ACIT, Cir-10(1), Hyderabad V. ShriK. Ranjeet Mohan, S'bad, Secunderabad

ITA 357/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59105 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 09-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: G M KRISHNA MURTHY
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER I.T.A. NO. 357/HYD/2011 A.Y. 2006-07 ACIT CIRCLE-10(1) HYDERABAD V S. SRI K. RANJEET MOHAN SECUNDERABAD PAN: AJLPK6402C APPELLANT RESPONDENT I.T.A. NO. 359/HYD/2011 A.Y. 2006-07 ACIT CIRCLE-10(1) HYDERABAD V S. SRI K. RAJESH MOHAN SECUNDERABAD PAN: AJSPK5263E APPELLANT RESPONDENT APPELLANT BY: SHRI B.V. PRASAD REDDY RESPONDENT BY: SHRI G.M. KRISHNA MURTHY DATE OF HEARING: 18 . 0 1.201 2 DATE OF PRONOUNCEMENT: 18.01.2012 O R D E R PER CHANDRA POOJARI, AM: THE ABOVE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE DIFFERENT ORDER OF THE CIT(A)-VI, HYDERABAD DAT ED 15.11.2010 FOR A.Y. 2006-07. SINCE THE ISSUE INVOLVED IN THES E APPEALS IS COMMON IN NATURE, BOTH THESE APPEALS ARE CLUBBED TO GETHER, HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. THE REVENUE RAISED THE FOLLOWING IDENTICAL GROUNDS IN BOTH THE APPEALS: 1. THE CIT(A) ERRED IN BOTH LAW AND FACTS. 2. THE CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ADOPT THE COST OF LAND SOLD BY THE ASSESSEE, SITUAT ED AT MG ROAD AT THE RATE MENTIONED BY THE ASSESSEE AS AGAINST THE COST AS ADOPTED BY THE ASSESSING I.T.A. NOS. 357 & 359/HYD/2011 SHRI K. RANJEET MOHAN & ANR. ======================== 2 OFFICER AS PER THE PROVISIONS OF THE SECTION 50C OF THE IT ACT, 1961 FOR THE PURPOSE OF CALCULATION OF CAPI TAL GAIN. 3. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE ASSESSING OFFICER HAS CORRECTLY APPLIED THE PROVISIONS OF SECTION 50C OF IT ACT AS PROPERTY WAS HANDED OVER TO THE BUYER, THE DOCUMENT HAS BEEN PRESENTED FOR REGISTRATION AND PAID REGISTRATION FE E, TRANSFER DUTY AND ALSO PAID DEFICIT STAMP DUTY AND THE PURCHASER'S APPEAL HAS BEEN DISMISSED BY THE II ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT, THOUGH TH E FURTHER APPEAL IS PENDING AND THE DOCUMENT IS YET T O BE REGISTERED. 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE OPINI ON THAT SIMILAR ISSUE CAME UP FOR CONSIDERATION IN THE CASE OF CO-OWNER IN ITO VS. K. ROOPESH MOHAN IN I.T.A. NO. 785/HYD/2010 FOR A.Y. 2006-07. THE TRIBUNAL VIDE ORDER DATED 8.7.2011 H ELD AS FOLLOWS: '5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE ONLY DISPUTE ARISING OUT OF THIS APPEAL IS WHET HER SECTION 50C OF THE ACT IS APPLICABLE FOR THE PURPOS E OF COMPUTATION OF CAPITAL GAIN, WHEN THE DOCUMENT RELATING TO THE PROPERTY UNDER CONSIDERATION IS PEN DING FOR REGISTRATION IN VIEW OF THE DISPUTE RELATING TO STAMP DUTY. WE FIND THAT THE DECISION