ITO 19(1), MUMBAI V. SAMEER ISHQ ZERI, MUMBAI

ITA 3277/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8006 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 29-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KETAN
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI , ! '# $ $ $ $ , % && , , '# ' BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUICIAL MEMBER ./ I.T.A. NO.3277/MUM/2013 ( ( ( ( ( / ASSESSMENT YEAR :2008-09 THE ACIT, 19(1), PIRAMAL CHAMBERS, PAREL, MUMBAI-400 012 / VS. SHRI SAMEER ISHQ ZERI, SHOP NO. 1, MAKHIJA ARCADE, 35 TH ROAD, LINKING ROAD, BESIDE LINKWAY HOTEL, KHAR (W), MUMBAI-400 052 #) ! ./ %* ./ PAN/GIR NO. : AACPZ 6697E ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . / APPELLANT BY: SHRI PANKAJ KUMAR ,-)+ / . / RESPONDENT BY: SHRI KETAN PANCHMIA / 01! / DATE OF HEARING :04.08.2014 23( / 01! / DATE OF PRONOUNCEMENT :08.08.2014 '4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)- 22, MUMBAI DT. 08.02.2013 PERTAINING TO A. Y.2008-09. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE RE VENUE IS THAT THE LD. CIT(A) ERRED IN DELETING THE PENALTY U/S. 271(1 )(C) OF THE ACT AND WHILE DOING SO THE LD. CIT(A) ERRED IN NOT FOLLOWIN G THE DECISION OF THE ITA NO. 3277/M/2013 2 TRIBUNAL, MUMBAI BENCH IN THE CASE OF ACIT VS SUPRE ME INDUSTRIES IN ITA NO. 7080/M/05. 3. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSE E HAS SOLD TWO IMMOVEABLE PROPERTIES NAMELY FLAT NOS 101 AND 105 A T KHAR, MUMBAI FOR A CONSIDERATION OF RS. 23 LAKHS AND 37 LAKHS RE SPECTIVELY ON WHICH THE ASSESSEE SHOWED LONG TERM CAPITAL GAINS (LTCG). TH E ASSESSING OFFICER NOTICED THAT FLAT SOLD FOR RS. 23 LAKHS, ST AMP DUTY VALUATION WAS AT RS. 29,36,098/- AND THE FLAT SOLD AT RS. 37 LAKH S STAMP DUTY VALUATION WAS AT RS. 44,14,650/-. 3.1. THE ASSESSEE REVISED HIS COMPUTATION OF LTCG A FTER TAKING THE STAMP DUTY VALUE AS SALE CONSIDERATION. ON THESE F ACTS, PENALTY PROCEEDINGS WERE INITIATED U/S. 271(1)(C) OF THE AC T AND THE AO WENT ON TO LEVY PENALTY FOR FURNISHING INACCURATE PARTICULA RS. 4. BEFORE THE LD. CIT(A), IT WAS CONTENDED THAT THE SALE VALUE WAS NEVER QUESTIONED BY THE AO WHICH MEANS THAT THE MON EY RECEIVED BY THE ASSESSEE FROM THE SALE OF PROPERTY WAS ACCEPTED BY THE AO ONLY BECAUSE OF THE DEEMING PROVISION OF SEC. 50C OF THE ACT, TH E STAMP DUTY VALUATION WAS TAKEN AS FULL VALUE OF CONSIDERATION. THE LD. CIT(A) WAS CONVINCED WITH THE SUBMISSIONS OF THE ASSESSEE RELYING UPON T HE DECISION OF THE TRIBUNAL, MUMBAI BENCH IN THE CASE OF RENU HINGORAN I VS ACIT IN ITA NO. 2210/M/2010 FOR A.Y. 2006-07. THE LD. CIT(A) O BSERVED THAT DEEMING PROVISIONS DO NOT NECESSARILY ATTRACT PENAL TY AS THAT DOES NOT PROVE THAT ASSESSEE HAS RECEIVED THE AMOUNT AS PER THE CIRCLE RATE OF THE AREA. THE PENALTY SO LEVIED BY THE AO WAS DELETED B Y THE LD. CIT(A). 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. ITA NO. 3277/M/2013 3 6. THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED TH E FINDINGS OF THE AO. 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. TO SUBSTAN TIATE HIS CLAIM, THE LD. COUNSEL RELIED UPON THE DECISION OF THE TRIBUNAL, M UMBAI BENCH IN THE CASE OF RENU HINGORANI (SUPRA), AHMEDABAD BENCH IN THE CASE OF CHIMANLAL PATEL IN ITA NO. 508/AHD/2010, CALCUTTA HIGH COURT IN THE CASE OF MADAN THEATRE IN GA NO. 684 OF 2013, ITAT N O. 62 OF 2013. THE LD. COUNSEL ALSO RELIED UPON THE DECISION OF TH E HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LT D. 322 ITR 158. 8. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW IN THE LIGHT OF THE DECISIONS RELIED UPON BY THE LD. C OUNSEL. IT IS NOT IN DISPUTE THAT THE STAMP DUTY VALUE HAS BEEN TAKEN AS THE FULL VALUE OF CONSIDERATION IN RESPECT OF THE TWO FLATS SOLD BY T HE ASSESSEE. IT IS ALSO NOT IN DISPUTE THAT THE STAMP DUTY VALUE HAS BEEN TAKEN AS PER THE DEEMING PROVISIONS OF SEC. 50C OF THE ACT. THERE IS NOTHIN G ON RECORD TO SHOW THAT THE ASSESSEE HAS ACTUALLY RECEIVED THE AMOUNT AS PER THE STAMP DUTY VALUE. CONSIDERING THESE FACTS IN THE LIGHT OF THE DECISIONS RELIED UPON BY THE ASSESSEE MENTIONED HEREINABOVE, NO INTERFERENCE IS CALLED FOR. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH AUGUST, 2014 SD/- SD/- (SANJAY GARG ) (N.K. BILLAIYA) '# / JUDICIAL MEMBER ! '# / ACCOUNTANT MEMBER MUMBAI; 5' DATED : 8 TH AUGUST, 2014 . . ./ RJ , SR. PS ITA NO. 3277/M/2013 4 '4 '4 '4 '4 / // / ,0 ,0 ,0 ,0 6(0 6(0 6(0 6(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 8& ,0 , , / DR, ITAT, MUMBAI 6. &9 : / GUARD FILE. '4 '4 '4 '4 / BY ORDER, -0 ,0 //TRUE COPY// ; ;; ; / < < < < % % % % (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI