Shri Ghanshyambhai Hirabhai Talavia, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(1), RAJKOT-GUJARAT

ITA 346/RJT/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2368 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 23-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K CHAKRAVARTY
• Assessee Lawyers: RD LALCHANDANI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Fair market value
• Section: 50C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] , ! , ! #$ BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.346/RJT/2013 ( / ASSESSMENT YEAR : 2008-09) SHRI GHANSHYAMBHAI H.TALAVIA C/O.M/S.PATEL TIMBER MART 8 LALI PLOT, KUVADVA ROAD RAJKOT / VS. THE ASST.CIT CIRCLE-1 RAJKOT !) ./ ./ PAN/GIR NO. ABRPP 0482 F ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+. / APPELLANT BY : SHRI R.D. LALCHANDANI, ADV. ,-)+/. / RESPONDENT BY : SHRI K.CHAKRAVARTY, D.R. 0/ / DATE OF HEARING 30/12/2015 12 / / DATE OF PRONOUNCEMENT 20/01/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-I, RAJKOT [CIT(A) IN SHORT] DATED 18/7/2013 PERTAINING TO ASSESSMENT YEAR (AY) 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ITA NO.346 /RJT /2013 SHRI GHANSHYAMHAI H. TALAVIA VS. THE ACIT ASST.YEAR 2008-09 - 2 - 1] THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN CONFIRMING THE ADDITION OF RS.187307/- UNDER THE PR OVISIONS SECTION 50C OF THE ACT. THE ADDITION IS NOT JUSTIF IED. 2] WITHOUT PREJUDICE TO GROUND NO.1, THE MATTER W AS NOT REFERRED TO THE VALUATION TO WORK OUT THE MARKET VALUE. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE A SSESSEE WAS REOPENED U/S.147 OF THE INCOME TAX ACT, 1961 ((HEREINAFTER R EFERRED TO AS THE ACT) BY ISSUING NOTICE DATE 09/03/2011 AND THE AS SESSMENT U/S.143(3) R.W.S.147 OF THE ACT WAS FRAMED VIDE ORDER DATED 30 /09/2011, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE ADDITION OF RS .1,87,307/- BY INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT. THE ASSESSEE BEING AGGRIEVED BY THE ASSESSMENT ORDER, PREFERRED AN APP EAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DISMISSED THE APPEAL. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE ASSESSEE IS FURTHER IN APPEAL BEFORE US. 3. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS AGAI NST THE ADDITION OF RS.1,87,307/- BY INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTH ORITIES BELOW WERE NOT JUSTIFIED IN MAKING THE ADDITION AND CONFIRMING THE SAME. HE SUBMITTED THAT THE ACTION OF THE AUTHORITIES BELOW IS CONTRAR Y TO THE PROVISIONS OF LAW AS WELL AS THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL. HE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED DECISI ON OF THE COORDINATE ITA NO.346 /RJT /2013 SHRI GHANSHYAMHAI H. TALAVIA VS. THE ACIT ASST.YEAR 2008-09 - 3 - BENCH (ITAT PUNE B BENCH) IN ITA NO.1543/PN/2007 FOR AY 2004-05 DATE 12/01/2010, REPORTED AT (2010) 38 DTR (PUNE) ( TRIB) 19. HE FURTHER SUBMITTED THAT THE ONLY GRIEVANCE OF THE ASSESSEE I S THAT THE AO ADOPTED THE VALUATION AS ADOPTED BY THE REVENUE AUTHORITY. 