Shri Sanjaybhai Z.Patel, Surat V. The ACIT.,Circle-3, Surat

ITA 3191/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6552 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 27-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAI RAJ KUMAR
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Cost of acquisition; Fair market value; Valuation report; Onus to prove
• Section: 50C; 68; 37

Judgement Text

IN THE INCOME TAX APPELLA TE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD. (BEFORE SHRI T. K. SHARMA,JM & SHRI A.N. PAHUJA,AM ) ITA NO.3191& 3193/AHD/2009 (ASSESSMENT YEAR:-2006-07) 1. SANJAYBHAI Z PATEL, [PAN: ABCPP 9413 D] 2. SHRI ZUNZABHAI P PATEL [PAN: AFFPP 0199 F] 7, GREEN HOUSE, KAILASHNAGAR, SURAT V/S ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2, ROOM NO.110, AAYAKAR BHAVAN, MAJURA GATE, SURAT [APPELLANT] [RESPONDENT] ITA NO.3192/AHD/2009 (ASSESSMENT YEAR:-2006-07) SMT. CHAMPABEN Z PATEL, 7, GREEN HOUSE, KAILASHNAGAR, SURAT V/S INCOME-TAX OFFICER, WARD- 2(4), ROOM NO. 119, AAYAKAR BHAVAN, MAJURA GATE, SURAT PAN: ABCPP 9401 D [APPELLANT] [RESPONDENT] ASSESSEE BY :- NONE [WRITTEN SUBMISSIONS] REVENUE BY:- SHRI JAI RAJ KUMAR, DR ( )/ ORDER A. N. PAHUJA: THESE THREE APPEALS DIRECTED AGAINST THREE SEPARAT E ORDERS DATED 23-9-2009 OF THE LD. CIT(APPEALS)-II, SURAT, RAISE THE FOLLOWING GROUNDS:- ITA NO.3191/AHD/2009 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A)-II, SURAT HAS ERRED IN SUSTAINING THE A DDITION OF RS.1,91,000/- ON THE BASIS OF STAMP DUTY VALUATION U/S. 50C OF TH E ACT. THE LD. CIT (A) SOMEHOW IGNORED ALL THE SUBMISSION AND CONFIRMED TH E ADDITION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE ADDITION STATED ABOVE DESERVES TO BE DELETED. HENCE ,IT IS PRAYED TO YOUR HONOUR TO DELETE THE ADDITION AND DO JUSTICE 2 ITA NOS..3 191 TO3193/AHD/09 3. YOUR APPELLANT RESERVES HIS RIGHT TO ADD, AMEND, ALTER AND/OR WITHDRAW ANY GROUND OF APPEAL AT THE TIME OF HEARING OF THE APPE AL . ITA NO.3192/AHD/2009 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A)-II, SURAT HAS ERRED IN SUSTAINING THE AD DITION OF RS.1,12,201/- ON THE BASIS OF STAMP DUTY VALUATION U/S. 50C OF TH E ACT. THE LD. CIT (A) SOMEHOW IGNORED ALL THE SUBMISSION AND CONFIRMED TH E ADDITION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ADDITION STATED ABOVE DESERVES TO BE DELETED. HENCE ,IT IS PRAYED TO YOUR HONOUR TO DELETE THE ADDITION AND DO JUSTICE 3.. YOUR APPELLANT RESERVES HIS RIGHT TO ADD, AMEND, ALTER AND/OR WITHDRAW ANY GROUND OF APPEAL AT THE TIME OF HEARING OF THE APPEAL . ITA NO.3193/AHD/2009 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A)-II, SURAT HAS ERRED IN SUSTAINING THE A DDITION OF RS.1,91,000/- ON THE BASIS OF STAMP DUTY VALUATION U/S. 50C OF TH E ACT. THE LD. CIT (A) SOMEHOW IGNORED ALL THE SUBMISSION AND CONFIRMED TH E ADDITION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE ADDITION STATED ABOVE DESERVES TO BE DELETED. HENCE ,IT IS PRAYED TO YOUR HONOUR TO DELETE THE ADDITION AND DO JUSTICE 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A)-II, SURAT HAS ERRED IN SUSTAINING THE AD DITION OF RS.54588 ON THE POINT OF UNEXPLAINED CAPITAL ADDITION. THE SAME DES ERVES TO BE DELETED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A)-II, SURAT HAS ERRED IN SUSTAINING THE ADDITI ON OF RS.13797 ON THE BASIS OF LONG TERM CAPITAL LOSS. THE SAME DESERVES TO BE DELETED. 5. YOUR APPELLANT RESERVES HIS RIGHT TO ADD, AMEND, ALTER AND/OR WITHDRAW ANY GROUND OF APPEAL AT THE TIME OF HEARING OF THE APPEAL. 2. SINCE SIMILAR ISSUES WERE INVOLVED, THESE APPE ALS WERE HEARD SIMULTANEOUSLY FOR THE SAKE OF CONVENIENCE AND ARE BEING DISPOSED OF THROUGH THIS COMMON ORDER. 3 ITA NOS..3 191 TO3193/AHD/09 3. ADVERTING FIRST TO GROUND NO.1 IN THESE APPEALS , F ACTS IN BRIEF AS PER THE RELEVANT ORDERS IN THE CASE OF SHRI SANJAYBHAI Z. P ATEL, ARE THAT RETURN DECLARING INCOME OF RS.13,12,973/- FILED ON 28-3-2007, AFTER BEING PROCESSED U/S. 143(1) OF THE INCOME TAX ACT (HEREINAFTER REFERRED AS THE ACT ) WAS SELECTED FOR SCRUTINY WITH THE SERVICE OF NOTICE U/S. 143(2) ON 27-9-2007 .DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER[A.O I N SHORT] NOTICED THAT THE ASSESSEE SOLD HIS LAND AT RUNDH FOR WHICH SALE DE ED WAS REGISTERED BELOW THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY[ SVA]. TO A QUERY BY THE AO AS TO WHY THE PROVISIONS OF SECTION 50C SHOULD NOT BE INVOKED , THE ASSESSEE REPLIED THAT THE VALUATION MADE BY THE STAMP VALUAT ION AUTHORITIES WAS NOT BINDING ON THE SELLER AS THE PROPERTY HAS BEEN PURC HASED BY PURCHASER. HOWEVER, THE A.O. DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE ON THE GROUND THAT THE VALUATION OF THE ASSET HAS BEEN DETERMINED AND CERTIFIED BY GOVT. EXPERTS I.E THE SVA ,FOLLOWING SCIENTIFIC PROCEDUR ES AND THAT THE VALUATION HAD NOT BEEN DISPUTED BY THE SELLER OR BUYER OF THE PRO PERTY. WHILE REFERRING TO A DECISION OF THE HONBLE APEX COURT IN CIT VS. GEORG E HENDERSON & CO. LTD.,66 ITR 622(SC) , THE AO POINTED OUT THAT THE ASSESSEE DID NOT EXERCISE THE OPTION AVAILABLE IN SUB-SECTION(2) OF SECTION 50C OF THE ACT AND ACCORDINGLY, THE A.O. ADOPTED THE FVC OF RS. 20,21,000/-AND BROUGHT TO TAX AN AMOUNT OF RS.1,91,000/- BEING THE DIFFERENCE BETWEEN VALUATIO N MADE BY SVA & THE CONSIDERATION MENTIONED IN THE SALE DEED EXECUTED ON SALE OF LAND AT RUNDH ,IN TERMS OF PROVISION OF SEC. 50C OF THE ACT. 4.. LIKEWISE, IN THE ASSESSMENT OF SMT. CHAMPABEN Z . PATEL, THE A.O. ADOPTED THE FVC OF RS. 6,74,136/- AND BROUGHT TO T AX AN AMOUNT OF RS. 2,21,036/- (6,74,136 4,53,100) BEING THE DIFFEREN CE BETWEEN VALUATION MADE BY SVA & THE CONSIDERATION MENTIONED IN THE SALE DE ED EXECUTED ON SALE OF PROPERTY AT ROOM NO.1 IN BASEMENT AND HALL NO.2 ON THE GROUND FLOOR, DIAMOND TRADER APARTMENT CO-OPERATIVE HOUSING SOCIETY LTD., DALGIYANA MOHALLO, 4 ITA NOS..3 191 TO3193/AHD/09 MAHIDARPURA, SURAT ,IN TERMS OF PROVISION OF SEC. 5 0C OF THE ACT, ON THE GROUND THAT THE ASSESSEE DID NOT EXERCISE THE OPTION AVAIL ABLE IN SUB-SECTION(2) OF SECTION 50C OF THE ACT AND INSTEAD ACCEPTED THE V ALUATION MADE BY SVA. 5. SIMILARLY, IN THE CASE OF ZUNZAABHAI P. PATEL, W HILE REFERRING TO A DECISION OF THE HONBLE APEX COURT IN CIT VS. GEORGE HENDERS ON & CO. LTD.,66 ITR 622(SC) , THE AO POINTED OUT THAT THE ASSESSEE DID NOT EXERCISE THE OPTION AVAILABLE IN SUB-SECTION(2) OF SECTION 50C OF THE ACT AND ACCORDINGLY, THE A.O. ADOPTED THE FVC OF RS. 20,21,000/-AND BROUGHT TO TAX AN AMOUNT OF RS.1,91,000/- BEING THE DIFFERENCE BETWEEN VALUATIO N MADE BY SVA & THE CONSIDERATION MENTIONED IN THE SALE DEED EXECUTED ON SALE OF LAND AT RUNDH ,IN TERMS OF PROVISION OF SEC. 50C OF THE ACT. 6. ON APPEAL, THE LD. CIT (A), UPHELD THE FINDINGS OF THE ASSESSING OFFICER IN THE CASE OF SHRI SANJAYBHAI Z. PATEL IN THE FOLLOWI NG TERMS:- 6. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. FIRSTLY, THE AR HAS CLAIMED THAT THE ASSESSEES SHARE IN THE ADDITION O FRS.1,91,000 MADE U/S. 50C WAS ONLY RS.1,14,600.THIS FACT APPARENTLY WAS N OT BROUGHT BEFORE THE AO AS IS EVIDENT FROM THE DETAILED ASSESSMENT ORDER WHERE THE AO HAS PLACED ON RECORD AND DISCUSSED ALL POSSIBLE ANGLES AND INTERPRETATIONS PERTAINING TO THE APPLICATION OF THE PROVISIONS OF SECTION 50C OF THE I. T. ACT. HOWEVER, THE AO IS DIRECTED TO VERIFY THE CLAI M OF THE AR AND TAKE APPROPRIATE ACTION IN THIS REGARD. 6.1. THE AR HAS MADE AN INTERESTING REFERENCE TO TH E PROVISIONS OF SEC. 269C OF THE I.T. ACT, AND HAS ARGUED THAT SINCE THE DIFFERENCE BETWEEN THE SELLING PRICE ESTIMATED BY THE SVA AND THE DOCUMENT PRICE WAS NOT MORE THAN 15%, NO ADDITION COULD BE MADE BY THE AO. I AM OF THE VIEW THAT THIS ARGUMENT OF THE AR IS NOT REALLY RELEVANT. SECTION 269C DEALS WITH THE ACQUISITION OF AN IMMOVABLE PROPERTY, WHILE SECTION 50C ALLOWS FOR THE VALUE ADOPTED BY THE SVA FOR THE PURPOSE OF STAMP D UTY TO BE ADOPTED AS THE FULL VALUE OF THE CONSIDERATION RECEIVED BY THE SELLER OF AN IMMOVABLE PROPERTY. THEREFORE, THE PROVISIONS OF SEC. 269C CA NNOT BE READ INTO PROVISIONS OF SECTION 50C SO AS TO MAKE THE LATTER SECTION COMPLETELY INOPERABLE AND REDUNDANT. 6.2. NOW COMING TO THE ADDITION UNDER THE PROVISION S OF SEC. 50C, THE VALUATION OF A PROPERTY MADE BY THE SVA FOR THE PUR POSE OF THE PAYMENT OF STAMP DUTY, IS TO BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION 5 ITA NOS..3 191 TO3193/AHD/09 RECEIVED OR ACCRUED AS A RESULT OF THE TRANSFER. TH E VALUATION OF THE SVA IS BASED ON THE JANTRI PRICE OF A PARTICULAR AREA, D ETERMINED AND VALUED BY THE LOCAL AUTHORITY AND THE STATE GOVERNMENT. THE JANTRI PRICE IN TURN IS BASED ON SEVERAL FACTORS WHICH ARE WELL KNOWN. THER EFORE, THERE IS AN ELEMENT OF REALISTIC DETERMINATION OF THE VALUATION AND HENCE, THE SALE CONSIDERATION, WHICH IS ROOTED TO THE GROUND CONDIT IONS IN EACH AND EVERY AREA. ON THE OTHER HAND, IT IS AN INDISPUTABLE FACT THAT UNDERSTATEMENT OF SALE/PURCHASE CONSIDERATION IS COMMON, ESPECIALLY I N SURAT, WHICH IS A PLACE WELL KNOWN FOR UNDERHAND AND UNDISCLOSED TRAN SACTION IN CASH. IT IS FOR THIS REASON THAT ALMOST EVERY LOCAL AUTHORITY A ND THE STATE GOVERNMENT HAVE DETERMINED, ESTABLISHED AND DECLARED JANTRI P RICE ESPECIALLY FOR METROPOLITAN AND URBAN AREAS, SO AS TO PREVENT THE EVASION OF STAMP DUTY. THUS, EVEN THOUGH THE APPLICATION OF THE JAN TRI PRICE AND THE VALUATION OF THE PROPERTY BY THE SVA IS MADE FOR ST AMP DUTY PURPOSES YET, WHEN SUCH VALUATION IS INCORPORATED IN THE I.T . ACT TO CHECK AND PERVERT THE UNDERSTATEMENT OF CAPITAL GAIN, THERE I S AN INHERENT AND INDISPUTABLE PRESUMPTION, SUCH AS IN THE CASE OF T HE ASSESSEE THAT, WHERE THE VALUATION OF THE SVA IS HIGHER THAN THE D OCUMENT PRICE, IT DOES NOT REQUIRE ANY EVIDENCE TO ESTABLISH AND CONFIRM T HE FACT OF UNDERSTATEMENT OF SALE CONSIDERATION. CONSEQUENTLY, A HIGHER VALUATION BY THE SVA LEADS INEVITABLY TO THE CONCLUSION THAT THE RE HAS BEEN AN UNDERSTATEMENT OF CAPITAL GAIN ACCRUING FROM THE TR ANSFER OF SUCH PROPERTY. 