The ITO, Ward-6(2), Ahmedabad V. Smt. Madhukanta P.Shah, Ahmedabad

ITA 3328/AHD/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67805 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-10-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 16-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Salary income
• Section: 50C; 133(6); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO.3328/AHD/2010 A.Y. 2007-08 THE INCOME TAX OFFICER, WARD-6(2), AHMEDABAD. VS SMT. MADHUKANTA P. SHAH. 10, DEVANSHAH BUNGLOWS, DRIVE-IN, ROAD, THALTEJ PAN: ACUPS 1876Q (APPELLANT) (RESPONDENT) REVENUE BY : SHRI P. L. KUREEL, SR.D.R. , ASSESSEE(S) BY : NONE / DATE OF HEARING : 01/10/2013 / DATE OF PRONOUNCEMENT: 4/10/2013 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF LEARNED CIT(A)-XI, AHMEDABAD, DATED 12.10.2010. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: THE LD. COMMISSIONER OF INCOME TAX(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.21,83,260/- MADE U/S.69 B OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S. 143(3), DATED 29.12.2009 WERE THAT THE ASSESSEE IN INDIVIDUAL CAPACITY HAS EARNED SALARY INCOME, CAPITAL GAIN AND HOUSE PROPERTY INCOME. THE AO HAS RECEIVED AN INFORMATION ACCORDIN G TO WHICH IT WAS FOUND THAT THE ASSESSEE HAD PURCHASED AN IMMOVABLE PROPERTY DECLARED AT ITA NO.3328/AHD/2010 ITO AHMEDABAD VS. SMT. MADHUKANTU P. SHAH. FOR A.Y. 2007-08 - 2 - RS.69,66,540/-. AS AGAINST THAT, THE PROPERTY WAS V ALUED BY THE REGISTRAR AT RS. 91,49,900/-. THE DIFFERENCE BETWEEN THE TWO, I.E., RS.21,83,360/- WAS TAXED IN THE HANDS OF THE ASSESSEE BY INVOKING THE PROVISIONS OF SECTION 69B OF IT ACT. THE RELEVANT FACTS RECORDED BY THE AO ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: IN THIS CASE AS PER ANNUAL INFORMATION REPORT RECEI VED FROM THE SUB- REGISTRAR PALDI-4, AHMEDABAD, THE ASSESSEE HAS PURC HASED IMMOVABLE PROPERTY DURING THE F.Y. 2006-07 RELEVANT TO THE A. Y. 2007-08. INFORMATION U/S. 133(6) OF THE ACT WAS CALLED FOR FROM THE OFFI CE OF SUB-REGISTRAR PALDI-4, AHMEDABAD. ON VERIFICATION OF THE DETAILS SUBMITTED BY THE SUB-REGISTRAR, PALDI-4, AHMEDABAD, IT WAS NOTICED THAT AS PER THE ORDER FOR VALUATION OF IMMOVABLE PROPERTY, THE SUB-REGISTRAR HAS GIVEN A D ETAILED WORKING OF THE VALUATION OF THE PROPERTY & VALUED THE SAID PROPERT Y AT RS.91,49,900/- AS AGAINST THE VALUE DECLARED BY THE ASSESSEE AT RS.69 ,66,540/- IN THE PURCHASE DEED & LEVIED ADDITIONAL STAMP DUTY OF RS.1,29,870/ - AS AGAINST STAMP DUTY CHARGES OF RS.4,14,550/- PAID BY THE ASSESSEE, WHIC H HAS BEEN DULY PAID BY THE ASSESSEE, WHICH FACT IS EVIDENT SINCE THE SAID SALE/PURCHASE DEED HAS BEEN REGISTERED BY THE SUB-REGISTRAR, PALDI-4, AHMEDABAD VIDE REGISTRATION NO.3517 DATED 24.4.2006 IN THE NAME OF THE ASSESSEE . A COPY OF THE REGISTERED SALE DOCUMENT HAS ALSO BEEN SUBMITTED BY THE SUB-RE GISTRAR, PALDI-4, AHMEDABAD OT THIS OFFICE. IT IS THEREFORE CLEAR THA T THE VALUATION OF THE SAID PROPERTY BY THE SUB-REGISTRAR PALDI-4, AHMEDABAD AT RS.91,49,990/- HAS BEEN ACCEPTED BY THE ASSESSEE. THE ASSESSEE HAS FAILED T O PRODUCE ANY EVIDENCE THAT THE VALUE OF THE PROPERTY ASSESSED AT RS.91499 00/- BY THE STAMP VALUATION AUTHORITY HAS BEEN DISPUTED IN ANY APPEAL OR REVISI ON AND NO REFERENCE HAS BEEN MADE BY THE ASSESSEE AGAINST THE SAID VALUATIO N BY THE STAMP VALUATION AUTHORITY BEFORE ANY AUTHORITY, COURT OR THE HIGH C OURT. THE WHOLE SCENARIO GIVES A PICTURE THAT THE ASSESSEE HAS UNDERVALUED T HE PROPERTY FOR THE PURPOSE OF INCOME TAX. THE VALUE ASCERTAINED BY THE SUB-REG ISTRAR IS THE ACCEPTABLE VALUE OF THE PROPERTY AS PER THE INCOME TAX ACT, AN D THE ASSESSEE HAS THUS CLEARLY TRIED TO UNDERVALUE THE PROPERTY WHICH IN T URN HAS LED TO UNDERASSESSMENT OF INVESTMENT IN IMMOVABLE PROPERTY OF THE ASSESSEE. 3. WHEN THE MATER WAS CARRIED BEFORE LEARNED THE CI T(A), IT WAS HELD THAT THE PROVISIONS OF SECTION 50C COULD NOT BE APP LIED ON THE FACTS OF THE CASE BECAUSE THE ASSESSEE HAS PURCHASED THE PROPERT Y INSTEAD OF SALE OF PROPERTY. THE RELEVANT PARAGRAPHS OF LEARNED CIT(A) ARE REPRODUCED BELOW: 3. THE SECOND GROUND OF APPEAL IS DIRECTED AGAINST THE ADDITION OF RS.21,83,360/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY UNDER ITA NO.3328/AHD/2010 ITO AHMEDABAD VS. SMT. MADHUKANTU P. SHAH. FOR A.Y. 2007-08 - 3 - SECTION 69 OF THE IT ACT. IT IS SEEN THAT THE APPEL LANT HAD PURCHASED IMMOVABLE PROPERTY FOR A CONSIDERATION OF RS.69,66, 540/- AND THE SUB- REGISTRAR VALUED THE SAID PROPERTY AT RS.91,49,900/ - FOR STAMP DUTY PURPOSE. THEREFORE, AFTER DISCUSSING THE ISSUE AT LENGTH IN THE ASSESSMENT ORDER AND AFTER REFERRING TO THE PROVISIONS OF SECTION 50C OF THE ACT, THE AO MADE ADDITION OF RS.21,83,360/- (BEING THE DIFFERENCE BE TWEEN THE STAMP DUTY VALUATION AND PURCHASE CONSIDERATION OF THE SAID PR OPERTY) U/S.69B OF THE IT ACT, 1961. 3.2 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A.R. OF THE APPELLANT AND THE OBSERVATION OF THE ASSESSING OFFICER IN THE ASS ESSMENT ORDER. THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL/EVIDENCE TO SHOW THAT THE IMPUGNED AMOUNT WAS ACTUALLY PAID BY THE APPELLANT. THE CONT ENTIONS PUT FORTH BY THE A.R. OF THE APPELLANT ARE TENABLE. AHMEDABADS TRIB UNALS DECISION CITED AT 38 SOT 486(SUPRA), RELIED ON BY THE A.R. OF THE APP ELLANT IS SQUARELY APPLICABLE TO THE FACTS OF THE APPELLANTS CASE. HA VING CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF T HE ABOVE DECISION, I AM OF THE VIEW THAT THE ASSESSING OFFICER IS NOT JUSTIFIE D IN MAKING ADDITION UNDER SECTION 69B OF THE ACT. THE ADDITION MADE BY THE AO AT RS.21,83,360/-. 4. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE RESPONDENT ASSESSEE. THE MATTER BEING TRIFLE AND CO VERED BY FEW ORDERS OF THIS TRIBUNAL, THEREFORE, WE HAVE DECIDED TO PROCEE D EX-PARTE QUA THE ASSESSEE AFTER HEARING LEARNED DR. ONCE AN ADMITTED FACTUAL POSITION IS THAT THE AMOUNT IN QUESTION WAS NOT THE DIFFERENCE ON ACCOUNT OF SALE OF THE PROPERTY BUT UNDISPUTEDLY IT WAS IN RESPECT OF THE PURCHASE OF THE PROPERTY, THEREFORE, THE PROVISIONS OF SECTION 50C OF IT ACT WERE WRONGLY INVOKED BY THE AO. WE ARE NOT INCLINED TO I NTERFERE WITH THE FINDINGS OF LEARNED CIT(A), HENCE, THE SAME ARE HER EBY CONFIRMED AND THIS GROUND OF THE REVENUE IS, THEREFORE, DELETED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. SD/- SD/- (ANIL CHATURVEDI) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 4/10/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY ITA NO.3328/AHD/2010 ITO AHMEDABAD VS. SMT. MADHUKANTU P. SHAH. FOR A.Y. 2007-08 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD