Sanket Industries Ltd, Jalna V. ACIT Cen Cir-Aurangabad, Aurangabad

ITA 354/PUN/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4344 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 22-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S C SARANGI
• Assessee Lawyers: S V GUPTE
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.354/PN/2012 (ASSESSMENT YEAR 2006-07) SANKET INDUSTRIES LTD., SHOP NO. 1 & 2, PREMGANGA PLAZA, NEAR SHIVAJI PUTLA, JALNA. PAN NO. AAFCS 6118M .. APPELLANT VS. ACIT, CENTRAL CIRCLE, AURANGABAD .. RESPONDENT ASSESSEE BY : SRI S.V. GUPTE REVENUE BY : SRI S.C. SARANGI DATE OF HEARING : 07-05-2013 DATE OF PRONOUNCEMENT : 14-05-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 23-12-2011 OF THE CIT(A), AURANGABAD RELATING TO AS SESSMENT YEAR 2006- 07. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE BELONGS TO SHAH GROUP OF JALNA WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF BIDIS AND GUTKHA (PAN MASALA). A SEARCH ACTION U/S.132 O F THE INCOME TAX ACT WAS CONDUCTED ON THE SHAH GROUP ON 25-02-2007. IN RESPONSE TO NOTICE U/S.153C ISSUED ON 09-02-2008 (SERVED ON THE ASSESS EE ON 28-09-2008) THE ASSESSEE FILED RETURN OF INCOME ON 12-12-2008 DISCL OSING TOTAL LOSS OF RS.93,286/-. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS SHOWN LOSS OF R S.93,286/- ON SALE OF LAND AT JALNA. FROM THE COMPUTATION OF INCOME HE OBSERV ED THAT THE SAID LAND WAS PURCHASED ON 24-06-2002 FOR A PRICE OF RS.27,82 ,290/- AND THE SAME 2 WAS SOLD ON 08-09-2005 FOR A PRICE OF RS.30 LAKHS. THE ADJUSTED COST OF ACQUISITION WAS SHOWN AT RS.30,93,286/- AND ACCORDI NGLY THE LONG TERM CAPITAL LOSS WAS CALCULATED AT RS.93,286/-. THE ASS ESSING OFFICER OBSERVED FROM THE SALE DEED SUBMITTED BY THE ASSESSEE THAT T HE GOVERNMENT VALUATION OF THE LAND IS RS.88,55,000/- ON WHICH STAMP DUTY H AS BEEN PAID AND THE ASSESSEE HAS NOT DISPUTED IT BEFORE THE STAMP VALUA TION AUTHORITY. APPLYING THE PROVISIONS OF SECTION 50C THE ASSESSING OFFICER HELD THAT THE FULL VALUE OF CONSIDERATION OF THE PROPERTY IS RS.88,55,000/-. AFTER DEDUCTING THE ADJUSTED COST OF ACQUISITION FROM THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY THE ASSESSING OFFICER DETERMINED THE NET LONG TERM CAPITAL GAIN AT RS.57,61,714/-. THE ASSESSING OFFICER ACCORDING LY MADE ADDITION OF RS.57,61,714/- TO THE TOTAL INCOME OF THE ASSESSEE AND DETERMINED THE ASSESSED INCOME AT RS.56,68,428/-. 3. IN APPEAL THE LD. CIT(A) AFTER CONSIDERING THE V ALUE DETERMINED BY THE DVO AT RS.79,67,188/- SUBSTITUTED THE VALUE OF THE PROPERTY AT RS.79,67,188/- AS AGAINST RS. 88,55,000/- DETERMINE D BY THE ASSESSING OFFICER. THUS, HE GAVE RELIEF OF RS.8,87,812/- TO THE ASSESSEE AND SUSTAINED THE ADDITION OF RS.48,73,902/-. 3.1 AGGRIEVED WITH SUCH PART RELIEF GIVEN BY THE LD . CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT THE ASSESSEE HAD FILED THE ORIGINAL RETURN OF INCOME ON 17-12-2006. REFERRING TO PAPER BOOK PAGE NOS. 18 TO 21 HE SUBMITTED THAT THE E-RETURN WAS FILED ON 17-12-2006 ALONG WITH ENCLOSURES. REFERRING TO THE COPY OF THE 3 ASSESSMENT ORDER HE DREW THE ATTENTION OF THE BENCH TO PARA 4 OF THE ASSESSMENT ORDER WHERE THE ASSESSING OFFICER HAS ME NTIONED THAT THE ASSESSEE HAD NOT FILED THE ORIGINAL RETURN OF INCOM E. HE SUBMITTED THAT ALTHOUGH THIS ASPECT WAS BROUGHT TO THE NOTICE OF L D. CIT(A) IN THE WRITTEN SUBMISSION FILED BEFORE HIM ON 23-11-2011, HOWEVER, THE ORDER OF THE LD. CIT(A) IS ALSO SILENT ON THIS ISSUE. HE SUBMITTED THAT WHEN THE ASSESSEE HAD FILED THE ORIGINAL RETURN OF INCOME, THE ASSESS ING OFFICER MENTIONS THAT NO RETURN WAS FILED AND RETURN WAS FILED ONLY IN RE SPONSE TO NOTICE U/S.153C AND THE ASSESSMENT HAS BEEN COMPLETED ACCORDINGLY. HE ACCORDINGLY SUBMITTED THAT UNDER THESE CIRCUMSTANCES, THE MATTE R SHOULD BE SET-ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH CONSIDERING THE ORIGINAL RETURN OF INCOME. 5. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND WHILE SUPPORTING THE ORDER OF THE LD. CIT(A) SUBMITTED TH AT THE ASSESSEE SHOULD HAVE BROUGHT THIS TO THE NOTICE OF THE ASSESSING OF FICER AT THE TIME OF ASSESSMENT. 6. AFTER HEARING BOTH THE SIDES WE FIND FROM THE PA PER BOOK FURNISHED BY THE ASSESSEE THAT THE ASSESSEE COMPANY HAS FILED THE E-RETURN FOR A.Y. 2006-07 ON 17-12-2006. HOWEVER, WITHOUT CONSIDERIN G THIS ORIGINAL RETURN AND MENTIONING THAT ASSESSEE HAS NOT FILED ORIGINAL RETURN AND FILED RETURN OF INCOME IN RESPONSE TO NOTICE U/S.153C DECLARING TOT AL INCOME OF (-) RS.93,286/- THE ASSESSING OFFICER PROCEEDED TO COMP LETE THE ASSESSMENT. ALTHOUGH THE ISSUE OF FILING OF ORIGINAL RETURN ON 17-12-2006 VIDE E-RECEIPT NO.90304358 DISCLOSING LOSS OF RS.1,82,881/- WAS BR OUGHT TO THE NOTICE OF 4 THE LD. CIT(A) WE FIND THE ORDER OF THE LD. CIT(A) IS ALSO SILENT ON THIS ISSUE. UNDER THESE CIRCUMSTANCES, WE AGREE WITH TH E CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT MATTER SHOULD BE SET- ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THE ORIGINAL RETURN FILED BY THE ASSESSEE. WE ACCORDINGLY RESTO RE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW KEEPING IN MIND THE RETURN FILED BY THE ASSESSEE ON 17-12-2006. NEEDLESS TO SAY THE ASSESSING OFFICER SHALL GIVE DUE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. SIN CE WE ARE RESTORING THE MATTER TO THE FILE OF THE ASSESSING OFFICER ON THIS PRELIMINARY ISSUE WE REFRAIN OURSELVES FROM TOUCHING UPON THE MERIT OF T HE CASE. GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATIST ICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN ON THIS THE 14 TH DAY OF MAY 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED THE 14 TH MAY 2013. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A), AURANGABAD 4. THE CIT CENTRAL, NAGPUR 5. THE DR B BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // PRIVATE SECRETARY, INCOME TAX APPELLATE T RIBUNAL, PUNE.