Shri Vinod Kumar Guru, Jabalpur V. Income Tax Officer Ward 2(1), Jabalpur

ITA 38/JAB/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1043 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: I B KHANDELDR
• Keywords: Fair market value; Set aside
• Section: 147

Judgement Text

ITA NO.38/JAB/2019 (AY 2012-13) VINOD KUMAR GURU V. ITO 1 | PAGE IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR SMC BENCH, JABALPUR [THROUGH VIRTUAL HEARING] BEFORE SHRI NRS GANESAN, JUDICIAL MEMBER ITA NO.38/JAB/2019 ASSESSMENT YEAR: 2012-13 SHRI VINOD KUMAR GURU, BUNGLOW NO.5/23, MERIDIAN BUNGLOWS, OPP. VC BUNGLOW, PACHPEDI, JABALPUR (MP) 482001 (PAN AEWPG 9128D) VS. INCOME TAX OFFICER, WARD 2(1),AYAKARBHAWAN, ANNEXE BUILDING, MISSION CHOWK, JABALPUR (M.P.) (APPELLANT ) (RESPONDENT) APPELLANT BY SHRI RAHUL BARDIA, CA RESPONDENT BY SHRI I B KHANDEL,DR DATE OF HEARING 17/11/2020 DATE OF PRONOUNCEMENT 17 /11/2020 ORDER PER NRS GANESAN, JM: 1. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-1, JABALPUR DATED 02.4.2019 AND PERTAINS TO AY 2012-13 . 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS DETE RMINATION OF FAIR MARKET VALUE AS ON 01.04.1981 IN RESPECT OF THE PROPERTY S OLD BY ASSESSEE AT BHOPAL ALONG WITH HIS BROTHER, SHRI SURENDRA KUMAR GURU. S HRI RAHUL BARDIA, LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE ALONGWITH HIS BROTHER SOLD A PROPERTY AT BHOPAL FOR RS.3.00 CRORE S. THE ASSESSEE VALUED THE PROPERTY AS ON 01.04.1981 AT RS.6,37,000/-AND AFTER INDEXATION, ARRIVED THE VALUE AT RS.50,00,450/-, HAVING INVESTED RS.99,99,9 50/- IN THE CAPITAL GAIN ACCOUNT. THE ASSESSEE CLAIMED NIL CAPITAL GAIN. HOW EVER, THE AO, ON THE BASIS ITA NO.38/JAB/2019 (AY 2012-13) VINOD KUMAR GURU V. ITO 2 | PAGE OF REPORT SAID TO BE RECEIVED FROM INCOME TAX OFFIC ER (I&C), BHOPAL, REOPENED THE ASSESSMENT AND ESTIMATED THE FAIR MARKET VALUE AS ON 01.04.1981 AT RS.1,97,758/-. HOWEVER, IN THE CASE OF ASSESSEES B ROTHER, THE RETURN WAS NOT SELECTED FOR SCRUTINY. LD. REPRESENTATIVE OF THE AS SESSEE FURTHER SUBMITTED THAT THE ASSESSEES BROTHER, SHRI SURENDRA KUMAR GURU FI LED THE RETURN OF INCOME FOR THE AY 2012-13 ON 27.08.2012 VIDE ACKNOWLEDGMEN T NO. 6197520102255. HAVING NOT SELECTED THE RETURN FOR SCRUTINY AND FAI LED TO ISSUE NOTICE U/S. 147 EVEN AFTER THE REPORT RECEIVED FROM INCOME TAX OFFI CER, BHOPAL IN RESPECT OF ASSESSEES BROTHER, ACCORDING TO LD. REPRESENTATIVE FOR THE ASSESSEE, THE FAIR MARKET VALUE DECLARED BY THE ASSESSEE FOR AY 2012-1 3 FOR COMPUTING THE CAPITAL GAIN CANNOT BE DISTURBED. THE LD. REPRESENT ATIVE FOR THE ASSESSEE FURTHER SUBMITTED THAT IN RESPECT OF PROPERTY SOLD BY THE ASSESSEE AND HIS BROTHER AT BHOPAL, THERE CANNOT BE TWO DIFFERENT FA IR MARKET VALUE, ONE FOR THE PRESENT ASSESSEE AND ANOTHER FOR HIS BROTHER. THERE FORE, THE FAIR MARKET VALUE DETERMINED BY THE AO CANNOT STAND IN THE EYE OF LAW . 