Appeal details
Counselvise Citation
[2021] 108 COUNSELVISE.COM (IT) 3668 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 7 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-05-2021
Appeal Filed By
Department
Order Result
Allowed
Bench Allotted
A
Assessment Year
2015-2016
Appeal Filed On
24-05-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 3579/MUM/2019 (A.Y: 2015-16) ACIT, CIRCLE 22(1) RM NO. 322, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400012. VS. M/S. ASIAN CHEMICAL INDUSTRIES, FLAT NO. 101, MAHIR BUILDING, SANTACRUZ (W), MUMBAI.400054 PAN/GIR NO. : AABAA02702G APPELLANT .. RESPONDENT APPELLANT BY : SHRI AZAR ZAIN , SR. DR RESPONDENT BY : SHRI VEER KUMAR SHAH , AR DATE OF HEARING 08 .0 4 .2021 DATE OF PRONOUNCEMENT 31 .0 5 .2021 / O R D E R PER PAVAN KUMAR GADALE, JM: THE APPEAL IS FILED BY THE REVENUE AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS) -34 MUM BAI, PASSED U/S. 143(3) AND 250 OF THE INCOME TAX ACT, 1 961. THE REVENUE HAS RAISED THE FALLOWING GROUNDS OF APP EAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) IS INCORRECT IN HOLDING THAT THE INCOME ARIS EN FROM SALE OF PROPERTY IS ASSESSABLE IN HANDS OF COOWNERS, WHE N THE AGREEMENT HAS BEEN EXECUTED BY ASSESSEE AOP AND CONSIDERATION HAS BEEN RECEIVED IN ITS BANK ACCOUNT . ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 2 - 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) IS WRONG IN DIRECTING AO TO ALLOCATE THE INC OME ARISEN FROM SALE OF PROPERTY IN THE HANDS OF CO OWNERS, WH EN THE ASSESSEE HAS NOT FURNISHED THE EVIDENCE OF SUCH RED ISTRIBUTION TO CO OWNERS AND DID NOT FILE COPY OF REVISED RETUR N OF INCOME SHOWING THE TRANSACTION OF SALE OF PROPERTY IN THE HANDS OF CO OWNERS AS PER PROVISIONS OF SECTION 50C OF THE ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) ERRED IN VALUING THE PROPERTY ON THE BASIS O F RENTAL VALUE METHOD IGNORING THE REPORT OF DVO WHO IS HAVING SPE CIALIZED SKILL FOR VALUATION OF PROPERTY AND PRESCRIBED AUTH ORITY UNDER THE ACT FOR SUCH PURPOSES. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) ERRED IN ACCEPTING THE GROUNDS OF OBJECTIONS IN RESPECT OF VALUATION OF PROPERTY, WHEN NO SUCH OBJECTION WAS S UBMITTED BEFORE DVO WHILE ONGOING PROCESS OF VALUATION. 5. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ADOPTING METHOD FOR VALUATION O F PROPERTY SOLD WHICH SUGGEST THE VALUE OF PROPERTY TO BE SAME AS ON 01.04.1981 AND DURING F.Y 2014-15 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) ERRED IN VALUING THE PROPERTY AS ON 01.04.1 981 INSTEAD OF SENDING THE MATTER TO THE FILE OF AO FOR VERIFIC ATION THROUGH DVO VIOLATING THE RULE 46A. 7. THE APPELLATE PRAYS THAT THE ORDER OF THE LD. CIT(A ) ON THE ABOVE GROUND BE REVERSED AND THAT THE AO BE RESTORE D. ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 3 - 8. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GR OUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AOP AND OWNS INDUSTRIAL ESTATE CONSTRUCTED MORE THAN 50 YEARS OLD AND INDUSTRIES GALAS IN THE ESTATES AND H AS LET OUT ON LEASE AND DERIVES RENTAL INCOME. THE ASSESSE E HAS FILED THE RETURN OF INCOME ON 28.03.2016 WITH A TOT AL INCOME OF RS 50,75,250/-.SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 14 2(1) OF ACT WERE ISSUED. IN COMPLIANCE, THE LD. AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED THE DOCUMENTS AND EVIDENCES AND THE CASE WAS DISCUSSED. THE A.O. FIND DURING THE FINANCIAL YEAR THE ASSESS EE HAS RECEIVED INCOME FROM HOUSE PROPERTY BEING INDUSTRIA L GALAS. IN THE ASSESSMENT PROCEEDINGS, IT WAS BROUGH T TO THE KNOWLEDGE THAT THE ASSESSEE HAS MADE SALE OF 18 PROPERTIES (GALAS) IN THE INDUSTRIAL COMPOUND ESTA TE AND TOTAL SALE PROCEEDS RECEIVED AS PER SALE DEED IS R S. 65,30,319/-.THE ASSESSEE HAS CALCULATED THE CAPITAL GAINS AFTER CLAIMING THE PROPORTIONATE COST OF ACQUISITI ON OF PROPERTIES. BUT THE A.O FOUND THE MARKET VALUE OF THE PROPERTIES AS DETERMINED BY THE JT.SUB-REGISTER, MU MBAI WAS AT HIGHER RATE, THEREFORE ASSESSEE WAS ASKED TO ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 4 - EXPLAIN THE REASONS FOR NOT ADOPTING TH MARKET VALU E AND THE APPLICABILITY OF PROVISIONS OF SEC. 50C OF THE ACT. 2.1 WHEREAS, THE LD.AR OF THE ASSESSEE DISPUTED THE SUB- REGISTER MARKET VALUE AND REQUESTED THE A.O TO REF ER TO DISTRICT VALUATION OFFICER (DVO) U/S 50C OF THE ACT . WHEREAS, THE D.V.O CONSIDERING THE INFORMATION ON R ECORD AND DIRECTIONS HAS VALUED THE 18 PROPERTIES AT RS. 5,19,27,500/- AS THE MARKET VALUE. WHEN THIS MATTE R WAS PUT BEFORE THE ASSESSEE, THE ASSESSEE VIDE LETT ER DATED 30.11.2017 HAS RAISED THE OBJECTIONS FOR CONSIDERING THE VALUE AS PER THE DVO IN ESTIMATING THE FAIR MARKET VALUE. THE CONTENTIONS AND OBJECTIONS O F THE ASSESSEE ARE THAT THE INDUSTRIAL GALAS WERE CONSTRU CTED 50 YEARS AGO AND THERE ARE 53 TENANTS OCCUPYING TH E PLACE AND ALL THE OCCUPANTS ARE PROTECTED TENANTS U NDER RENT CONTROL ACT AND THE ASSESSEE WAS NOT IN A POSI TION TO REMOVE THE TENANTS AND DETAILS OF THE TENANTS WERE FURNISHED WITH THE A.O. 2.2 WHEREAS, THE A.O FOUND THAT THE DVO HAS SPECIFI CALLY MENTIONED THAT, NOTICE DT 12-11-2017 WAS ISSUED TO THE ASSESSEE IN RESPECT OF DETERMINING THE FAIR MARKET VALUE(FMV) AND THE ASSESSEE WAS PROVIDED OPPORTUNIT Y TO STATE ITS OBJECTIONS IN WRITING ON OR BEFORE 20.11. 2017, BUT NO OBJECTIONS WERE RECEIVED. THEREFORE, THE DVO HAS ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 5 - PASSED THE ORDER DETERMINING THE MARKET VALUE OF RS . 5,19,27,500/-.THE A.O. HAS OBSERVED THAT THE OPPORT UNITY WAS PROVIDED TO THE ASSESSEE TO MAKE THE OBJECTIONS , THE ASSESSEE HAS NOT PLACED ANY OBJECTIONS AND NOW IN T HE ASSESSMENT PROCEEDINGS THE OBJECTIONS CANNOT BE CONSIDERED. THEREFORE, THE A.O. APPLYING THE PROVIS IONS OF SEC. 50C OF THE ACT CONSIDERED THE FAIR MARKET VALU E OF THE PROPERTY AS DETERMINED BY THE DVO OF RS. 5,19,27,500/- AND DEDUCTED PROPORTIONATE COST OF PROPERTIES AND ASSESSED THE TOTAL INCOME OF RS. 5,67,31,580/- AND PASSED ORDER U/S 143(3) OF THE AC T ON 12.12.2017. 3. AGGRIEVED BY THE ORDER OF THE A.O, THE ASSESSEE HAS FILED AN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) CONSIDERED THE GROUNDS OF APPEAL, FINDINGS OF THE A .O, AND THE SUBMISSIONS OF THE ASSESSEE REFERRED AT PAR A 3.1 OF THE CIT(A) ORDER ON THE ISSUE OF ADOPTING THE FA IR MARKET VALUE AS PER DVO OF RS. 5,16,56,333/-.THE CI T(A) HAS OBSERVED THAT THE ASSESSEE FOR THE FIRST TIME MENTIONED THAT THE PROPERTY OWNERSHIP IS BETWEEN TH E THREE CO-OWNERS WHOSE SHARES ARE DETERMINED. THE CI T(A) RELIED ON THE SUBMISSIONS AND THE JUDICIAL DECISION S AT PARA 3.1, PAGE 5 TO 11 OF THE ORDER AND OBSERVED TH AT THE SUBMISSIONS OF THE ASSESSEE ARE REASONABLE AS THERE IS A MISTAKE IN THE DISCLOSING OF INCOME AS PER THE RETU RN OF ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 6 - INCOME AND ALSO OTHER FACTS WERE OVERLOOKED BY THE A.O. THE CIT(A) FINDINGS ON THE SUBMISSIONS ARE CATEGOR ICALLY DEALT AT PARA 4.1 TO 4.7 OF THE ORDER AND ALLOWED T HE GROUND OF APPEAL OF THE ASSESSEE AS UNDER; 4.1 THE FIRST GROUND OF APPEAL IS AGAINST ASSESSIN G THE TOTAL INCOME IN THE HANDS OF A.O.P AT RS. 5,67,31,580/- I NCORRECTLY AS AGAINST THE ASSESSABLE TOTAL INCOME IN THE HANDS OF AOP AT NIL. 4.2. THE A.O. IN HIS ASSESSMENT ORDER HELD THAT TOT AL INCOME ASSESSED IN THE HANDS OF A.O.P IS RS. 5,67,31,580/- MADE UP OF INCOME FROM PROPERTY AT RS. 50,75,250/- AND LONG TE RM CAPITAL GAINS ON SALE OF GALAS AT RS. 5,16,56,333/-. 4.3. DURING THE APPELLATE PROCEEDINGS, IT WAS CONTE NDED BY THE A.R. OF THE APPELLANT THAT THE ASSESSEE CONTENDED THAT THE APPELLANT IS AN AOP COLLECTIVELY OWNING A PROPERTY WHICH IS LET OUT HAVING THREE MEMBERS HAVING DEFINED SHARE IN IN COME AND OWNERSHIP OF PROPERTY. THE DETAILS OF THREE MEMBERS AND THEIR SHARE ARE AS FOLLOWS: SR.NO NAME OF THE MEMBER SHARE PAN 1 SHRI DINESH BHUVA 30% AAAPB8897N 2 SHRI RAJESH BHUVA 30% AAAPB8898D 3. SMT. RASILA BHUVA 40% AGBPB4818 4.5. THE RETURN OF INCOME WAS ORIGINALLY FILED BY T HE APPELLANT DECLARING TOTAL INCOME OF RS. 50,75,250/- AS INCOME FROM HOUSE PROPERTY. THIS RENTAL INCOME IS FROM THE INDUSTRIAL GALAS LET OUT TO THE TENANTS SINCE SEVERAL YEARS. THE APPELLANT HAS NO BUSINESS ACTIVITY OR BUSINESS INCOME. ONLY INCOME EARNED IS INCOME FROM PROPERTY. THE CO-OWNERS DECIDED TO CONVERT THE INDU STRIAL ESTATE BY GRANTING OWNERSHIP RIGHT TO PROTECTED TENANT OCC UPANTS. DURING THE YEAR, YOUR APPELLANT GOT OFFERS AND MONE Y AND THEY ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 7 - GRANTED WILLING 18 TENANTS THE OWNERSHIP RIGHTS. 4.6. THE APPELLANT WHILE FILING THE ORIGINAL RETURN OF INCOME HAD INCORRECTLY INCLUDED THIS AMOUNT OF SALE PROCEEDS O F GALAS AS ADVANCE RENT RECEIVED WHICH WAS INCLUDED IN TOTAL I NCOME AS INCOME FROM HOUSE PROPERTY AND CLAIMED A DEDUCTION ON THE SAME @ 30%. SUCH SALE PROCEEDS OUGHT TO HAVE BEEN TREATE D AS SALES PROCEEDS FOR COMPUTATION OF CAPITAL GAINS. HOWEVER, TIME LIMIT TO REVISE THE RETURN HAD LAPSED AND THUS HE COULD NOT FILE THE REVISED RETURN ONLINE. THEREFORE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A REVISED COMPUTATION OF INCOME WAS FI LED WITH THE A.O. VIDE LETTER DATED 12TH JULY, 2017. THE REVISED COMPUTATION OF TOTAL INCOME INCLUDES INCOME FROM PROPERTY AMOUN TING TO RS. 96,139/- AND LONG TERM CAPITAL LOSS OF RS. 5,32,37 ,693/- AND NO INCOME IS OFFERED AS BUSINESS INCOME AS THERE IS NO BUSINESS ACTIVITY. THIS GAINS ON THE PART PROPERTY CO-OWNED BY MEMBERS AND HENCE INCOME IS ALLOCABLE AMONGST CO-OWNERS. TH E APPELLANT HAS REGULARLY BEEN OFFERING ONLY RENTAL INCOME FOR TAXATION FOR EARLIER YEARS. FURTHER, I WOULD LIKE TO DRAW YOUR ATTENTION TO THE FOLLOWING WRITE-UP AT PAGE NO. 2754 OF INCOME TAX LAW, FIFTH EDITION, VOLUME 2 BY CHATURVEDI & PITHISARIAS. 'WHERE PROPERTY OWNED BY MORE THAN ONE PERSON IS TR ANSFERRED, EACH CO OWNER IS TO BE SEPARATELY ASSESSED IN RESPE CT OF THAT PORTION OF CAPITAL GAIN ARISING FROM TRANSFER' WHIC H PERTAINS TO HIS SHARE IN THE TRANSFERRED PROPERTY /C.G.GHANSHAMDAS V. CIT(1979) 116 ITR 212 (MAD.)]. THE ENTIRE CAPITAL C ANNOT BE TAXED IN THE HANDS OF AN ASSOCIATION OF PERSONS OR BODY O F INDIVIDUALS CONSTITUTED OF THE CO-OWNERS' 4.7. IT IS EVIDENT FROM THE RECORDS OF THE ASSESSEE THAT IT ONLY EARNS INCOME DERIVED FROM PROPERTIES AND DOES NOT C ARRY ANY BUSINESS ACTIVITY. IN THIS INSTANCE, SECTION 26 BEC OMES OPERATIVE. THE SHARES OF THE CO-OWNERS ARE DEFINED AND ASCERTA INABLE, AS PER THE PROVISION OF SEC.26, INCOME FROM SUCH PROPE RTY IS TO BE ALLOCATED IN THE HANDS OF CO-OWNERS IN THEIR RESPEC TIVE SHARES. IN RESPECT OF ANY INCOME UNDER THE HEAD OF CAPITAL GAI NS, WHEN A ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 8 - PROPERTY IS OWNED BY 2 OR MORE PERSONS, ENTIRE SALE CONSIDERATION IS APPORTIONED IN ACCORDANCE WITH THE SHARE OF EACH OF THE CO- OWNERS OF THE PROPERTY. AS DECIDED IN THE CASE REFE RRED IN C.G. GHANSHAMADAS V. CIT,(1979) 116 ITR 212(MAD) EACH ON E OF THE CO-OWNERS IS LIABLE TO BE ASSESSED SEPARATELY IN RE SPECT OF THEIR SHARE OF CAPITAL GAINS ARISING ON THE SALE OF PROPE RTY. IN THE VERY CASE, THE ASSESSEE DOES NOT HOLD ANY OWNERSHIP TO S UCH PROPERTY AND THEREFORE, ANY INCOME ARISING FROM SUCH SALE CA NNOT BE TAXED IN THE HANDS OF ASSESSEE. THEREFORE, I CONCLUDE THA T INCOME ARISING FROM HOUSE PROPERTY AND CAPITAL GAINS RELAT ING TO SUCH PROPERTY SHALL BE ALLOCATED AND COMPUTED IN THE HAN DS OF CO- OWNERS. THE A.O IS DIRECTED TO ALLOCATE THE TOTAL I NCOME DETERMINED AMONGST CO-OWNER MEMBERS AND NOT TO ASSE SS ANY TAXABLE INCOME IN THE HANDS OF APPELLANT. THUS, THI S GROUND OF APPEAL IS ALLOWED. 