6.3. GIVEN SUCH FACTS AND CIRCUMSTANCES OF THE CASE , AS DISCUSSED ABOVE, I HAVE COME TO THE INEVITABLE CONCLUSION THA T THE AO WAS FULLY JUSTIFIED IN RE-COMPUTING THE STCG ON THE TRANSFER AND IN ADDING THE ASSESSEES SHARE TO HIS TOTAL INCOME,. THE ADDITION OF THE SUM OF RS.1,91,000/- IS CONFIRMED. 7. SIMILARLY IN THE CASE OF CHAMPABEN Z. PATEL, THE LD. CIT (A) UPHELD THE FINDINGS OF THE AO, HOLDING AS UNDER:- 5. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. THE AR HAS MADE AN INTERESTING REFERENCE TO THE PROVISIONS OF SEC. 269C OF THE I.T. ACT, AND HAS ARGUED THAT SINCE THE DIFFERENCE BETWEEN THE SE LLING PRICE ESTIMATED BY THE SVA AND THE DOCUMENT PRICE WAS NOT MORE THAN 15%, O ADDITION COULD BE MADE BY THE AO. I AM OF THE VIEW THAT THIS ARGUMENT OF THE AR IS NOT REALLY RELEVANT. SEC. 269C DEALS WITH THE ACQUI SITION OF AN IMMOVABLE PROPERTY, WHILE SEC. 50C ALLOWS FOR THE VALUE ADOPT ED BY THE SVA FOR THE PURPOSE OF STAMP DUTY TO BE ADOPTED AS THE FULL MAR KET VALUE OF THE CONSIDERATION RECEIVED BY THE SELLER OF AN IMMOVABL E PROPERTY. THEREFORE, THE PROVISIONS OF SEC. 269C CANNOT BE READ INTO THE PROVISIONS OF SEC. 50C SO AS TO MAKE THE LATTER SECTION COMPLETELY INOPERA BLE AND REDUNDANT. 6 ITA NOS..3 191 TO3193/AHD/09 5.1. NOW COMING TO THE ADDITION UNDER THE PROVISION S OF SEC. 50C, THE VALUATION OF A PROPERTY MADE BY THE SVA FOR THE PUR POSE OF THE PAYMENT OF STAMP DUTY, IS TO BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUED AS A RESULT OF THE TRANSFER. TH E VALUATION OF THE SVA IS BASED ON THE JANTRI PRICE OF A PARTICULAR AREA, D ETERMINED AND VALUED BY THE LOCAL AUTHORITY AND THE STATE GOVERNMENT. THE JANTRI PRICE IN TURN IS BASED ON SEVERAL FACTORS WHICH ARE WELL KNOWN. THER EFORE, THERE IS AN ELEMENT OF REALISTIC DETERMINATION OF THE VALUATION AND HENCE, THE SALE CONSIDERATION, WHICH IS ROOTED TO THE GROUND CONDIT IONS IN EACH AND EVERY AREA ON THE OTHER HAND, IT IS AN INDISPUTABLE FACT THAT UNDERSTATEMENT OF SALE/PURCHASE CONSIDERATION IS COMMON, ESPECIALLY I N SURAT, WHICH IS A PLACE WELL KNOWN FOR UNDERHAND AND UNDISCLOSED TRAN SACTIONS IN CASH. IT IS FOR THIS REASON THAT ALMOST EVERY LOCAL AUTHORITY A ND THE STATEMENT GOVERNMENTS HAVE DETERMINED, ESTABLISHED AND DECLAR ED JANTRI PRICES ESPECIALLY FOR METROPOLITAN AND URBAN AREAS, SO AS TO PREVENT THE EVASION OF STAMP DUTY. THUS, EVEN THOUGH THE APPLICATION OF THE JANTRI PRICE AND THE VALUATION OF THE PROPERTY BY THE SVA IS MADE FO R STAMP DUTY PURPOSES YET, WHEN SUCH VALUATION IS INCORPORATED IN THE I.T . ACT TO CHECK AND PREVENT THE UNDERSTATEMENT OF CAPITAL GAIN, THERE I S AN INHERENT AND INDISPUTABLE PRESUMPTION, SUCH AS IN THE CASE OF TH E ASSESSEE THAT, WHERE THE VALUATION OF THE SVA IS HIGHER THAN THE DOCUMEN T PRICE, IT DOES NOT REQUIRE ANY EVIDENCE TO ESTABLISH AND CONFIRM THE F ACT OF UNDERSTATEMENT OF SALE CONSIDERATION. CONSEQUENTLY, A HIGHER VALU ATION BY THE SVA LEADS INEVITABLY TO THE CONCLUSION THAT THERE HAS BEEN AN UNDERSTATEMENT OF CAPITAL GAIN ACCRUING FROM THE TRANSFER OF SUCH PRO PERTY. 5.2. GIVEN SUCH FACTS AND CIRCUMSTANCES OF THE CASE , AS DISCUSSED ABOVE, I HAVE COME TO THE INEVITABLE CONCLUSION THA T THE AO HAS FULLY JUSTIFIED IN RE-COMPUTING THE LTCG ON THE TRANSFER OF SUCH PROPERTY AND IN ADDING THE ASSESSEES SHARE TO HIS TOTAL INCOME. TH E ADDITION OF THE SUM OF RS.1,12,201/- IS CONFIRMED. 8. FOR SIMILAR REASONS, IN THE CASE OF SHRI ZUNZABH AI P. PATEL, THE LD. CIT (A) UPHELD THE FINDINGS OF THE AO, HOLDING AS UNDER:- 6. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. FIRSTLY, THE AR HAS CLAIMED THAT THE ASSESSEES SHARE IN THE ADDITION O F RS.1,91,000 MADE U/S. 50C WAS ONLY RS.1,14,600. THIS FACT APPARENTLY WAS NOT BROUGHT BEFORE THE AO AS IS EVIDENT FROM THE DETAILED ASSES SMENT ORDER WHERE THE AO HAS PLACED ON RECORD AND DISCUSSED ALL POSSIBLE ANGLES AND INTERPRETATIONS PERTAINING TO THE APPLICATION OF TH E PROVISIONS OF SECTION 50C OF THE I. T. ACT. HOWEVER, THE AO IS DIRECTED T O VERIFY THE CLAIM OF THE AR AND TAKE APPROPRIATE ACTION IN THIS REGARD. 7 ITA NOS..3 191 TO3193/AHD/09 6.1. THE AR HAS MADE AN INTERESTING REFERENCE TO TH E PROVISIONS OF SEC. 269C OF THE I.T. ACT, AND HAS ARGUED THAT SINCE THE DIFFERENCE BETWEEN THE SELLING PRICE ESTIMATED BY THE SVA AND THE DOCUMENT PRICE WAS NOT MORE THAN 15%, NO ADDITION COULD BE MADE BY THE AO. I AM OF THE VIEW THAT THIS ARGUMENT OF THE AR IS NOT REALLY RELEVANT. SECTION 269C DEALS WITH THE ACQUISITION OF AN IMMOVABLE PROPERTY, WHILE SECTION 50C ALLOWS FOR THE VALUE ADOPTED BY THE SVA FOR THE PURPOSE OF STAMP D UTY TO BE ADOPTED AS THE FULL VALUE OF THE CONSIDERATION RECEIVED BY THE SELLER OF AN IMMOVABLE PROPERTY. THEREFORE, THE PROVISIONS OF SEC. 269C CA NNOT BE READ INTO PROVISIONS OF SECTION 50C SO AS TO MAKE THE LATTER SECTION COMPLETELY INOPERABLE AND REDUNDANT. 6.2. NOW COMING TO THE ADDITION UNDER THE PROVISION S OF SEC. 50C, THE VALUATION OF A PROPERTY MADE BY THE SVA FOR THE PUR POSE OF THE PAYMENT OF STAMP DUTY, IS TO BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUED AS A RESULT OF THE TRANSFER. TH E VALUATION OF THE SVA IS BASED ON THE JANTRI PRICE OF A PARTICULAR AREA, D ETERMINED AND VALUED BY THE LOCAL AUTHORITY AND THE STATE GOVERNMENT. THE JANTRI PRICE IN TURN IS BASED ON SEVERAL FACTORS WHICH ARE WELL KNOWN. THER EFORE, THERE IS AN ELEMENT OF REALISTIC DETERMINATION OF THE VALUATION AND HENCE, THE SALE CONSIDERATION, WHICH IS ROOTED TO THE GROUND CONDIT IONS IN EACH AND EVERY AREA. ON THE OTHER HAND, IT IS AN INDISPUTABLE FACT THAT UNDERSTATEMENT OF SALE/PURCHASE CONSIDERATION IS COMMON, ESPECIALLY I N SURAT, WHICH IS A PLACE WELL KNOWN FOR UNDERHAND AND UNDISCLOSED TRAN SACTION IN CASH. IT IS FOR THIS REASON THAT ALMOST EVERY LOCAL AUTHORITY A ND THE STATE GOVERNMENT HAVE DETERMINED, ESTABLISHED AND DECLARED JANTRI P RICE ESPECIALLY FOR METROPOLITAN AND URBAN AREAS, SO AS TO PREVENT THE EVASION OF STAMP DUTY. THUS, EVEN THOUGH THE APPLICATION OF THE JAN TRI PRICE AND THE VALUATION OF THE PROPERTY BY THE SVA IS MADE FOR ST AMP DUTY PURPOSES YET, WHEN SUCH VALUATION IS INCORPORATED IN THE I.T . ACT TO CHECK AND PERVERT THE UNDERSTATEMENT OF CAPITAL GAIN, THERE I S AN INHERENT AND INDISPUTABLE PRESUMPTION, SUCH AS IN THE CASE OF T HE ASSESSEE THAT, WHERE THE VALUATION OF THE SVA IS HIGHER THAN THE D OCUMENT PRICE, IT DOES NOT REQUIRE ANY EVIDENCE TO ESTABLISH AND CONFIRM T HE FACT OF UNDERSTATEMENT OF SALE CONSIDERATION. CONSEQUENTLY, A HIGHER VALUATION BY THE SVA LEADS INEVITABLY TO THE CONCLUSION THAT THE RE HAS BEEN AN UNDERSTATEMENT OF CAPITAL GAIN ACCRUING FROM THE TR ANSFER OF SUCH PROPERTY. 6.3. GIVEN SUCH FACTS AND CIRCUMSTANCES OF THE CASE , AS DISCUSSED ABOVE, I HAVE COME TO THE INEVITABLE CONCLUSION THA T THE AO WAS FULLY JUSTIFIED IN RE-COMPUTING THE STCG ON THE TRANSFER AND IN ADDING THE ASSESSEES SHARE TO HIS TOTAL INCOME,. THE ADDITION OF THE SUM OF RS.1,91,000/- IS CONFIRMED. 8 ITA NOS..3 191 TO3193/AHD/09 9. THESE THREE ASSESSEES ARE NOW IN APPEAL BEFORE U S AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A). NONE APPEARED ON BEHALF OF THESE THREE ASSESSEES AND INSTEAD WRITTEN SUBMISSIONS HAVE BEEN FILED. WHILE REITERATING THEIR SUBMISSIONS BEFORE THE LD. CIT(A), THE ASSESSEES RELIED UPON D ECISIONS IN RAHUL CONSTRUCTION,38 DTR 19(ITAT,PUNE BENCH) AND K.P.VE GHESE,131 ITR 597(SC) & CONTENDED THAT DIFFERENCE BETWEEN THE FMV DETERMI NED BY THE SVA AND SALE CONSIDERATION SHOWN BY THE ASSESSEES BEING LESS THA N 10%, THE COMPUTATION MADE BY THEM BE ACCEPTED. INTER ALIA, THE ASSESSEE CITED DECISIONS IN RAJKUMARI VIMLA DEVI,279 ITR 360(ALL);DINESH KUMAR MITTAL,193 ITR 770;UP JAL NIGAM VS. KALRA PROPERTIES (P) LTD.,AIR 1996 SC1170 ;R DAMODARAN,247 ITR698(MAD.);R JAWAHAR,217 ITR 59(MAD.);MS. NIRMAL GROVER,223 ITR572(BOMBAY);RAMESH CHAND BANSAL,5SCC62;CHANDANI BHUCHAR,323 ITR,510(P&H);AND CIT VS. SHIVAKAMI CO. (P) LTD.,159 ITR 71(SC).ON THE OTHER HAND, THE LD. D.R. SUPPORTED THE FINDINGS OF THE LD . CIT(A) WHILE MENTIONING THAT NONE OF THE DECISIONS REFERRED TO IN THE WRITTEN SU BMISSIONS ARE APPLICABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. WE HAVE HEARD LD. D.R. AND GONE THROUGH THE FAC TS OF THE CASE AS ALSO THE AFORESAID DECISIONS AND WRITTEN SUBMISSIONS FIL ED BY THESE ASSESSEES. AT THE OUTSET, WE MAY HAVE A LOOK AT THE RELEVANT PROVISI ONS OF SECTION 50C OF THE ACT, WHICH READ AS UNDER:- SEC. 50C (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEI NG LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED [O R ASSESSABLE] BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED O R ASSESSED [OR ASSESSABLE] SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1), WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICE R THAT THE VALUE ADOPTED OR ASSESSED [OR ASSESSABLE] BY THE ST AMP 9 ITA NOS..3 191 TO3193/AHD/09 VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS T HE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRAN SFER. (B) THE VALUE SO ADOPTED OR ASSESSED [OR ASSESSABLE ] BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, THE ASSESSING OFFICER MAY REFER THE VALUATION OF TH E CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE I S MADE, THE PROVISIONS OF SUB-SECTION (2), (3), (4),(5), (6) OF SECTION 16A, CLAUSE (I) OF SUB-SECTION (1) AND SUB-SECTIONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, SECTION 34AA, SECTIO N 35 AND SECTION 37 OF THE WEALTH TAX ACT, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODIFICATIONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFERENCE MADE BY THE ASSESSING OFFIC ER UNDER SUB- SECTION (1) OF SECTION 16A OF THAT ACT. [EXPLANATION 1] FOR THE PURPOSES OF THIS SECTION, VALUATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE OF SECTION 2 OF THE WEALTH TAX ACT, 1957 (27 OF 1957). [EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION, THE EXPRESSION ASSESSABLE MEANS THE PRICE WHICH THE STAMP VALUAT ION AUTHORITY WOULD HAVE, NOTWITHSTANDING ANYTHING TO THE CONTRAR Y CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE, ADOPTED OR ASSESSED, IF IT WERE REFERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUTY.] (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED [OR ASSESSABLE] BY THE STAMP VALUATION AUT HORITY TO IN SUB- SECTION (1), THE VALUE SO ADOPTED OR ASSESSED [OR A SSESSABLE] BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE C ONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER.] 10.1 A MERE GLANCE AT THE AFORESAID PROVISIONS IND ICATES THAT FOR INVOKING THE PROVISIONS OF S. 50C OF THE ACT, FOLLOWING CONDITIO NS ARE REQUIRED TO BE SATISFIED: (I) THE CAPITAL ASSET UNDER TRANSFER SHOULD BE EITH ER LAND OR BUILDING OR BOTH; (II) THERE IS A PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER; 10 ITA NOS.. 3191 TO3193/AHD/09 (III) THERE IS A VALUE ADOPTED OR ASSESSED BY STAMP VALUATION AUTHORITY FOR THE PURPOSES OF STAMP DUTY; AND (IV) THE CONSIDERATION RECEIVED OR ACCRUED AS A RES ULT OF TRANSFER OF THE CAPITAL ASSET IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY; THEN THE VALUE SO ADOPTED OR ASSESSED BY STA MP VALUATION AUTHORITY SHALL BE DEEMED TO BE, FOR THE PURPOSES OF S. 48, THE FULL V ALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. 10.2 IN NUTSHELL, THE NORMAL RULE IN THE SCHE ME OF PROVISIONS OF S. 50C IS THAT WHERE STAMP DUTY VALUATION IS HIGHER THAN THE STATE D CONSIDERATION ON TRANSFER OF LAND OR BUILDING, THE SAME IS TO BE ADOPTED FOR THE PURPOSES OF COMPUTING CAPITAL GAINS. THE EXCEPTION IS THAT IN CASE THE ASSESSEE C AN DEMONSTRATE THAT THE FAIR MARKET VALUATION IS LESS THAN THE STAMP DUTY VALUAT ION, THE FAIR MARKET VALUE IS TO BE ADOPTED. THE SAFEGUARD IS THAT ASSESSEE'S CHALLE NGE TO THE STAMP DUTY VALUATION BEFORE THE TAX AUTHORITIES CANNOT PUT THE ASSESSEE TO ANY DISADVANTAGE. IN EFFECT , WHEN STAMP DUTY VALUATION OF A PROPERTY IS HIGHER THAN STATED VALUE OF SALE CONSIDERATION, THE ONUS TO PROVE THE FAIR MARK ET VALUE SHIFTS TO THE ASSESSEE. AS LONG AS ASSESSEE CAN REASONABLY DISCHARGE THIS O NUS, EVEN UNDER THE SCHEME OF S. 50C, THE CONSIDERATION STATED BY THE A SSESSEE CANNOT BE DISTURBED. IN THE INSTANT CASES, THERE IS NO DISPUTE ABOUT THE FACT THAT THESE THREE ASSESSEES ACCEPTED THE VALUATION DETERMINED BY THE SVA FOR T HE PURPOSE OF THE PAYMENT OF THE STAMP DUTY FOR REGISTRATION OF THE DEED OF CONV EYANCE. THESE ASSESSEES WERE PROVIDED WITH THE VALUABLE OPPORTUNITY UNDER S UB-SEC. (2)) OF S. 50C OF THE ACT IN ADDITION TO THE OPPORTUNITY GIVEN UNDER THE STAMP ACT. EVEN THAT OPPORTUNITY HAS NOT BEEN AVAILED BY THESE ASSESSEES . AS ALREADY MENTIONED, ONUS TO ESTABLISH THE FAIR MARKET VALUE UNDER THE AFORESAID PROVISIONS OF SEC. 50C OF THE ACT IS ON THE ASSESSEE . THERE IS NOTHIN G TO SUGGEST THAT THESE ASSESSEES DISCHARGED THIS ONUS IN THE INSTANT CASES NOR THE VALUE ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) HAS BEEN DISPUTED IN ANY APPEAL OR REVISION AND NO REFERENCE HAS BEEN MADE B EFORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT. IN THESE CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF THE LD.CIT(A). WE FIND THAT A SIMIL AR VIEW HAS BEEN TAKEN BY THE 11 ITA NOS.. 3191 TO3193/AHD/09 HONBLE MADRAS HIGH COURT IN AMBATTUR CLOTHING COMP ANY LIMITED. VS ASSISTANT COMMISSIONER OF INCOME-TAX,221 CTR 1969(MAD). 10.3 IN THE CASE OF SHARAD DINESH PHOTOGRAPHE R . VS. INCOME-TAX OFFICER,[2011] 43 SOT 452 (MUM. ), THE ITAT FOUND T HAT THE ASSESSEE REFLECTED CAPITAL GAIN ON THE SALE OF HOUSE PROPERTY, WHICH W AS CLAIMED TO HAVE BEEN RECEIVED AS A GIFT FROM HER HUSBAND IN THE YEAR 199 5-96. THE FAIR MARKET VALUE OF THE PROPERTY AS ON 1-4-1981 AS PER PROVISIONS OF SE CTION 55(2)( B ) WAS ADOPTED WHICH WAS TAKEN AT 10.25 LAKHS AS PER THE VALUATION REPORT OF THE REGISTERED VALUER. THE ASSESSEE HAD SHOWN THE SALE CONSIDERATI ON AT RS. 65 LAKHS BUT THE SVA DETERMINED THE VALUE AT RS. 1,03,32,000/- FOR T HE PURPOSE OF REGISTRATION. THE ASSESSING OFFICER INVOKED THE PROVISIONS OF SEC TION 50C AND ADOPTED THE SALE CONSIDERATION AT RS. 1,03,32,000 IN PLACE OF R S. 65 LAKHS DECLARED BY THE ASSESSEE AND DETERMINED THE LONG-TERM CAPITAL GAIN AT RS. 55,86,250, AFTER GIVING THE BENEFIT OF THE INDEXATION COST OF THE AC QUISITION. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER, INV OKING THE PROVISIONS OF SECTION 50COF THE ACT, BEFORE THE COMMISSIONER (APPEALS) BU T WITHOUT SUCCESS. BEFORE THE ITAT, THE ASSESSEE VEHEMENTLY ARGUED THAT SECTI ON 50C OF THE ACT IS IDENTICAL WITH THE EARLIER OMITTED SECTION 52(2), T HOUGH THE PHRASEOLOGY USED BY THE LEGISLATURE IS DIFFERENT. HE RELIED ON THE DECI SION OF THE HONBLE SUPREME COURT IN THE CASE OF K. P. VARGHESE V. ITO [1981] 131 ITR 597/7 TAXMAN 13 AND SUBMITTED THAT THERE WAS NO DIFFERENCE BETWEEN SECT ION 52(2) AND SECTION 50C SO FAR AS THE OBJECTS FOR INTRODUCTION OF SECTION 50C WAS CONCERNED. IT WAS FURTHER ARGUED THAT THE ASSESSING OFFICER, SHOULD HAVE OFFE RED THE MATTER TO THE VALUATION OFFICER. IN THESE CIRCUMSTANCES, THE ITAT CONCLUDED THAT THE LEGISLATIVE SCHEME OF SECTION 52(2) , OMITTED WITH EFFECT FROM 1-4-1988 F ROM THE ACT AND SECTION 50C, IS TOTALLY DIFFERENT. THE GOLDEN RULE OF INTERPRETATIO N OF STATUTE IS TO GO WITH THE PLAIN MEANING OF THE WORDS USED BY THE LEGISLATURE. THE S UPREME COURT HAS ALREADY EXPLAINED THE OBJECT OF THE OMITTED SECTION 52(2) A ND, THE PRINCIPLE LAID DOWN BY THE SUPREME COURT IN THE CASE OF K. P. VARGHESE (SU PRA) CANNOT BE APPLIED FOR 12 ITA NOS.. 3191 TO3193/AHD/09 INTERPRETING THE SECTION 50C, PUTTING THE BURDEN ON THE REVENUE TO ESTABLISH THAT THE ASSESSEE HAS UNDERSTATED THE CONSIDERATION. IT IS WELL-SETTLED JUDICIAL PRINCIPLE THAT COURTS ONLY DECLARE AND INTERPRET STATUTE AND DO NOT LEGISLATE. ACCORDINGLY, THE ITAT HELD THAT THE ASSESSING OFFICER RIGHTLY I NVOKED THE PROVISIONS OF SECTION 50C OF THE ACT WITH DUE AUTHORITY OF LAW ,THEREBEI NG NOTHING TO SHOW THAT THE ASSESSEE CLAIMED BEFORE THE ASSESSING OFFICER THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY WAS MORE THAN THE FMV OF THE SAID PROPERTY AND THUS, THERE WAS NO REASON TO MAKE REFERENCE TO THE VALUAT ION OFFICER. IN THE INSTANT CASE ALSO, NOT EVEN AN IOTA OF EVIDENCE FINDS MENTI ON IN THE IMPUGNED ORDERS NOR EVEN A WHISPER HAS BEEN MADE IN THE WRITTEN SUBMISS IONS FILED BEFORE US THAT THE ASSESSEE SOUGHT TO INVOKE PROVISIONS OF SEC. 50C(2) OF THE ACT OR EVEN CLAIMED BEFORE THE AO THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER NOR EVEN SUBMITTED THE SAID FMV OF THE PROPERTY. IN VIEW OF THE FOREGOING, WE DO NOT FIND ANY INFIRMITY IN THE F INDINGS OF THE LD. CIT(A) . 10.4 AS REGARDS RELIANCE OF DECISION IN RAHUL CO NSTRUCTION(SUPRA), THE ASSESSEES HAVE NOT DEMONSTRATED AS TO HOW THE S AID DECISION IS APPLICABLE TO THE FACTS AND CIRCUMSTANCES IN THE IN STANT CASES. IN THE CITED DECISION, REFERENCE WAS MADE TO DVO AN D SINCE THE DIFFERENCE BETWEEN SALE CONSIDERATION OF THE PROPER TY SHOWN BY THE ASSESSEE AND THE FMV DETERMINED BY THE DVO WAS LES S THAN 10% , THE ITAT CONCLUDED THAT THE AO WAS NOT JUSTIFIED IN SUBSTITUTING THE VALUE DETERMINED BY DVO. BUT IN THE PRESENT CASE, A S ALREADY STATED, THESE ASSESSEES ACCEPTED THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) AND DID NOT EVEN CARE TO SUBMIT THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER . IN THESE CIRCUMSTANCES, RELIANCE PLACED BY THESE ASSESSEES IN THEIR WRITTEN SUBMISSIONS ON THE SAID DECISION IS TOTALLY MISPLACED. 13 ITA NOS.. 3191 TO3193/AHD/09 10.5 REGARDING RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF K. P. VARGHESE V. ITO [1981] 131 ITR 597, A CO-ORDINATE BENCH HAVE ALREADY HELD IN SHARAD DINESH PHOTOGRAPHER(SUP RA) THAT THE PRINCIPLE LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF K. P. VARGHESE (SUPRA) CANNOT BE APPLIED FOR INTERPRETING THE SECTION 50C, PUTTING THE BURDEN ON THE REVENUE TO ESTABLISH THAT THE ASSESSEE HAS UNDERSTA TED THE CONSIDERATION. THE ONUS UNDER THE DEEMING PROVISIONS OF SEC. 50C OF T HE ACT , IS ON THE ASSESSEE TO ESTABLISH THE FMV OF THE PROPERTY. AS LONG AS ASSESSEE CAN REASONABLY DISCHARGE THIS ONUS , EVEN UNDER THE SCHEME OF S. 50C, THE CONSIDERATIO N STATED BY THE ASSESSEE CANNOT BE DISTURBED. IN THIS SITUAT ION, ESPECIALLY WHEN THE ASSESSEE FAILED TO DISCHARGE ONUS LAID DOWN UNDER S EC. 50C OF THE ACT , RELIANCE ON THE DECISION IN THE CASE OF K. P. VARGHESE (SUPR A) IS ALSO MISPLACED. 10.6 THE DECISIONS IN THE CASE OF RAJKUMARI VIMLA DEVI(SUPRA) ;DINESH KUMAR MITTAL(SUPRA);UP JAL NIGAM(SUPRA); R DAMODARA N(SUPRA); R JAWAHAR (SUPRA); MS. NIRMAL GROVER(SUPRA); RAMESH CHAND BAN SAL(SUPRA); AND SHIVAKAMI CO. (P) LTD., WERE NOT RENDERED IN THE C ONTEXT OF PROVISIONS OF SEC. 50C OF THE ACT. IN CHANDANI BHUCHAR(SUPRA), HONBLE HIGH COURT HELD THAT IN THE ABSENCE OF ANY LEGALLY ENFORCEABLE ACCEPTABLE EVIDE NCE, THE VALUATION DONE FOR THE PURPOSE OF SECTION 50C WOULD NOT REPRESENT THE ACTUAL CONSIDERATION PASSED ON TO THE SELLER. WE FIND THAT NONE OF THESE DECIS IONS WAS RENDERED IN THE CONTEXT OF ISSUE BEFORE US REGARDING APPLICABILITY OF PROVISIONS OF SEC. 50C OF THE ACT . IN THIS CONTEXT, WE MAY REFER TO THE FOLLOWI NG OBSERVATIONS OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SU N ENGINEERING WORKS PVT. LTD., 198 ITR 257: IT IS NEITHER DESIRABLE NOR PERMISSIBLE TO PICK OU T A WORD OR A SENTENCE FROM THE JUDGMENT OF THIS COURT, DIVORCED FROM THE CONTEXT O F