3 ON THE CONTRARY, SHRI I.B. KHANDEL, LD. DR SUBM ITTED THAT IT IS NOT KNOWN WHETHER THE ASSESSEES BROTHER HAS FILED THE RETURN OF INCOME OR NOT. DUE TO BIFURIICATION OF DEPARTMENT, THE RETURN OF THE ASSE SSEE COULD NOT BE TRACED, THEREFORE, THE DEPARTMENT IS NOT IN A POSITION TO C LARIFY WHETHER THE RETURN OF THE ASSESSEES BROTHER WAS TAKEN FOR SCRUTINY OR NO T. THE AO WAS ALSO DIRECTED TO JOIN THE VIDEO CONFERENCE HEARING. ACCORDINGLY, THE AO OF THE ASSESSEES BROTHER AT INDORE HAS ALSO JOINED AND HE EXPLAINED THAT AS PER THE RECORD AVAILABLE BEFORE HIM THE RETURN OF INCOME FILED BY THE ASSESSEES BROTHER, SHRI SURENDRA KUMAR GURU IS NOT TAKEN FOR SCRUTINY AND A S PER THE RECORD, NO NOTICE WAS ISSUED U/S. 147 ALSO. DUE TO TRANSITION OF THE DEPARTMENT TO FACELESS ASSESSMENT, THE ASSESSEES RECORDS WERE ALSO NOT TR ACEABLE. 4. HAVING HEARD THE LD. REPRESENTATIVE OF THE ASSES SEE AND LD. DEPARTMENTAL REPRESENTATIVE,THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IN RESPECT OF THE PROPERTY AT BHOPAL L, THERE CANNOT B E TWO DIFFERENT FAIR MARKET VALUE AS ON 01.04.981. EVEN THOUGH THE FAIR MARKET VALUE IS NOT A CONSTANT FIGURE, IT MAY FLUCTUATE DEPENDING UPON VARIOUS FAC TOR DEPENDING UPON THE MARKET CONDITION, THERE SHOULD BE ONLY ONE FAIR MAR KET VALUE FOR ASSESSEE AND HIS BROTHER, SHRI SURENDRA KUMAR GURU. EVEN THOUGH THE AO AND THE DEPARTMENTAL REPRESENTATIVE CLAIMS THAT THE RETURN FILED BY SHRI SURENDRA ITA NO.38/JAB/2019 (AY 2012-13) VINOD KUMAR GURU V. ITO 3 | PAGE KUMAR GURU, THE ASSESSEES BROTHER IS NOT TRACEABLE , THE LD. REPRESENTATIVE OF THE ASSESSEE HAS CLEARLY MENTIONED THE ACKNOWLEDGEM ENT NUMBER AND THE DATE OF FILING. WITH THIS PARTICULARS, THE DEPARTME NT COULD VERIFY THE RETURN OF INCOME. HOWEVER, DUE TO SOME TECHNICAL DEFECT OR FA ULT, THE AO CLAIM THAT THE SAME IS NOT TRACEABLE. IF THE DEPARTMENT COULD NOT TRACE THE RETURN FILED BY SHRI SURENDRA KUMAR GURU, THE ASSESSEE CANNOT BE MA DE TO SUFFER. THE FACT REMAINS THAT IN THE RETURN FILED BY THE ASSESSEE BR OTHER DECLARING THE FAIR MARKET VALUE OF THE SAME PROPERTY WAS ACCEPTED BY T HE DEPARTMENT, THEREFORE, THE SAME CANNOT BE DISTURBED FOR THE PRE SENT ASSESSEE ALSO. THIS TRIBUNAL IS CONSCIOUS OF THE FACT THAT THE PRINCIPL ES OF RES-JUDICATA IS NOT APPLICABLE TO THE INCOME TAX PROCEEDINGS. HOWEVER, IT IS WELL SETTLED PRINCIPLES OF LAW THAT CONSISTENCY IS THE HALLMARK OF JUDICIAL PROCEEDINGS. MOREOVER, PUBLIC POLICY REQUIRES CONSISTENCY. HAVING ACCEPTED THE VALUE FOR SHRI SURENDRA KUMAR GURU, THE BROTHER OF THE ASSESSEE, THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT THE FAIR MARKET VALUE DECLARED BY THE ASSESSEE FOR COMPUTING THE CAPITAL GAIN CANNOT BE DISTURBED. THEREFORE THIS TR IBUNAL IS UNABLE TO UPHOLD THE ORDERS OF BOTH THE AUTHORITIES BELOW. ACCORDING LY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ADDITION MA DE BY THE AO AS CONFIRMED BY CIT(A) IS DELETED 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17TH N OVEMBER 2020 SD/- (N.R.S.GANESAN) JUDICIAL MEMBER DATED: 17/11/2020 AKS(P) //TRUE COPY//