3.1 THE GROUND OF APPEAL NO.2 IS WITH RESPECT TO ALLOCATION AND CLAIM OF DEDUCTION INCOME FROM HOUSE PROPERTY. THE CIT(A) HAS OBSERVED THAT THE ASSESSEE S CLAIM ON THE REVISED COMPUTATION OF INCOME HAS TO B E CONSIDERED AND ASSESSEE CANNOT BE TAXED TWICE AND D EALT AT PARA 5.4 OF THE ORDER. SIMILARLY, ON THE OTHER G ROUNDS OF APPEAL, THE CIT(A) IS OF THE OPINION THAT THE A DOPTION OF THE DVO VALUE IS NOT CORRECT AND DIRECT THE SALE CONSIDERATION REALIZED HAS TO BE CONSIDERED REFERE D AT PARA 6.6 OF THE ORDER. THE CIT(A) ON THE ISSSUE OF INDEXED COST OF ACQUISATION HAS MADE THE SPECIFICE CALCULA TIONS AS REFERRED AT PARA 7.2 OF THE ORDER AND PARTLY ALL OWED THE ASSESSEE APPEAL. AGGRIEVED BY THE ORDER OF THE CIT (A), THE REVENUE HAS FILED AN APPEAL BEFORE THE HONBLE TRIBU NAL. ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 9 - 4. AT THE TIME OF HEARING, THE LD.DR SUBMITTED THA T THE CIT(A) HAS ERRED IN OBSERVING THAT THE INCOME DERIV ED FROM THE SALE OF THE PROPERTIES IS ASSESSABLE IN TH E HANDS OF THE CO-OWNERS. FURTHER, THE ASSESSEE HAS NOT FIL ED THE REVISED RETURN OF INCOME IN RESPECT OF THE INCOME I N THE HANDS OF THE CO-OWNERS. IN RESPECT OF NON APPLICA TION OF FAIR MARKET VALUE(FMV) DETERMINED BY THE DVO WHO IS SPECIALIZED IN VALUATION OF PROPERTY AND FURTHER TH E ASSESSEE HAS NOT FILED OBJECTIONS BEFORE THE DVO WH ILE DETERMINING THE FAIR MARKET VALUE. THERE IS VIOLATI ON OF THE PROVISIONS OF RULE 46A OF IT RULES AS THE CIT(A ) HIMSELF HAS VALUED THE PROPERTY AS ON 1-4-1981 WITH OUT REFERRING TO THE DVO AND THE LD.DR RELIED ON THE OR DER OF THE ASSESSING OFFICER AND PRAYED FOR ALLOWING THE R EVENUE APPEAL. 5. CONTRA, HE LD. AR RELIED ON THE ORDER OF THE CIT (A). THE CONTENTIONS OF THE LD.AR THAT THE SALE OF THE PROPERTIES IS HELD BY THE CO-OWNERS AND HAS TO BE TAXED IN THEIR HANDS AND NOT IN THE STATUS OF THE AOP. TH E FAIR MARKET VALUE DETERMINED BY THE DVO IS NOT APPLICABL E CONSIDERING THE LEGAL HURDLES WITH THE TENANTS AND PRAYED FOR DISMISSAL OF THE REVENUE APPEAL. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA-FACIE THE REVENUE HAS FI LED THE ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 10 - APPEAL ON THE THREE DISPUTED ISSUES. (I) WHETHER TH E INCOME ON SALE OF PROPERTY IS ASSESSABLE IN THE HAN DS OF CO-OWNERS, WHEREAS THE AGREEMENT HAS BEEN RENEWED B Y AOP.(II) ADOPTION OF FAIR MARKET VALUE(FMV) DETERM INED BY THE DVO AND THE ASSESSEE WAS PROVIDED OPPORTUNIT Y TO FILE OBJECTIONS.(III) WHETHER THE CIT(A) HAS POWER TO VALUE THE PROPERTY AS ON 1-4-198. WE HAVE CONSIDERED THE FACTS IN RESPECT OF CO-OWNERSHIP BENEFICIARIES SUBMITTED IN THE APPELLATE PROCEEDINGS.ON PERUSAL OF THE ASSESSMENT ORDER, THESE ASPECTS WERE NEVER DEALT BEFORE THE A. O. WHEREAS THE A.O. HAS ONLY CONSIDERED THE SALE CONSIDERATION AND APPLIED THE DVO VALUE. THE LD.CIT (A) HAS OBSERVED THAT THE INCOME FROM THE PROPERTY AND CAPITAL GAINS RELATED TO THE PROPERTY HAS TO BE ALL OCATED AND COMPUTED IN THE HANDS OF THE CO-OWNERS AND NOT IN THE HANDS OF THE ASSESSEE. WE FIND THAT THE ASSESS EE HAS RAISED THE CONTENTIONS THAT IT IS AN A.O.P AND THE THREE CO OWNERS SHARES ARE DETERMINED AND THERE IS A M ISTAKE OCCURRED IN THE HANDS OF THE ASSESSEE IN OFFERING THE INCOME INSTEAD OF IN THE HANDS OF THREE CO OWNER S OF THE PROPERTY. THE ASSESSEE CAN NOT RECTIFY THE CLAIM B Y FILLING A REVISED COMPUTATION OF INCOME, BUT AS PER THE OBSERVATIONS OF THE HONBLE SUPREME COURT IN THE CAS E OF GOETZE (INDIA) LTD VS CIT (2006) 284 ITR 323 (SC), THE ASSESSEE HAS TO FILE THE REVISED RETURN OF INCOME FOR SUCH ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 11 - CLAIMS BEFORE THE A.O.BUT THE ASSESSEE CHOOSES TO F ILE REVISED COMPUTATION OF INCOME AND NOT REVISED RETUR N OF INCOME. FURTHER, WE FIND THAT THE CIT(A) HAS CONSID ERED THE CLAIM OF THE ASSESSEE AND OBSERVED THAT THE GAI NS ON SALE OF PROPERTY SHALL BE ALLOCATED AMONG THE CO-OW NERS. BUT THE POINT TO BE CONSIDERED THAT THE THREE CO- OWNERS HAVE NOT FILED THEIR RETURN OF INCOME OFFERING THE GAINS ON SALE OF THE PROPERTY. FURTHER THE CIT(A) IS NOT A A PPELLATE AUTHORITY FOR THE THREE CO OWNERS AND THEREFORE THE CIT(A) FINDINGS ARE NOT ACCEPTED. THE ASSESSEE SHOULD FILE THE REVISED RETURN OF INCOME AS PER THE RATIO OF THE SU PREME COURT DECISION AND THEN THE ASSESSING OFFICERS HAS TO DETERMINE/ASSESSEE THE TOTAL INCOME. 7. WE CONSIDERING THE FACTS AND CIRCUMSTANCES, SET ASIDE THE FINDINGS OF THE CIT(A) IN THIS GROUND OF APPEAL AND RESTORE ENTIRE DISPUTED ISSUE TO THE FILE OF THE AS SESSING OFFICER TO ADJUDICATE A FRESH AND THE ASSESSES SH ALL FILE THE REVISED RETURN OF INCOME. THE A.O. SHALL NOT BE INFLUENCED BY THE OBSERVATIONS IN THE CIT(A) ORDER. THE A.O. SHOULD INDEPENDENTLY ALSO VERIFY THAT THE INCO ME IS OFFERED IN THE HANDS OF THE THREE CO-OWNERS. THE AS SESSE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING AND SHALL CO OPERATE IN SUBMITTING THE INFORMATION AND WE ALLOW THE GROUNDS OF APPEAL FOR STATISTICAL PURPOS E. ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 12 - IN RESPECT OF OTHER TWO DISPUTED ISSUES OF FAIR MA RKET VALUE(FMV) TO BE ADOPTED AND THE VALUATION OF PROP ERTY AS 1-4-1981, WE ARE OF THE SUBSTANTIVE OPINION THAT THE ASSESSE CAN MAKE CLAIMS BEFORE THE ASSESSING OFFICE R. SINCE WE HAVE RESTORED THE DISPUTED ISSUES TO THE F ILE OF THE ASSESSING OFFICER AS DISCUSSED ABOVE, WE ARE OF VIEW THAT THESE TWO ISSUES ARE ALSO RESTORED TO THE FIL E OF THE ASSESSING OFFICER TO CONSIDER AND ADJUDICATE ON MER ITS AND ALLOW THE GROUNDS OF APPEAL OF THE REVENUE FOR STAT ISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES.. ORDER PRONOUNCED IN THE OPEN COURT ON 31.05.2021 SD/- SD/- ( SHAMIM YAHYA ) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 31.05.2021 KRK, PS ITA NO. 3579/MUM/2019 M/S. ASIAN CHEMICAL INDUSTRIES, MUMBAI - 13 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) 4. ( ) / CONCERNED CIT 5. !!' , $ % , / DR, ITAT, MUMBAI 6. () * + / GUARD FILE. / BY ORDER, ! //TRUE COPY// 1. ( ASST. REGISTRAR) ITAT, MUMBA I
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