THE QUESTION UNDER CONSIDERATION AND TREAT IT TO BE THE COMPLETE ' LAW ' DECLARED BY THIS COURT. THE JUDGMENT MUST BE READ AS A WHOLE AND THE OBSERVATIO NS FROM THE JUDGMENT HAVE TO BE CONSIDERED IN THE LIGHT OF THE QUESTIONS WHIC H WERE BEFORE THIS COURT. A DECISION OF THIS COURT TAKES ITS COLOUR FROM THE QU ESTIONS INVOLVED IN THE CASE IN WHICH IT IS RENDERED AND, WHILE APPLYING THE DECISI ON TO A LATER CASE, THE COURTS MUST CAREFULLY TRY TO ASCERTAIN THE TRUE PRINCIPLE LAID DOWN BY THE DECISION OF THIS COURT AND NOT TO PICK OUT WORDS OR SENTENCES FROM T HE JUDGMENT, DIVORCED FROM 14 ITA NOS.. 3191 TO3193/AHD/09 THE CONTEXT OF THE QUESTIONS UNDER CONSIDERATION BY THIS COURT, TO SUPPORT THEIR REASONINGS. IN MADHAV RAO JIVAJI RAO SCINDIA BAHADU R V. UNION OF INDIA [1971] 3 SCR 9; AIR 1971 SC 530, THIS COURT CAUTIONED (AT PA GE 578 OF AIR 1971 SC). 10.61 MOREOVER ,HONBLE SUPREME COURT CAUTIONED IN THEIR DECISION DATED 6.3.2009 IN THE CASE OF STATE OF AP VS. M.RA DHA KRISHNA MURTHY,[CRIMINAL APPEAL NO. 386 OF 2002] IN THE FOLLOWING WORDS: 6. COURTS SHOULD NOT PLACE RELIANCE ON DECI SIONS WITHOUT DISCUSSING AS TO HOW THE FACTUAL SITUATION FITS IN WITH THE FACT SIT UATION OF THE DECISION ON WHICH RELIANCE IS PLACED. OBSERVATIONS OF COURTS ARE NEIT HER TO BE READ AS EUCLID'S THEOREMS NOR AS PROVISIONS OF THE STATUTE AND THAT TOO TAKEN OUT OF THEIR CONTEXT. THESE OBSERVATIONS MUST BE READ IN THE CONTEXT IN W HICH THEY APPEAR TO HAVE BEEN STATED. JUDGMENTS OF COURTS ARE NOT TO BE CONS TRUED AS STATUTES. TO INTERPRET WORDS, PHRASES AND PROVISIONS OF A STATUT E, IT MAY BECOME NECESSARY FOR JUDGES TO EMBARK INTO LENGTHY DISCUSSIONS BUT T HE DISCUSSION IS MEANT TO EXPLAIN AND NOT TO DEFINE. JUDGES INTERPRET STATUTE S, THEY DO NOT INTERPRET JUDGMENTS. THEY INTERPRET WORDS OF STATUTES; THEIR WORDS ARE NOT TO BE INTERPRETED AS STATUTES . 8. CIRCUMSTANTIAL FLEXIBILITY, ONE ADDITIONAL OR DIFFERENT FACT MAY MAKE A WORLD OF DIFFERENCE BETWEEN CONCLUSIONS IN TWO CASES. DISPOS AL OF CASES BY BLINDLY PLACING RELIANCE ON A DECISION IS NOT PROPER. 9. THE FOLLOWING WORDS OF LORD DENNING IN THE MA TTER OF APPLYING PRECEDENTS HAVE BECOME LOCUS CLASSICUS: 'EACH CASE DEPENDS ON ITS OWN FACTS AND A CLOSE SIMILARITY BETWEEN ONE CASE AND ANOTHER IS NOT ENOUGH BECAUSE EVEN A SING LE SIGNIFICANT DETAIL MAY ALTER THE ENTIRE ASPECT, IN DECIDING SUCH CASE S, ONE SHOULD AVOID THE TEMPTATION TO DECIDE CASES (AS SAID BY CORDOZO) BY MATCHING THE COLOUR OF ONE CASE AGAINST THE COLOUR OF ANOTHER. TO DECIDE THER EFORE, ON WHICH SIDE OF THE LINE A CASE FALLS, THE BROAD RESEMBLANCE TO ANOTHER CASE IS NOT AT ALL DECISIVE.' *** *** *** 'PRECEDENT SHOULD BE FOLLOWED ONLY SO FAR AS IT MARKS THE PATH OF JUSTICE, BUT YOU MUST CUT THE DEAD WOOD AND TRIM OFF THE SIDE B RANCHES ELSE YOU WILL FIND YOURSELF LOST IN THICKETS AND BRANCHES. MY PLEA I S TO KEEP THE PATH TO JUSTICE CLEAR OF OBSTRUCTIONS WHICH COULD IMPEDE IT.' 10.62 IN THE LIGHT OF AFORESAID OBSERVATIONS OF THE HONB LE APEX COURT, WE ARE OF THE OPINION THAT RELIANCE BY THESE ASSESSEES ON TH E AFORESAID DECISIONS IN THE CASE OF RAJKUMARI VIMLA DEVI(SUPRA);DINESH KUMAR MI TTAL(SUPRA);UP JAL NIGAM(SUPRA); R DAMODARAN(SUPRA); R JAWAHAR (SUPRA) ; MS. NIRMAL GROVER (SUPRA); RAMESH CHAND BANSAL(SUPRA) ;SHIVAKAMI CO. (P) LTD . AND CHANDANI 15 ITA NOS.. 3191 TO3193/AHD/09 BHUCHAR(SUPRA), RENDERED ON ALTOGETHER DIFFERENT S ET OF FACTS AND ALSO IN DIFFERENT CONTEXTS, IS TOTALLY MISPLACED. 10.7 IN VIEW OF THE FOREGOING, WE HAVE NO HESIT ATION IN REJECTING GROUND NO.1 IN THESE THREE APPEALS. 11. NOW COMING TO GROUND NO.2 IN THE APPEAL IN T HE CASE OF ZUNZABHAI P PATEL, THE AO NOTICED ON PERUSAL OF THE CAPITAL ACCOUNT F ILED WITH THE RETURN OF INCOME THAT THE ASSESSEE HAD SHOWN A SUM OF RS.54588/- AS ON 31-3-06. IN RESPONSE TO A SHOW CAUSE NOTICE ISSUED ON 11-1-08 , THE ASSESSE E DID NOT REPLY . ACCORDINGLY, THE AO ADDED THE AFORESAID AMOUNT OF RS.54,588/- TO THE INCOME. 12. ON APPEAL, THE LEARNED CIT(A) UPHELD THE A DDITION IN THE FOLLOWING TERMS:- 7.1 THE AO MADE THE ADDITION SINCE THE ASSESSEE FA ILED TO RESPOND TO THE SHOW CAUSE NOTICE ISSUED BY HER SEEKING AN EXPLANAT ION ABOUT SUCH CAPITAL INTRODUCTION. 8 I FIND THAT THIS ISSUE HAS NOT BEEN ARGUED BY THE AR IN HER WRITTEN SUBMISSION. THIS WOULD MEAN THAT THE ASSESSEE HAD A CCEPTED THE ADDITION AND THE AR DOES NOT WISH TO PRESS THIS GROUND OF APPEAL . THE ADDITION OF THE SUM OF RS.54,588/- UNDER THE PROVISIONS OF SEC. 68 OF THE IT ACT IS CONFIRMED. 13. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A).IN THE WRITTEN SUBMISSIONS, THE A SSESSEE SUBMITTED THAT AMOUNT HAS BEEN TRANSFERRED FROM TREASURY OFFICE, GOVERNME NT OF GUJRAT. THE LD. DR ON THE OTHER HAND POINTED OUT THAT THE ASSESSEE DID N OT SUBMIT ANY EVIDENCE EITHER BEFORE THE LOWER AUTHORITIES AND EVEN NOW ALONG WIT H HIS WRITTEN SUBMISSIONS, MENTIONING THAT AMOUNT WAS RECEIVED FROM TREASURY. IN THESE CIRCUMSTANCES, THE ASSESSEE IS NOT ENTITLED TO ANY RELIEF. 14. WE HAVE HEARD THE LD. DR AND GONE THROUGH T HE FACTS OF THE CASE. AS IS APPARENT FROM THE IMPUGNED ORDERS, THE ASSESSEE DID NOT SUBMIT ANY EVIDENCE BEFORE THE AO IN RESPECT OF CREDIT OF RS.54588/- IN THE CAPITAL ACCOUNT. ON APPEAL, THE ASSESSEE NEITHER SUBMITTED ANY EVIDENCE NOR ARGUED THE ISSUE 16 ITA NOS.. 3191 TO3193/AHD/09 BEFORE THE LD. CIT(A).ACCORDINGLY, THE LD. CIT(A) C ONCLUDED THAT THE ASSESSEE DID NOT WISH TO PRESS THIS GROUND. EVEN BEFORE US, THOU GH THE ASSESSEE IN HIS WRITTEN SUBMISSIONS MENTIONED THAT AMOUNT HAS BEEN TRANSFER RED FROM TREASURY OFFICE, GOVERNMENT OF GUJRAT, HOWEVER, NO EVIDENCE IN SUPPO RT OF THIS STATEMENT HAS BEEN SUBMITTED. IN THESE CIRCUMSTANCES, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). THEREFORE, GROUND NO.2 IN THE APPEAL IN THE CASE OF ZUNZABHAI P PATEL, IS DISMISSED. 15. GROUND NO.3 IN THE APPEAL IN THE CASE OF ZUNZ ABHAI P PATEL RELATES TO ADDITION OF RS.13797/-. DURING THE COURSE OF ASSESS MENT PROCEEDINGS , THE AO NOTICED THAT THE ASSESSEE CLAIMED LONG TERM CAPITAL LOSS OF RS.44390/- ON SALE OF ROW HOUSE WHILE THE COST OF ACQUISITION WAS REFLECT ED AT 766620/-, INDEXED COST AT RS.894390/- AND SALE PRICE AT 850000/-AS ON THE DAT E OF SALE SHOWN AS 3-6-05. HOWEVER, A COPY OF SALE DEED REVEALED THAT THE AG REEMENT WAS REGISTERED ON 22 ND MARCH 05. THOUGH THE ASSESSEEE PLEADED THAT ONE CHEQUE OF INSTALLMENT AMOUNTING TO RS.4 LACS WAS CREDITED INTO BANK ACCOU NT OF ASSESSEE ON 4TH JUNE 2005 AND THE ASSESSEE DID NOT TRANSFER THE POSSESSI ON OF SAID ROW HOUSE TO THE BUYER UNTIL THEN, THE AO FOUND THAT THE POSSESSION HAD ALREADY BEEN HANDED OVER TO THE BUYER ON 16.3.05 AND IT WAS MENTIONED IN THE DOCUMENT THAT CHEQUE NO. 944075 DATED 21.2.05 FOR RS.4 LAKH WAS RECEIVED BY THE ASSESSEE ON 21.2.2005 AND THE ENTIRE SALE CONSIDERATION HAD BE EN RECEIVED BEFORE REGISTRATION. ACCORDINGLY, THE AO CONCLUDED THAT TH E SALE OF THE IMMOVABLE PROPERTY CRYSTALLISED IN THE F.Y 04-05 AND WORKED OUT LONG TERM CAPITAL LOSS AS UNDER: COST OF ACQUISITION RS.766620 INDEXED COST OF ACQUISITION RS.766620 X 480 /426=86 3797 LONG TERM CAPITAL LOSS RS.863797 850000 = RS.1379 7 16. ON APPEAL, THE LEARNED CIT(A) ADJUDICATED THE ISSUE IN THE FOLLOWING TERMS:- 10.1 THE AO REJECTED THE ASSESSEES SUBMISSION ON THE GROUND THAT THE DOCUMENTS SHOWED THAT THE POSSESSION HAD B EEN HANDED OVER TO THE 17 ITA NOS.. 3191 TO3193/AHD/09 BUYER ON 16-3-2005, AND IT ALSO SHOWED THAT THE CHE QUE NO.944075 DATED 21-2- 2005 FOR A SUM OF RS.4 LACS WAS ISSUED BY THE BUYER AND RECEIVED BY THE ASSESSEE ON 21-2-2005. THE ACCEPTANCE OF THE SELLER WAS ALSO RECORDED IN THE SALE DEED. THEREFORE, THE SALE OF THE PROPERTY HAD BEEN CONCLUDED IN THE FY 2004-05 AND CONSEQUENTLY THE INDEXATION ADOPTED BY THE ASSESSEE WAS NOT CORRECT. THE AO THEREFORE RECOMPUTED THE LTCL AND D ISALLOWED THE SUM OF RS.13,797/-. 11. ONCE AGAIN I FIND THAT THIS ADDITION HAS NOT BE EN CONTESTED BY THE AR IN THE WRITTEN SUBMISSION. CONSEQUENTLY THE ADDITION W ILL STAND CONFIRMED. 17. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A).IN THE WRITTEN SUBMISSIONS, THE A SSESSEE REITERATED WHAT WAS SUBMITTED BEFORE THE AO. THE LD. DR ON THE OTHER HA ND SUPPORTED THE FINDINGS OF THE LD. CIT(A). 18. WE HAVE HEARD THE LD. DR AND GONE THROUGH T HE FACTS OF THE CASE. AS IS APPARENT FROM THE IMPUGNED ORDERS, THE ASSESSEE DID NOT CONTEST THE ISSUE BEFORE THE LD. CIT(A) NOR EVEN APPEARED BEFORE US. IN THE ABSENCE OF ANY MATERIAL SO AS TO ENABLE US TO TAKE A DIFFERENT VIE W IN THE MATTER,, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). THEREFORE, GROUND NO.3 IN THE APPEAL IN THE CASE OF ZUNZABHAI P PATEL IS DISM ISSED. 19. GROUND NOS. 2 IN THE APPEALS IN ITA NOS. 3191 &3193/AHD./2009 AND GROUND NO. 4 IN ITA NO. 3192/AHD./2009 BEING GENERAL IN N ATURE, DO NOT REQUIRE ANY SEPARATE ADJUDICATION WHILE NO ADDITIONAL GROUND H AVING BEEN RAISED IN TERMS OF RESIDUARY GROUND NO.3 ITA NOS. 3191&3193/AHD./2009 AND GROUND NO.5 IN ITA NO. 3192/AHD./2009, ALL THESE GROUNDS ARE DISMISSED . 20. IN THE RESULT, THESE THREE APPEALS ARE DISMISS ED. ORDER PRONOUNCED IN THE COURT TOD AY ON 26 -05-2011 SD/- SD/- (T K SHARMA) (A N PAHUJA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :26 -05-2011 18 ITA NOS.. 3191 TO3193/AHD/09 COPY OF THE ORDER FORWARDED TO: 1. I.SANJAYBHAI Z PATEL, II.. SHRI ZUNZABHAI P PATE L,7, GREEN HOUSE, KAILASHNAGAR, SURAT & III.SMT. CHAMPABEN Z PATEL, 7 , GREEN HOUSE, KAILASHNAGAR, SURAT 2. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2, ROOM NO.10, AAYAKAR BHAVAN, MAJURA GATE, SURAT & INCOME-TAX OFFICER, WARD-2(4), ROOM NO. 119, AAYAKAR BHAVAN, MAJURA GATE, SURAT 3. CIT CONCERNED 4. CIT(A)-II, SURAT 5. DR, ITAT, AHMEDABAD BENCH-A, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR/ ASSISTANT REGISTRA R ITAT, AHMEDABAD