNED D.R., HOWEVER, RELIED ON THE ORDER OF T HE CIT UNDER SECTION 263 AND SUBMITTED THAT THERE IS FAILURE ON THE PART OF THE A.O. TO MAKE PROPER ENQUIRY AND, THEREFORE, JURISDICTION UN DER SECTION 263 HAS BEEN CORRECTLY EXERCISED. 6. WE HAVE CONSIDERED THE ISSUE. AS FAR AS THE PRINCIP LES GOVERNING THE JURISDICTION OF CIT UNDER SECTION 263 IS CONCERNED THE EXISTING CASE LAW WAS REVIEWED AND THE FOLLOWING PRINCIPLES WERE CULLED O UT IN THE ORDER OF THE ITAT IN THE CASE OF MRS. KHATIZA S. OOMERBHOY VS. ITO 10 1 TTJ 1905: - 'THE FUNDAMENTAL PRINCIPLES WHICH EMERGE FROM THE A BOVE CASE MAY BE SUMMARISED BELOW.' ITA NO. 3176/MUM/2010 SHRI PAWAN KUMAR BAIRAGRA 4 I. THE CIT MUST RECORD SATISFACTION THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF THE REVENUE. BOTH THE CONDITIONS MUST BE FULFILLED. II. SECTION 263 CANNOT BE INVOKED TO CORRECT EACH AND E VERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT WAS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WI LL BE ATTRACTED. III. AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT AP PLICATION OF LAW WILL SUFFICE THE REQUIREMENT OF ORDER BEING ERRONEO US. IV. IF THE ORDER IS PASSED WITHOUT APPLICATION OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS ORDER. V. EVERY LOSS OF REVENUE CANNOT BE TREATED AS PREJUDIC IAL TO THE INTERESTS OF THE REVENUE AND IF THE ASSESSING OFFIC ER HAS ADOPTED ONE OF THE COURSE PERMISSIBLE UNDER LAW OR WHERE TW O VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VI EW WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS U NSUSTAINABLE UNDER LAW. VI. IF WHILE MAKING THE ASSESSMENT, THE ASSESSING OFFIC ER EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINE THE INCOME, THE CIT, WHILE EXERCISING HIS POWER UNDER SECTION 263 IS NOT PERMITTED TO SUBSTITUTE HIS ESTIMATE OF INCOME IN PLACE OF THE I NCOME ESTIMATED BY THE ASSESSING OFFICER. VII. THE ASSESSING OFFICER EXERCISES QUASI-JUDICIAL POWE R VESTED IN HIS AND IF HE EXERCISES SUCH POWER IN ACCORDANCE WITH L AW AND ARRIVES AT A CONCLUSION, SUCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATI SFIED WITH THE CONCLUSION. VIII. THE CIT, BEFORE EXERCISING HIS JURISDICTION UNDER S ECTION 263 MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION . IX. IF THE ASSESSING OFFICER HAS MADE ENQUIRIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSUES AND T HE ASSESSEE HAS GIVEN DETAILED EXPLANATION BY A LETTER IN WRITI NG AND THE ASSESSING OFFICER ALLOWS THE CLAIM ON BEING SATISFI ED WITH THE EXPLANATION OF THE ASSESSEE, THE DECISION OF THE AS SESSING OFFICER CANNOT BE HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HI S ORDER HE DOES NOT MAKE AN ELABORATE DISCUSSION IN THAT REGAR D.' KEEPING IN VIEW THE ABOVE PRINCIPLES, IF WE EXAMINE ASSESSEES CASE IT IS VERY OBVIOUS THAT ASSESSEE HAS UNSECURED LOANS FROM VARI OUS INDIVIDUALS AND HUFS AS CAN BE SEEN FROM THE BALANCE SHEET PLACED I N THE PAPER BOOK AT PAGE 6. ASSESSEE HAS ONLY ONE LOAN FROM M/S. INDO C ASTLE MULTIMEDIA LTD. IN WHICH HE IS NOT A SHAREHOLDER, AS CAN BE SEEN FR OM THE ASSET SIDE OF THE BALANCE SHEET. ASSESSEE HAS SHARES IN URMI RELATORS , DADLANI DEVELOPMENT ITA NO. 3176/MUM/2010 SHRI PAWAN KUMAR BAIRAGRA 5 P. LTD., BAIRAGRA BUILDERS (P) LTD. AND BAIRAGRA RE LATORS (P) LTD. BUT NOT IN INDO CASTLE MULTIMEDIA LTD. THEREFORE, APPLICATION OF PROVISIONS OF SECTION 2(22)(E) DOES NOT ARISE IN THE FACTS OF THE CASE. T HEREFORE, TO THAT EXTENT THE ORDER OF THE CIT EXERCISING JURISDICTION FOR EXAMIN ING THE ISSUE UNDER THE PROVISIONS OF SECTION 2(22)(E) DOES NOT ARISE. 7. WITH REFERENCE TO THE OTHER ISSUE OF CLAIM ING CAPITAL GAINS ASSESSEE HAS CLAIMED THE LONG TERM CAPITAL LOSS IN THE COMP UTATION AS UNDER: - A) LONG TERM CAPITAL GAINS ON SURRENDER OF RIGHTS A T FLAT NO. 402, GAURAV DHRUV A) INDEXED COST OF PURCHASE FINANCIAL YEAR OF PURCHASE PURCHASE AMOUNT INDEXED COST 2000-2001 11000 13004 2002-2003 939000 1008322 TOTAL 1021326 B) INDEXED COST OF INTEREST CAPITALISED FINANCIAL YEAR INTEREST CAPITALISED INDEXED COST OF INTEREST 2002-2003 61493 66032 2003-2004 93900 97347 2004-2005 61251 61251 TOTAL 224630 C) SALE CONSIDERATION 1211000 (C) D) LONG TERM CAPITAL LOSS. 34956 ({A+B}-C) B) LONG TERM CAPITAL GAINS ON SURRENDER OF RIGHTS A T FLAT NO. 202, GAURAV SITARE A) INDEXED COST OF PURCHASE FINANCIAL YEAR OF PURCHASE PURCHASE AMOUNT INDEXED COST 2000-2001 11000 13004 2002-2003 553000 593825 TOTAL 606829 (A) (B) (A) ITA NO. 3176/MUM/2010 SHRI PAWAN KUMAR BAIRAGRA 6 B) INDEXED COST OF INTEREST CAPITALISED FINANCIAL YEAR INTEREST CAPITALISED INDEXED COST OF INTEREST 2002-2003 29271 31432 2003-2004 55300 57330 2004-2005 10489 10489 TOTAL 99251 C) SALE CONSIDERATION 725000 (C) D) LONG TERM CAPITAL GAIN. 18920 (C-{A+B}) LONG TERM CAPITAL GAINS ON SURRENDER OR RIGHTS AT FLAT NO. 202, GAURAV SITA RE 18920 LESS; LONG TERM CAPITAL LOSS ON SURRENDER OF RIGHTS AT FLAT NO. 402, GAURAV DHRU V 34956 TOTAL LONG TERM CAPITAL LOSS C/F (16036) 7. A.O. MADE ENQUIRIES WITH REFERENCE TO THE ISSUE AND ASSESSEE ON A SPECIFIC QUERY, VIDE LETTER DATED APRIL 6, 2007 SUB MITTED THE FOLLOWING TO THE AO:- 1. THE ASSESSEE IS AN ESTATE BROKER DOING THE BUSI NESS OF AN ESTATE AGENT IN THE NAME OF HIS PROPRIETARY CONCERN M/S. A MAR ESTATE AGENCY. IN THE SAID PROPRIETARY CONCERN, THE ASSESS EE IS GETTING BROKERAGE INCOME WHICH IS DECLARED UNDER THE HEAD I NCOME FROM BUSINESS. 2. THE ASSESSEE IS ALSO MAKING INVESTMENTS IN THE F LATS/SHOPS FROM TIME TO TIME WITH VARIOUS BUILDERS BY BUYING THE SA ME AT THE INITIAL STAGE AND MAKING THE PAYMENT OF THE PURCHAS E CONSIDERATION FROM TIME TO TIME. THE SAID INVESTMEN T IS FINALLY SOLD AT THE OPPORTUNE TIME AFTER 3 TO 6 YEARS. THE ASSESSEE IS NEITHER DEALING IN THE PROPERTIES NOR CARRYING BUSI NESS AS A BUILDER. HE IS ONLY MAKING LONG TERM INVESTMENT WHI CH IS ALSO REFLECTED IN THE PERSONAL BALANCE SHEET OF THE ASSE SSEE AS INVESTMENT IN THESE PROPERTIES. MERELY BECAUSE OVER A PERIOD OF TIME, THE ASSESSEE HAS MADE SUCH INVESTMENT IN A NU MBER OF PROPERTIES DOES NOT MEAN THAT THE ASSESSEE IS DOING THE BUSINESS OF BUYING AND SELLING OF PROPERTIES. 3. ACCORDINGLY, THE ASSESSEE IS CORRECTLY DECLARING INCOME ON THE SALE OF INVESTMENT IN THESE PROPERTIES AS LONG TERM CAPITAL GAIN. THIS INDICATES THAT THE A.O. HAS EXAMINED THE ISSUE OF INVESTMENT IN FLATS AND SHOPS FROM TIME TO TIME AND SALE THEREOF. AS TH E A.O. HAS NOT MADE ANY SPECIFIC DISALLOWANCE OR OBSERVATION ON THIS ISSUE, IT HAS TO BE CONSIDERED (B) ITA NO. 3176/MUM/2010 SHRI PAWAN KUMAR BAIRAGRA 7 THAT HE HAS ACCEPTED ASSESSEES CONTENTIONS THAT TH E INVESTMENTS MADE IN FLATS AND SUBSEQUENT SALE THEREOF RESULTED IN LONG TERM CAPITAL LOSS IN THE YEAR. 8. AS RIGHTLY HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. MAX INDIA LTD. 295 ITR 282 WHERE THERE ARE TWO VIEW S ARE POSSIBLE AND THE A.O. HAS TAKEN ONE VIEW WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE IN TEREST OF REVENUE UNLESS THE VIEW TAKEN BY THE A.O. IS UNSUSTAINABLE IN LAW. IN THIS CASE, AS SEEN FROM THE BALANCE SHEET OF THIS YEAR AND ALSO CONDUC T OF THE ASSESSEE IN EARLIER YEARS, HE IS INVESTING IN FLATS AND SHOPS L IKE A PERSON INVESTING IN SHARE MARKET. THE TRANSACTIONS OF THE BROKERAGE AS ESTATE AGENT ARE KEPT SEPARATELY AND INCOMES ARE OFFERED AS INCOME FROM B USINESS. LIKEWISE THE INVESTMENTS MADE BY THE ASSESSEE IN VARIOUS COMPANI ES AS WELL AS IN THE PROPERTIES ARE SHOWN UNDER THE HEAD INVESTMENTS A ND ASSESSEE WAS HOLDING THEM AS INVESTMENT ONLY. THERE IS NEITHER A CLAIM OF INTEREST ON BORROWED FUNDS NOR THESE ARE TREATED AS PART OF TRA DABLE ASSETS. IN VIEW OF THIS, WE DO NOT SEE ANY REASON FOR TAKING A DIFFERE NT VIEW THAN THE ONE TAKEN BY THE A.O. AT THE TIME OF COMPLETION OF ASSESSMENT . THE CIT ALSO IN THE ORDER UNDER SECTION 263, EXCEPT MAKING OBSERVATIONS THAT INDEXATION BENEFIT WAS NOT ALLOWABLE AND PROVISIONS OF SECTION 50C ARE APPLICABLE, DID NOT EXAMINE THE ISSUE CORRECTLY HOW AND WHY THESE ASPEC TS ARE APPLICABLE TO ASSESSEE. WE ARE OF THE OPINION THAT THE CIT HAS NO T EXERCISED HIS JURISDICTION CORRECTLY AS RECORDS SHOWS THAT ASSESS EE IS IN HABIT OF MAKING INVESTMENTS AS AN INVESTOR ONLY BUT NOT AS A TRADER . IT MAY BE THAT HE IS TAKING ADVANTAGE OF HIS KNOWLEDGE AS ESTATE BROKER BUT IT DOES NOT MEAN THAT THE LONG TERM INVESTMENTS MADE BY THE ASSESSEE SHOULD BE TREATED AS BUSINESS TRANSACTIONS. THEREFORE, WE ARE OF THE OPI NION THAT CIT WAS WRONG IN COMING TO THE CONCLUSION THAT INDEXATION BENEFIT WAS NOT APPLICABLE TO THE ASSESSEE. EVEN WITH REFERENCE TO APPLICABILITY OF S ECTION 50C, IT IS ASSESSEES CONTENTION BEFORE THE A.O. THAT THEY HAVE SOLD ONLY SURRENDERED RIGHTS IN THE FLATS WHICH WERE NOT REGISTERED BY HIM AND SINCE TH ERE IS NO REGISTRATION, PROVISIONS OF SECTION 50C ARE NOT APPLICABLE. FOR A .Y. 2005-06 THE INSERTION OF THE WORDS ARE ASSESSABLE UNDER THE PROVISIONS OF SECTION 50C IS NOT ITA NO. 3176/MUM/2010 SHRI PAWAN KUMAR BAIRAGRA 8 APPLICABLE AS THE AMENDED PROVISION WAS APPLICABLE ONLY W.E.F. 01.10.2009. SINCE ASSESSEE HAS NOT REGISTERED ANY DOCUMENT, THE QUESTION OF INVOKING PROVISIONS OF SECTION 50C DOES NOT ARISE AS THE PRO PERTY HAS NOT BEEN ASSESSED TO ANY VALUE FOR PAYMENT OF STAMP DUTY BY ANY AUTHORITY OF THE STATE GOVERNMENT. SO ON THIS REASON ALSO THE CITS ORDER IS NOT SUSTAINABLE. FOR THESE REASONS, WE ARE OF THE OPINION THAT THERE IS NO NEED FOR EXERCISING JURISDICTION UNDER SECTION 263 ON THE FACTS OF THE CASE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT AND ALLOW THE GROUNDS RA ISED BY ASSESSEE. 9. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH AUGUST 2011. SD/- SD/- (R.V. EASWAR) (B. RAMAKOTAIAH) PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 24 TH AUGUST 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT VIII, MUMBAI CITY 4. THE DR, C BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.