3.1. ON THE CONTRARY, LD.DR SUPPORTED THE ORDERS O F THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ONLY ISSUE TO BE DETERMINED IS WHETHER SECTION 50C OF THE ACT WOULD BE APPLICABLE ON THE FACTS OF THE PRESENT CASE. UN DISPUTEDLY, AS PER SECTION 50C OF THE ACT, THE AO IS AUTHORIZED TO ADO PT THE VALUE OF AN IMMOVABLE ASSET ON THE BASIS OF THE VALUE ADOPTED O R ASSED OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT FOR THE PURP OSE OF PAYMENT OF STAMP DUTY IN RESPECT OF TRANSFER OF IMMOVABLE ASSE T. IN THE PRESENT CASE, THE STAMP VALUATION AUTHORITY HAVE ADOPTED TH E VALUE OF THE STAMP- PAPERS SUBMITTED BY THE ASSESSEE. THERE IS NO MATE RIAL ON RECORD THAT THE ASSESSEE HAS MADE ANY REPRESENTATION TO THE STAMP V ALUATION AUTHORITY FOR REFUND OF THE STAMP DUTY PAID IN EXCESS. IT IS ALS O NOT IN DISPUTE THAT WHEN THE AO PROCEEDED ON THE BASIS OF THE VALUE ADO PTED BY THE STAMP VALUATION AUTHORITY, HE DID NOT REFER THE ISSUE OF VALUATION TO DVO, WHEN THE ASSESSEE HAD DISPUTED THE VALUE ADOPTED AS PER FORM NO.1 RECORDED BY STAMP VALUATION AUTHORITY. IN TERMS OF SECTION 5 5A OF THE ACT, THE AO OUGHT TO HAVE REFERRED THE VALUATION OF THIS CAPIT AL ASSET TO A VALUATION ITA NO.346 /RJT /2013 SHRI GHANSHYAMHAI H. TALAVIA VS. THE ACIT ASST.YEAR 2008-09 - 4 - OFFICER WHEN THE ASSESSEE CLAIMS THAT THE STAMP VAL UATION AUTHORITY HAS ADOPTED OR ASSESSED THE VALUE IN EXCESS OF THE FAIR MARKET VALUE OF THE PROPERTY AS ON DATE OF TRANSFER. THE LD.COUNSEL FO R THE ASSESSEE HAS POINTED OUT THAT SUCH CLAIM WAS MADE BEFORE THE AO AND THE AO WITHOUT REFERRING THE ISSUE OF VALUATION OF CAPITAL ASSET W ITH REGARD TO ITS FAIR MARKET VALUE TO THE VALUATION AUTHORITY AND PROCEE DED TO ADOPT THE VALUATION AS RECORDED BY THE STAMP VALUATION AUTHOR ITY IN FORM NO.1. THE LD.COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE JUDGEMENT OF THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT ALLD AND ANR. VS. SHRI CHANDRA NARAIN CHAUDHRI IN INCOME TAX APPEAL N O.287 OF 2011, WHEREIN THE HONBLE HIGH COURT HAS HELD THAT THE AO HAS TO RECORD VALID REASONS, WHICH ARE JUSTIFIABLE IN LAW. HE IS NOT REQUIRED TO ADOPT AN EVASIVE APPROACH OF APPLYING DEEMING PROVISION WITH OUT DECIDING THE OBJECTION OR TO REFER THE MATTER TO THE DVO UNDER S ECTION 55-A OF THE ACT AS A MATTER OF COURSE. IN THE PRESENT CASE, THE A O HAS NOT REFER TO THE MATTER TO THE DVO TO ASCERTAIN THE FAIR MARKET VALU E OF THE CAPITAL ASSET. MOREOVER, THE ASSESSEE HAS POINTED OUT THAT DUE TO INADVERTENT MISTAKE IN CALCULATION OF STAMP DUTY PAYABLE, THE STAMP VALUAT ION AUTHORITY ADOPTED THE VALUE ON THE BASIS OF STAMP-PAPER SUBMITTED, WI THOUT REFERRING TO PREVALENT JANTRI VALUE (CIRCLE VALUE) AND SALE CONS IDERATION. UNDER THESE FACTS, WE ARE UNABLE TO CONFIRM THE FINDINGS OF THE AUTHORITIES BELOW AND, ACCORDINGLY, DIRECT THE AO TO DELETE THE ADDITION. THUS, GROUND RAISED IN THE ASSESSEES APPEAL IS ALLOWED. ITA NO.346 /RJT /2013 SHRI GHANSHYAMHAI H. TALAVIA VS. THE ACIT ASST.YEAR 2008-09 - 5 - 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY, THE 20 TH DAY OF JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ! ! ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 20/ 01 /2016 . .,.. ./ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 6 7 / CONCERNED CIT 4. 7 ( ) / THE CIT(A)-I, RAJKOT 5. 9:, , , /DR,ITAT,RAJKOT 6. :EFG0 / GUARD FILE. / BY ORDER, -9, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) & ' , / ITAT, RAJKOT 1. DATE OF DICTATION 13.1.16 (DICTATION-PAD 3-- P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..186.1.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 20.1.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20.1.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER