Shri Chiranjilal Agrawal, Burhanpur V. THE ITO, Burhanpur

ITA 337/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5677 (ITAT-INDORE)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 04-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S DESHPANDE
• Assessee Lawyers: MOHD JAVED
• Keywords: Capital asset; Opportunity of being heard; Cost of acquisition; Fair market value

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO. 337/IND/2016 ASSESSMENT YEAR: 2009-10 CHIRANJILAL AGRAWAL BURHANPUR PAN AAGPA 3485R :: APPELLANT VS INCOME TAX OFFICER BURHANPUR :: RESPONDENT REVENUE BY SHRI S.S. DESHPANDE ASSESSEE BY SHRI MOHD. JAVED ! ' #$ DATE OF HEARING 4.10.2016 %&'( #$ DATE OF PRONOUNCEMENT 19.10.2016 * O R D E R PER SHRI D.T. GARASIA, JM THE ASSESSEE HAS COME UP IN APPEAL AGAINST THE ORDER OF THE LEARNED CIT(A)-22, NEW DELHI, CAMP AT INDORE, DATED 19.2.2016. ITA NO. 337/IND/2016 CHIRANJILAL AGRAWAL 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS CARRYING ON THE BUSINESS OF SUPPLY OF YARN ON COMMISSION BASIS AND ALSO A DEALER SINCE A PRETTY LONG TIME. THE ASSESSEE IS DERIVING INCOME FROM CULTIVATIO N OF AGRICULTURAL LAND. THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 30.9.2009 DECLARING INCOME AT RS.8,36,419/- AND AGRICULTURAL INCOME AT RS.1,25,772/-. THE ASSESSING OFFICER HAS ALSO FOUND DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAS SHOWN CAPITAL GAIN OF RS.14,38,548/-. THE ASSESSEE HAS SOLD ONE PROPERTY ALONG WITH ONE SMT. SITADEVI SOMANI AND THE ASSESSEE IS HAVING 50% SHARE AND TOTAL CONSIDERATION WAS DETERMINED BY STAMP DUTY AUTHORITY AT RS.39,47,500/-. THEREFORE, TH E MATTER WAS REFERRED TO THE DVO TO DETERMINE THE FAIR MARKET VALUE OF THE LAND AND THE ASSESSEE HAS SHARE, THEREFORE, THE CAPITAL GAIN WAS WORKED OUT AT ITA NO. 337/IND/2016 CHIRANJILAL AGRAWAL 3 RS.18,75,602/-. THEREFORE, THE CAPITAL GAIN OF RS.14,38,548/- WAS WORKED OUT. THE MATTER WAS CARRIED IN APPEAL AND THE LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 3. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEES PROPERTY IS LIABLE TO CAPITAL GAIN BUT THE ASSESSEE HAS SOLD THIS PROPERTY FOR CONSIDERATION OF RS.10,04,000 /- AND THE MARKET VALUE OF THE PROPERTY IS RS.10,04,000/- ONLY WHILE THE DVO HAS TAKEN THE MARKET VALUE AS PER THE GUIDELINES DECLARED BY THE STATE GOVERNMENT AND AS PER THE GUIDELINES FOR THE SAME LAND, IF TWO SELLER S AND TWO PURCHASERS AND TWO SELLERS AND ONE PURCHASER AND ONE SELLER AND ONE PURCHASER, THE VALUATION OF THE PROPERTY FOR STAMP DUTY IS DIFFERENT. THE ASSESSEES CONTENTION THAT THE ASSESSEE HAS NOT RECEIVED MORE THAN RS. 10,04,000/- AND THE MARKET VALUE OF THE ITA NO. 337/IND/2016 CHIRANJILAL AGRAWAL 4 PROPERTY IS RS. 10,04,000/- ONLY FOR THE STAMP DUTY, IT MAY BE HIGHER BUT ACTUALLY THE ASSESSEE HAS RECEIVED THE CONSIDERATION OF RS.10,04,000/- ONLY, THEREFORE, THE ASSESSEES SHARE COMES TO ONE HALF OF THE PROPERTY AND AFTER ONE HALF SHARE TO ONE HALF OF THE PROPERTY AND AFTER ONE HALF SHARE OF THE PROPERTY, THE CAPITAL GAIN IS TO BE CHARGED AFTER LESS THE COST OF ACQUISITION, THEREFORE, IT WILL HAVE A MINIMUM EFFECT. THE DVO HAS ADOPTED THE VALUATION OF STAMP DUTY AUTHORITY BUT IT IS NOT AS PER LAW. THEREFORE, THE MATTER MAY BE RESTORED TO THE DVO FOR DETERMINING THE MARKET VALUE AS ON THE DATE OF SALE. THE ASSESSEE IS DIRECTED TO FILE OBJECTI ONS BEFORE THE DVO AND THE DVO SHOULD CONSIDER HIS OBJECTIONS AND DECIDE THE MARKET VALUE AFTER CONSIDERING THE STAMP DUTY VALUATION AND DECIDE THE VALUE AS PER LAW OF THE CAPITAL ASSET. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO DECIDE THE MATTER AFR ESH ITA NO. 337/IND/2016 CHIRANJILAL AGRAWAL 5 IN THE LIGHT OF THE FRESH REPORT OF DVO, AFTER GIVIN G THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 19 OCTOBER, 2016. SD SD ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 19 OCTOBER, 2016. DN/ ITA NO. 337/IND/2016 CHIRANJILAL AGRAWAL 6