OF JODHPUR BENCH O F THE TRIBUNAL, RELIED UPON BY THE ASSESSEE AS WELL AS TH E CIT(A) IN HIS ORDER, IN THE CASE OF NAVNEET KUMAR THAKKAR REPORTED IN 298 ITR (AT) 42 IS CLEARLY DISTINGUISHABLE FROM THE FACTS OF THE CASE UNDER CONSIDERATION AS IN THAT CASE, THE ASSESSEE TRANSFE RRED THE PROPERTY BY EXECUTING AN AGREEMENT WHICH WAS NO T REGISTERED AT ALL WITH THE REGISTERING AUTHORITY AN D CONSEQUENTLY THE PROPERTY WAS NOT ASSESSED BY ANY AUTHORITY OF THE STATE GOVERNMENT FOR THE PURPOSE O F PAYMENT OF STAMP DUTY. SIMILARLY, IN THE CASE OF S MT. VIJAYALAKSHMI DHADDHA (SUPRA), POSSESSION OF THE PROPERTY WAS HANDED OVER TO THE BUYER WITHOUT EXECUTING A SALE DEED DURING THE FINANCIAL YEAR REL EVANT TO THE ASSESSMENT YEAR IN QUESTION, WHEREAS IN THE CASE UNDER CONSIDERATION, THE DOCUMENT IS PENDING F OR REGISTRATION AS THE PURCHASER HAD DISPUTED THE VALU E FOR STAMP DUTY PURPOSE AND THE PURCHASER HAS FILED AN APPEAL BEFORE THE HONBLE HIGH COURT OF ANDHRA PRADESH, DISPUTING THE STAMP DUTY VALUE FIXED BY TH E I.T.A. NOS. 357 & 359/HYD/2011 SHRI K. RANJEET MOHAN & ANR. ======================== 3 REGISTRATION DEPARTMENT. SINCE, THE MATTER IS PEND ING BEFORE THE COURT, THE PROPERTY HAS NOT BEEN REGISTE RED TILL TODAY. HENCE, THE PRIMARY CONDITION FOR APPLI CATION OF SECTION 50C OF THE ACT VIZ., REGISTRATION OF THE PROPERTY DOCUMENT, IS NOT FULFILLED. IN THIS VIEW OF THE MATTER, THE ASSESSING OFFICER IS NOT JUSTIFIED IN A DOPTING THE VALUE AS PER SRO, WITHOUT WAITING FOR THE OUTCO ME OF APPEAL RELATING TO STAMP DUTY VALUATION PENDING BEFORE THE HONBLE HIGH COURT. SINCE THE MATTER OF VALUATION FOR STAMP DUTY PURPOSE, IS STILL PENDING BEFORE THE HONBLE HIGH COURT AND NOT CONCLUSIVELY SETTLED , IN THE INTEREST OF THE JUSTICE, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AS SESSING OFFICER WITH A DIRECTION TO DETERMINE THE SALE VALU E OF THE PROPERTY ON THE BASIS OF THE JUDGEMENT OF HONB LE HIGH COURT, AND ACCORDINGLY RE-DETERMINE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AND AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE.' 4. RESPECTFULLY FOLLOWING THE ABOVE ORDER OF THE TRIBU NAL, WE ARE INCLINED TO REMIT THE ISSUE INVOLVED IN THESE A PPEALS BACK TO THE FILE OF THE ASSESSING OFFICER WITH SIMILAR DIRE CTION. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JANUARY, 2012. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 18 TH JANUARY, 2012 COPY FORWARDED TO: 1. THE ASST. COMMISSIONER OF INCOME - TAX, CIRCLE - 10(1), ROOM NO. 515, I.T. TOWERS, AC GUARDS, HYDERABAD. 2. SRI K. RANJEET MOHAN, 1 - 1 - 92, RP ROAD, SECUNDERABAD. 3. SRI K. RAJESH MOHAN, 1 - 1 - 92, RP ROAD, SECUNDERABAD. 3. THE CIT(A) - VI, HYDERABAD. 4. THE CIT - V, HYDERABAD. 5 . THE DR B BENCH, ITAT, HYDERABAD TPRAO